Gordon v. Ford Motor Co.

PETTY, J.,

concurring.

While I agree with the reasoning and the outcome of the majority opinion, I write separately to express a slightly broader rationale for our decision.

*625First, in construing the statute, we must give meaning to all the words used. See Brandt v. Maha Lakshmi Motors, Inc., 48 Va.App. 493, 498, 632 S.E.2d 628, 631 (2006) (“When interpreting a statute, we must give every word some meaning where possible. To that end, we must evaluate each word within the entire phrase of which it is a part.” (internal citations omitted)). Here, the legislature was specific when it defined the nature of the twenty-four-month period in Code § 65.2-708(C): the twenty-four months must be consecutive. The word “consecutive” means “successive; succeeding one another in regular order; to follow in uninterrupted succession.” Black’s Law Dictionary 304 (6th ed.1990); see also Am. Heritage Dictionary 313 (2d ed. 1982) (“Following one after another without interruption.”); Hudson v. Youell, 179 Va. 442, 465, 19 S.E.2d 705, 715 (1942) (Hudgins, J., dissenting) (quoting Webster’s Int’l Dictionary to define “consecutive” as “ ‘[following a train; succeeding one another in a regular order; having no interval or break; sequent’”). Each month of that twenty-four-month period must “follow in uninterrupted succession.” Black’s Law Dictionary, swpra at 304. Hence, under the plain language of the statute, if there is a break in that uninterrupted succession—as happened when Gordon intermittently received disability benefits rather than light-duty wages—the tolling period must begin anew upon a subsequent period of light-duty employment and continues until twenty-four consecutive months have been reached. Or, in other words, the statute does not permit a combination of multiple periods of shorter duration to end the tolling provisions of subsection C. And, if multiple periods of shorter duration do not satisfy the twenty-four consecutive month period, it is illogical to think that a single period of shorter duration would do so. Had the General Assembly intended the statute to apply to any period of shorter duration, it simply would have omitted the word “consecutive” and defined the period as “not to exceed twenty-four months.”

Second, I believe that this interpretation is consistent with our stated purpose of the statute. According to our decision in Scott v. Scott, 16 Va.App. 815, 819, 433 S.E.2d 259, 262 *626(1993), Code § 65.2-708(0 exists “to prevent employers from lulling partially disabled workers into a false sense of security ... by providing employees light duty work at their pre-injury wage for two years and then terminating the employee without liability for future disability benefits.” The dissent’s interpretation of Code § 65.2-708(0 would cut off the tolling provision at the end of a claimant’s first period of light-duty employment—no matter how short the duration of that employment. Thus, after only one day of light-duty employment an employer could temporarily lay off a claimant, who would then receive temporary total disability benefits. After the claimant’s return to light-duty employment for two years (the duration of the statute of limitations in subsection A), the employer could terminate the claimant with no further workers’ compensation liability. This result runs contrary to the intent behind the statute, and renders subsection C meaningless.

Finally, I must take issue with the dissent’s suggestion that this interpretation ignores the phrase “not exceeding.” The facts of this case demonstrate how this phrase is consistent with our reading of the statute. Here, Gordon worked in a light-duty capacity from April 20, 2003 through September 11, 2006. However, only a portion of that total period—from April 20, 2003 through April 19, 2005—did not exceed twenty-four months. Thus, after April 20, 2005 Gordon’s light-duty wages were no longer deemed compensation and the limitation period of subsection A began.

HALEY, J.,