Gordon v. Ford Motor Co.

dissenting.

I respectfully dissent. I would hold Code § 65.2-708(0 provides only one extension of the statute of limitations contained in Code § 65.2-708(A). Since the time provided by the statute of limitations, even with the extension contained in subsection (C), expired before Gordon filed his claim, I would hold Gordon’s claim time-barred.

In relevant part, Code § 65.2-708 states:

*627A. Upon its own motion or upon the application of any party in interest, on the ground of a change in condition, the Commission may review any award and on such review may make an award ending, diminishing or increasing the compensation previously awarded, subject to the maximum or minimum provided in this title, and shall immediately send to the parties a copy of the award.... No such review shall be made after twenty-four months from the last day for which compensation was paid, pursuant to an award under this title____
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C. All wages paid, for a period not exceeding twenty-four consecutive months, to an employee (i) who is physically unable to return to his pre-injury work due to a compensable injury and (n) who is provided work within his capacity at a wage equal to or greater than his pre-injury wage, shall be considered compensation.

When examining the meaning of a statute, we look first to its plain language. Alcoy v. Valley Nursing Homes, Inc., 272 Va. 37, 41, 630 S.E.2d 301, 303 (2006). To this end, “we examine the statute in its entirety, rather than by isolating particular words or phrases.” Earley v. Landsidle, 257 Va. 365, 369, 514 S.E.2d 153, 155 (1999). The Court assumes the General Assembly carefully chose the terms used. Simon v. Forer, 265 Va. 483, 490, 578 S.E.2d 792, 796 (2003). We may not “add language to the statute the General Assembly has not seen fit to include,” Jackson v. Fid. & Deposit Co., 269 Va. 303, 313, 608 S.E.2d 901, 906 (2005) (citation omitted), or give statutory terms of definite meaning “a construction that amounts to holding that the General Assembly meant something other .than that which it actually expressed,” Lee County v. Town of St. Charles, 264 Va. 344, 348, 568 S.E.2d 680, 682 (2002). When the statutory language is clear, “we are bound by the plain meaning of that language.” Vaughn, Inc. v. Beck, 262 Va. 673, 677, 554 S.E.2d 88, 90 (2001).

*628The statutory interpretation at issue here concerns a pure question of law, and so we review the commission’s decision de novo. Town of Waverly Law Enforcement v. Owens, 51 Va.App. 277, 280, 657 S.E.2d 161, 163 (2008). We keep in mind that while “the Workers’ Compensation Act is to be construed liberally in favor of the employee,” Hospice Choice, Inc. v. O’Quin, 42 Va.App. 598, 603, 593 S.E.2d 554, 556 (2004), the commission’s interpretation of the Act has highly persuasive value, Peacock v. Browning Ferris, Inc., 38 Va.App. 241, 248, 563 S.E.2d 368, 372 (2002).

Code § 65.2-708(C) states that when an employee lacks the physical ability to perform his work because of a compensable injury, his employer provides him with other work suitable to his new capacity, and the wages from that work equal or exceed the pre-injury pay, those wages toll the statute of limitations for filing a change-in-condition application under Code § 65.2-708(A) up to twenty-four months. See Scott v. Scott, 16 Va.App. 815, 818, 433 S.E.2d 259, 261 (1993). An employee meeting the statutory conditions receives “an additional twenty-four months before the statute of limitations of Code § [65.2-708(A) ] begins to run.” Greene v. Gwaltney of Smithfield, Inc., 13 Va.App. 486, 492, 413 S.E.2d 650, 654 (1992). Code § 65.2-708(C) “operates solely to extend the limitation period of Code § [65.2-708(A) ]____ Code § [65.2-708(C) ] has no applicability, except with reference to Code § [65.2-708(A) ].” Cohen v. Fairfax Hosp. Ass’n, 12 Va.App. 702, 707, 407 S.E.2d 329, 332 (1991). The General Assembly enacted Code § 65.2-708(0 “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.” Nguyen v. Fairfax County Bd. of Supervisors, 26 Va.App. 100, 103, 493 S.E.2d 391, 392 (1997) (citation omitted).

I would hold that the language of Code § 65.2-708(0 provides only one extension of the statute of limitations contained in Code § 65.2-708(A). The Code contains this limitation by authorizing tolling of “a period not exceeding twenty-*629four consecutive months.” Code § 65.2-708(C) (emphasis added).

Although the majority holds the General Assembly intended to permit multiple periods of extension, our case law shows the language of “a period” contemplates only one period. Our Supreme Court addressed this issue in Corns v. School Board of Russell County, 249 Va. 343, 454 S.E.2d 728 (1995). There the Court considered the meaning of statutory language requiring “[a] probationary term of service for three years” for teachers. Id. at 349, 454 S.E.2d at 732. The Court held that while the phrase “service for three years” could “be interpreted as service in each of three intermittent school years ... [t]he words ‘a term’ mean one such period.” Id.; see also Van Dresser v. Firlings, 305 Mass. 51, 24 N.E.2d 969, 970 (1940) (“The word ‘period’ as applied to time carries with it the idea of the separation of a designated interval of time from the flow of time in general. The words ‘a period’ do not readily expand to include an irregular succession of times or periods of varying length____”). As applied here, the language in Code § 65.2-708(0 of “a period” likewise means one period. It was not necessary for the General Assembly to use the word “one” to indicate one period.

If the General Assembly had intended to permit multiple periods of tolling under Code § 65.2-708(C), it could have easily done this by writing the statute to authorize “periods not exceeding twenty-four consecutive months.” It seems more rational to use the plural to mean the plural than to use the singular to mean the plural, as the majority holds. Long ago Justice Hudgins suggested as much when he remarked that “it would be unreasonable to state that ‘periods’ refer to ‘one single term.’ ” Hudson v. Youell, 179 Va. 442, 465, 19 S.E.2d 705, 716 (1942) (Hudgins, J., dissenting); cf. Rasmussen v. Commonwealth, 31 Va.App. 233, 237-39, 522 S.E.2d 401, 403-04 (1999) (holding that where a scientific test took multiple samples to produce a single result and the statute gave the defendant the right to observe the “breath test,” “sample,” and “blood alcohol reading,” phrased in the singular, the defendant only had the right to see the final printed result).

*630When combined with the language of a single period, the statutory grant of an extension “not exceeding twenty-four consecutive months” also evidences an intent to limit tolling to a defined period. Code § 65.2-708(C). The term “not exceeding” is defined: “Usually a term of limitation only, denoting uncertainty of amount.” Black’s Law Dictionary 1061 (6th ed.1990). Our Supreme Court has referred similarly to the term, calling it “clear words of limitation.” Southern Ry. Co. v. Commonwealth, 206 Va. 831, 836, 147 S.E.2d 72, 75 (1966). Another court stated that “not exceeding” means an amount “shall not be more, but may be less.” Stuyvesant Ins. Co. v. Jacksonville Oil Mill, 10 F.2d 54, 56 (6th Cir.1926). The court remarked that any other interpretation “does violence to the plain and unambiguous language.” Id. Still another court held that where a contract required a company to operate a business “for a period ‘not to exceed sixty days,’ ” any amount up to sixty days satisfied the contract. Union Liquors, Inc. v. Finkel & Lasarow, Inc., 44 Cal.App.2d 706, 113 P.2d 19, 21 (1941). Thus, the words “not exceeding” in Code § 65.2-708(C) reveal the General Assembly’s intention to limit the tolling of the statute of limitations to up to, but no more than twenty-four consecutive months. See also Rohanna v. Commonwealth, 168 Va. 696, 701, 190 S.E. 171, 173 (1937) (holding that where a statute authorized a court to require a criminal defendant to give a bond for “a term not exceeding one year,” the court lacked power to require bonds beyond the term of the initial year); Cox v. Hagan, 125 Va. 656, 680, 100 S.E. 666, 674 (1919) (using “not exceeding” to refer to up to a maximum amount). Twenty-four consecutive months represents the maximum extension.

The majority’s conclusion allows numerous periods of tolling, thereby negating the General Assembly’s intent that the tolling not exceed twenty-four consecutive months. Suppose, for example, that an employee sustains a compensable injury, then works forty-seven months in a job tolling the statute of limitations for the first twenty-four months. The employee then briefly leaves work and collects benefits due to the injury. Under the majority’s holding, such an employee re*631ceives an additional twenty-four months of tolling upon returning since the statute of limitations under Code § 65.2-708(A) never fully expired. I believe this runs plainly contrary to the General Assembly’s intent to provide a limited benefit of tolling.7

The concurrence’s conclusion that the term “consecutive” means the period of extension described in Code § 65.2-708(C) must run until reaching twenty-four months misconstrues the statutory language of “not exceeding.” As mentioned above, the term “not exceeding” is defined: “Usually a term of limitation only, denoting uncertainty of amount.” Black’s Law Dictionary, supra at 1061. “The words ‘not exceeding,’ in themselves, are words not of grant or apportionment, but of limitation only, and standing alone are ordinarily so construed.” City of Kingsville v. Meredith, 103 F.2d 279, 281-82 (5th Cir.1939); see also Boston & M.R.R. v. United States, 265 F. 578, 579 (1st Cir.1920). “The words denote uncertainty of amount. Such language imposes no duty to adopt the maximum amount rather than some lesser amount authorized.” Saxhaug v. County of Jackson, 215 Minn. 490, 10 N.W.2d 722, 724 (1943) (citation omitted). Hence, the meaning of a term “not exceeding twenty-four consecutive months” is a period up to, but no more than twenty-four consecutive months. Any length of time from a day to two years is a period not exceeding twenty-four consecutive months. As the dictionary states, the time is unspecified. Yet for the concurrence, the statute specifies a twenty-four month period. This changes the language of “a period not exceeding twenty-four consecutive months” to “a period equal to twenty-four consecutive months.” I cannot reconcile “not exceeding” with “equal to.”

*632Further contrary to the concurrence and generally supporting my position, the General Assembly could have good reason to include the word “consecutive” without intending to guarantee a full twenty-four-month period. Consecutive is defined: “Successive; succeeding one another in regular order; to follow in uninterrupted succession.” Black’s Law Dictionary, swpra at 304; see also Hudson, 179 Va. at 465, 19 S.E.2d at 715 (Hudgins, J., dissenting) (quoting Webster’s International Dictionary to define “consecutive” as “ ‘[following in a train; succeeding one another in a regular order; having no interval or break; sequent ’ ”). This Court has further noted that as applied to time the inclusion of the word consecutive connotes a definite period. Va. Employment Comm’n v. Davenport, 29 Va.App. 26, 30, 509 S.E.2d 522, 524 (1999). By including the word “consecutive,” the General Assembly could intend that the single period provided be temporally whole. In other words, the period could not begin, stop, and then begin again until the time reached twenty-four months. Such a result could cause lengthy protraction of a claim, defeating the purpose of the statute of limitations.8 The word “consecutive” remedies these possible ills; it does not reveal a guarantee of time, especially given the other statutory language.

In summary, the language of Code § 65.2-708(C) provides only one period of extension from the statute of limitations in Code § 65.2-708(A). The language authorizing “a period” rather than “periods” denotes a single period. Taken together, the words “not exceeding” and “consecutive” show the General Assembly desired an extension of the statute of limitations up to but no greater than twenty-four consecutive months.

Aside from this textual analysis, the majority ignores an important principle of statutory construction: “It is well settled that where the construction of a statute has been uniform *633for many years in the administrative practice, and has been acquiesced in by the General Assembly, such construction is entitled to great weight with the courts.” Dan River Mills, Inc. v. Unemployment Comp. Comm’n, 195 Va. 997, 1002, 81 S.E.2d 620, 623 (1954); see also Commonwealth v. Am. Radiator & Standard Sanitary Corp., 202 Va. 13, 19, 116 S.E.2d 44, 48 (1960) (“The elementary rule of statutory construction is that the construction accorded a statute by public officials charged with its administration and enforcement is entitled to be given weight by the court. The legislature is presumed to be cognizant of such construction.”); Chauncey F. Hutter, Inc. v. Va. Employment Comm’n, 50 Va.App. 590, 594, 652 S.E.2d 151, 153 (2007); cf. Purolator Courier Corp. v. Clemons Courier Corp., 236 Va. 394, 400, 374 S.E.2d 42, 45 (1988).

The commission wrote in its decision here:

We have held the term “consecutive” in § 65.2-708(C) means “following successively without interruption.” Frisk v. Marshall’s, VWC File No. 183-99-55 (June 6, 2007); Crites v. Slurry Pavers, Inc., VWC File No. 202-99-47 (February 15, 2005) (finding the statute tolled only for one consecutive period). We have additionally held that this section provides “an extended limitation period” and that the consecutive twenty-four month period begins on the date the claimant is provided light duty work. Phelps v. Safeway Stores, Inc., 77 OWC 138 (1998) (emphasis added), aff'd, Record No. 1246-98-4 (Ct.App.1999) (unpub.). Our holdings are consistent with the language of the statute referring to “a period” and not to multiple periods. See also Greene v. Gwaltney of Smithfield, Inc., 13 Va.App. 486, 492, 413 S.E.2d 650, 654 (1992).

In her dissent, Commissioner Diamond acknowledged that the commission had “previously analyzed the meaning and intent of Code § 65.2-708(C) in the manner outlined in the Majority Opinion.” Thus, it may be said the General Assembly acquiesced in an interpretation of the statute such as given by the commission. Yet the majority gives this interpretation no deference.

*634It may be true that some workers may receive only a small benefit from the tolling provisions of Code § 65.2-708(C), if the same is construed in accordance with this dissent. Yet this Court may not alter the language of the statute to accommodate individual and sometimes unfortunate circumstances. Britt Constr., Inc. v. Magazzine Clean, LLC, 271 Va. 58, 64, 623 S.E.2d 886, 889 (2006). As our Supreme Court has advised, “unless the legislature makes exceptions to cover circumstances not specifically stated in the statute, such exceptions do not exist.... The arbitrary and peremptory provisions of the statute are necessary to accomplish the purposes of the enactment.”9 Crewe v. Marler, 228 Va. 109, 113-14, 319 S.E.2d 748, 750 (1984). Even if applying a statute’s language “leads to a result considerably broader than one might think [the General Assembly] should have intended ... it is not our place to rewrite statutes to conform with our notions of efficacy or rationality.” Smith v. Richmond Mem’l Hosp., 243 Va. 445, 454, 416 S.E.2d 689, 694 (1992) (citation omitted). Likewise, “[t]he calculus of effects, the manner in which a particular law reverberates in a society, is a legislative and not a judicial responsibility.” Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 2292, 60 L.Ed.2d 870 (1979).

Here Gordon returned to work earning at or above his preinjury wages in October 2000. This started the twenty-four-month tolling provision of Code § 65.2-708(C). For the next twenty-four months, the Code considered any wages Gordon received at or above his pre-injury pay to be compensation. The twenty-four-month period expired in October 2002 and could not be renewed thereafter based on the January 2000 injury. However, since Gordon last received payment pursu*635ant to an award in February 2003, he had until February 2005 to file an application based on a change in condition. Yet Gordon did not file his application until September 2006.10 This fell outside the time provided by the statute of limitations, and the commission correctly held the application time-barred.

For the foregoing reasons, I would affirm the judgment of the commission.

. On a similar note, courts have frequently noted the necessity of eventually ending litigation. "Litigation is a serious and harassing matter, and the right to know when it is ended is a valuable right.” Avery v. County Sch. Bd. of Brunswick County, 192 Va. 329, 333, 64 S.E.2d 767, 770 (1951). Likewise, while the workers’ compensation context presents its own challenges, it eventually demands finality.

. Statutes of limitation have their roots in sound public policy in that they seek to preserve evidence and prevent presentation of stale claims. Burns v. Bd. of Supervisors of Stafford County, 227 Va. 354, 359, 315 S.E.2d 856, 859 (1984).

. Large state programs such as workers’ compensation require broad rules to function. Such rules will inevitably not produce ideal results in all situations. Yet as the United States Supreme Court has recognized in the social security context, ”[g]eneral rules are essential if a fund of this magnitude is to be administered with a modicum of efficiency, even though such rules inevitably produce seemingly arbitrary consequences in some individual cases.” Califano v. Jobst, 434 U.S. 47, 53, 98 S.Ct. 95, 99, 54 L.Ed.2d 228 (1977).

. As noted in the majority’s factual background, Gordon also earned greater than his pre-injury wage from April to June 2002. Even using these dates, the statute of limitations still bars Gordon’s claim since he would have needed to file by April 2006.