COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Huff and Athey
PUBLISHED
Argued at Virginia Beach, Virginia
JOSHUA STANTON
OPINION BY
v. Record No. 0344-23-1 JUDGE CLIFFORD L. ATHEY, JR.
JANUARY 30, 2024
VIRGINIA BEACH - FIRE OPERATIONS
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Casey M. Ariail (River Run Law Group, PLLC, on brief), for
appellant.
Christopher J. Turpin (Office of the City Attorney, on brief), for
appellee.
Joshua Stanton (“Stanton”) filed an application for benefits with the Virginia Workers’
Compensation Commission (the “Commission”) alleging a change in his condition, under Code
§ 65.2-708. The Commission subsequently denied the application. On appeal, Stanton contends
that the Commission erred in its interpretation of Code § 65.2-708. Specifically, he asserts that the
tolling provisions under Code § 65.2-708(C) apply to the circumstances here and therefore extend
the applicable statute of limitations under Code § 65.2-708(A), permitting an award of benefits. For
the following reasons, we affirm the Commission’s denial.
I. BACKGROUND
Stanton sustained a compensable injury to his hip on August 30, 2014, when he fractured his
hip in the course of his employment as a firefighter paramedic for the City of Virginia Beach. On
Judge Humphreys participated in the hearing and decision of this case prior to the
effective date of his retirement on December 31, 2023.
that same date, he underwent surgery and had three screws placed in his hip.1 He received a
compensatory award by order dated September 18, 2015, and “was awarded temporary total
disability benefits from August 30, 2014[,] through October 14, 2014.” He also received partial
disability benefits from June 23, 2015, through August 25, 2015. In September of 2015, Stanton
returned to full duty work, and remained on full duty work, until his hip was replaced in August of
2021. His condition had remained stable until March of 2021 when pain in the hip led him to seek
further treatment. Testing revealed that he suffered from avascular necrosis of the hip, leading to a
total hip replacement operation performed on August 31, 2021. Following the hip replacement,
Stanton was placed on light duty from October 2021 through November 2021, and returned to full
duty thereafter, earning his pre-injury wage.
Stanton filed applications with the Commission in November 2021 and February 2022
alleging a change in his condition. After a hearing before the deputy commissioner, an opinion was
entered.2 Then, upon Stanton’s motion to reconsider, the deputy commissioner vacated the opinion,
and later issued a new opinion3 denying benefits because “Stanton’s change of condition . . .
1
In a prehearing statement signed by Stanton and his employer, Stanton acknowledged
that “[t]he screws placed in [Stanton’s] hip in 2014 were stabilizing hardware, not prostheses.
The limitations period was thus not extended by repair replacement of prosthesis in 2021.”
2
Following this hearing, the deputy commissioner “found that the screws Dr. Kline
implanted meet the definition of an ‘orthosis.’” In reaching this finding, the deputy commissioner
noted that “Merriam-Webster defines an orthosis as ‘an external medical device (such as a brace or
splint) for supporting, immobilizing, or treating muscles, joints, or skeletal parts which are weak,
ineffective, deformed, or injured.’” The deputy commissioner further found that the screws did not
qualify as a prosthesis.
3
The deputy commissioner made the same finding concerning the orthosis, and further
found that the surgery that Stanton underwent was not a “surgical procedure compensable under
§ 65.2-603 to repair or replace a prosthesis or orthosis.” See Code § 65.2-708. In reaching this
conclusion, the deputy commissioner analogized Stanton’s claim to the Benson v. Abbitt
Management Inc., VWC File No. 192-28-58 (Va. Wrk. Comp. Comm. Aug. 2, 2006), case,
noting that similarly “Stanton did not undergo a repair or replacement of the screws,” but rather
had “the previously implanted hardware” removed. See Benson, VWC File No. 192-28-58, slip
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occurred beyond the statute of limitations set forth in Code § 65.2-708 and that his claims for
compensation for temporary total disability and permanent impairment [were] untimely.” The
deputy commissioner then made the same award.4
Stanton appealed the ruling of the deputy commissioner to the Commission which affirmed
the deputy commissioner’s decision but upon separate grounds.5 In its opinion, the Commission
noted that Stanton “[did] not dispute that he last received [compensation] payments . . . on or around
August 22, 2015.” As a result, the Commission held that the tolling provision in subsection (C) was
no longer applicable because Stanton “worked for the employer for over six years since the date he
last received compensation pursuant to an award.” Stanton appealed.
II. ANALYSIS
A. Standard of Review
“An award of the Workers’ Compensation Commission is ‘conclusive and binding as to
all questions of fact.’” Med. Mgmt. Int’l. v. Jeffry, 75 Va. App. 679, 684 (2022) (quoting Code
§ 65.2-706). “But we review the Commission’s determinations of law de novo.” Id. “The
op. at *8-9 (finding that a “removal” was not a repair or replacement under Code § 65.2-603).
Similarly, Stanton had screws removed that had been implanted in 2014 and instead of repairing
or replacing the screws, Stanton had surgery to replace his hip.
4
The award only differed in the amount of attorney fees awarded to Stanton’s attorney.
5
The deputy commissioner relied on Frisk v. Marshall’s, VWC File No. 183-99-55
(Va. Wrk. Comp. Comm. June 6, 2007), in reaching its conclusion “that Stanton’s change of
condition . . . occurred beyond the statute of limitations set forth in Code § 65.2-708 and that his
claims for compensation for temporary total disability and permanent impairment are untimely.”
See Frisk, VWC File No. 183-99-55, slip op. at *3 (“It cannot be said under these circumstances
that the claimant was lulled into a false sense of security causing her filing to be delayed.”). The
Commission instead contrasted Stanton’s circumstances to the facts in Ford Motor Co. v.
Gordon, 281 Va. 543 (2011), in that Gordon “intermittently worked light duty for the employer
in between periods of temporary total disability” therefore allowing for that light-duty
employment to be “considered compensation for purposes of tolling” under Code § 65.2-708(A).
Meanwhile, Stanton had returned to full-time duty for longer than the statute of limitations of 24
months under Code § 65.2-708(A).
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[C]ommission’s construction of the [Workers’ Compensation] Act is entitled to great weight on
appeal.” Id. at 684 (alterations in original) (quoting Wiggins v. Fairfax Park Ltd. P’ship, 22
Va. App. 432, 441 (1996)). “Yet we are ‘not bound by the [C]ommission’s legal analysis in this
or prior cases.’” Id. at 685 (alteration in original) (quoting Peacock v. Browning Ferris, Inc., 38
Va. App. 241, 248 (2002)). “An issue of statutory interpretation is a pure question of law which
we review de novo.” Ford Motor Co. v. Gordon, 281 Va. 543, 549 (2011).
B. The Commission did not err in rejecting Stanton’s change in condition application and
declining to grant him benefits.
Stanton argues on appeal that the Commission erred in failing to review his change in
condition application and grant him benefits because the compensation paid to him fell within “the
tolling provisions of Code § 65.2-708(A).” Stanton argues that because Code § 65.2-708(C)
“expand[s] the definition of compensation, [and] applies a new starting point” for the statute of
limitations in Code § 65.2-708(A), his light-duty wages paid from October 21, 2021, through
November 29, 2021, fell within the “expand[ed] definition of compensation” of Code § 65.2-708(C)
and restarted the two-year statute of limitations under Code § 65.2-708(A). We disagree.
“The plain, obvious, and rational meaning of a statute is to be preferred over any curious,
narrow, or strained construction.” Gordon, 281 Va. at 549 (quoting Meeks v. Commonwealth, 274
Va. 798, 802 (2007)). “[W]e have a duty, whenever possible, ‘to interpret the several parts of a
statute as a consistent and harmonious whole so as to effectuate the legislative goal.’” Oraee v.
Breeding, 270 Va. 488, 498 (2005) (quoting Virginia Elec. & Power Co. v. Bd. of Cnty. Supervisors
of Prince William Cnty., 226 Va. 382, 387-88 (1983)).
In full, Code § 65.2-708(A) states:
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 of compensation 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,
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and shall immediately send to the parties a copy of the award. No
application filed by a party alleging a change in condition shall be
docketed for hearing by the Commission unless any medical reports
upon which the party is relying are submitted to the Commission.
No such review shall affect such award as regards any moneys paid
except pursuant to §§ 65.2-712, 65.2-1105, and 65.2-1205. No such
review shall be made after 24 months from the last day for which
compensation was paid, pursuant to an award under this title,
except: (i) 36 months from the last day for which compensation was
paid shall be allowed for the filing of claims payable under
§ 65.2-503 and certain claims under subsection B of § 65.2-406 or
(ii) 24 months from the day that the claimant undergoes any surgical
procedure compensable under § 65.2-603 to repair or replace a
prosthesis or orthosis.6
(Emphasis added). Code § 65.2-708(C) states:
All wages paid, for a period not exceeding 24 consecutive months, to
an employee (i) who is physically unable to return to his pre-injury
work due to a compensable injury and (ii) who is provided work
within his capacity at a wage equal to or greater than his pre-injury
wage shall be considered compensation paid pursuant to an award for
compensation but shall not result in a reduction of the maximum
number of weeks of compensation benefits as described in
§§ 65.2-500 and 65.2-518.
In Gordon, the Supreme Court noted that when reviewing awards based on a “change in
condition,” pursuant to Code § 65.2-708(A), the Commission must first look to see if the change in
condition occurred within the 24-month timeline following “the last day for which compensation
was paid, pursuant to an award under this title.” 281 Va. at 550. The Commission will then
consider the tolling provision within Code § 65.2-708(C). The conditions of the tolling provision
are specifically that an employee be (1) “physically unable to return to his pre-injury work due to a
compensable injury,” (2) “provided work within his capacity,” and (3) provided such work “at a
wage equal to or greater than his pre-injury wage.” Gordon, 281 Va. at 550. “[B]y expanding the
6
Subsection (A)(ii) further excepts the statute of limitations for “24 months from the day
that the claimant undergoes any surgical procedure compensable under § 65.2-603 to repair or
replace a prosthesis or orthosis.” Stanton made no argument to the deputy commissioner, the full
Commission, or on appeal that this incident fell under exception (A)(ii).
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definition of ‘compensation’ under subsection (A) to include wages which meet certain conditions,”
the tolling provisions of subsection (C) effectively can extend subsection (A)’s statute of limitations.
Id.
Stanton’s contention that the Commission erred by failing to review his change in condition
is best understood in the context of Gordon. In Gordon, the Supreme Court interpreted the
relationship between Code § 65.2-708(A) and (C). Stanton contends that subsection (C) “expand[s]
the definition of compensation” and thus allows for a “new starting point” for the two-year
limitations period articulated in Code § 65.2-708(A). In effect, he argues that under subsection (C),
a claimant receives “compensation . . . pursuant to an award” whenever the three requirements
under subsection (C) are met. Specifically, Stanton asserts here that (1) “[he] [was] physically
unable to perform pre-injury work as a result of the compensable injury”; (2) “[t]he employer . . .
[provided] . . . [him] work within his restricted capacity”; and (3) he “earn[ed] equal or greater than
his pre-injury wage while working in that capacity.” Thus, Stanton contends that the two-year
statute of limitations restarted for him on November 29, 2021, when he completed his period of
light-duty work as a result of the necessity for hip replacement surgery because at that time, he met
all three requirements under subsection (C).
In Gordon, the Supreme Court held that pursuant to Code § 65.2-708(A), the “statute of
limitations runs anew under each successive award of compensation for a particular compensable
injury and is triggered on the last day for which compensation was paid” and that subsection (C)
“provide[es] for wages meeting certain prescribed conditions to be treated as compensation
under Code § 65.2-708(A).” 281 Va. at 551-52. Further, the Supreme Court also held that the
“two-year statute of limitations under subsection A is tolled while the claimant receives
compensation, ‘pursuant to an award.’” Id. at 551 (quoting Code § 65.2-708(A)). Thus, “the
determining factor” in considering whether “a change-in-condition application” is “time-barred
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under Code § 65.2-708(A) is the date ‘for which compensation was [last] paid, pursuant to an
award.” See id. (alteration in original).
Here, the Commission correctly distinguished the facts in Gordon from the facts in this
case, because, unlike Gordon, who received light-duty wages before the statute of limitations
expired, thereby tolling the statute of limitations in Code § 65.2-708(A), Stanton had worked
over six years on full duty after he stopped receiving compensation pursuant to his 2014 award.
The Commission further noted that Code § 65.2-708(C)’s tolling provision only applied to
Gordon’s subsequent light-duty wages following his initial injury because the light-duty work
occurred within subsection (A)’s two-year statute of limitations.
Hence, in keeping with the analysis followed in Gordon, we are first required to look to the
date that “compensation was [last] paid,” which was in September of 2015, when Stanton returned
to full duty work, receiving his pre-injury wages. Thus, September of 2015 was the last time that
Stanton received compensation “pursuant to an award.” As a result, the two-year statute of
limitations period under Code § 65.2-708(A) began in September of 2015, and any tolling of
subsection (A) due to the fulfillment of the conditions described in subsection (C) would need to
have occurred in the following 24 months. Since Stanton was not placed on light duty again until
six years later in October of 2021 after undergoing hip replacement surgery, he may have fulfilled
the conditions as expressed in subsection (C), but he did so outside of the statute of limitations of
subsection (A). Therefore, we find no error in the Commission’s finding and affirm the
Commission’s decision.
III. CONCLUSION
For the above reasons, we affirm the finding of the Commission.
Affirmed.
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