COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, * Judges Baker and Annunziata
Argued at Alexandria, Virginia
HANH NGUYEN
OPINION BY
v. Record No. 3164-96-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
DECEMBER 2, 1997
FAIRFAX COUNTY BOARD OF
SUPERVISORS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Kathleen G. Walsh (Ashcraft & Gerel, on
brief), for appellant.
Peter D. Andreoli, Jr., Senior Assistant
County Attorney (David P. Bobzien, County
Attorney, on brief), for appellee.
Hanh Nguyen (claimant) appeals a decision of the Workers'
Compensation Commission denying her change-in-condition
application as time barred. Claimant contends she is entitled to
the tolling provisions of Code § 65.2-708(C) because she returned
to selective employment after her injury. We disagree and affirm
the commission.
The facts are not in dispute. On August 7, 1990, claimant
injured her back at work. Employer accepted the claim as
compensable and paid claimant temporary partial disability
benefits for intermittent work days missed. Claimant last
received benefits pursuant to an award on September 2, 1992.
Before her compensable August 1990 injury, claimant worked
for employer as an Account Clerk II. Her pre-injury job required
*
On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.
that she lift boxes of computer printouts weighing forty-five to
fifty pounds. In May 1992, employer relocated its offices and
automated, allowing material that was previously required to be
printed to be accessed by computer. Employer did not automate
claimant's pre-injury job to accommodate her disability; rather,
the job was modified as part of a computer upgrade. As a result
of employer's automation, on September 3, 1992, when claimant
returned full time to her job as an Account Clerk II, the job
duties remained the same but the lifting requirements were
reduced to ten to thirteen pounds.
Claimant has remained under the same restrictions since the
time of her injury. Prior to her return to her pre-injury job,
Dr. James A. Johnsen limited claimant to lifting ten pounds or
less, with no repetitive bending. 1 Additionally, claimant cannot
sit for long periods of time and uses an orthopedic chair.
On November 28, 1994, more than twenty-four months after her
last awarded compensation, claimant filed a change-in-condition
application seeking temporary partial disability benefits for
time missed. The parties stipulated that from September 1, 1992
through August 17, 1995 claimant missed a number of days as a
1
The lifting requirements (ten to thirteen pounds) of the
Account Clerk II job to which claimant returned in 1992 slightly
exceeded her lifting restriction of ten pounds or less. However,
claimant does not argue that the job, as it existed in 1992, fell
outside of her restrictions nor did any evidence show that she
was unable to perform the duties of that job. In addition,
claimant's supervisor testified that, since 1992, the job has not
actually required any lifting over ten pounds or any repetitive
bending.
2
result of the compensable accident. It is undisputed that from
the date of her return to work in 1992 claimant has earned wages
greater than or equal to her pre-injury wage.
Code § 65.2-708, which governs the filing of
change-in-condition applications, requires that the application
be filed within twenty-four months from the last date for which
compensation was paid pursuant to an award. Code § 65.2-708(C)
provides the following tolling provision:
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 (ii) who is provided
work within his capacity at a wage equal to
or greater than his pre-injury wage, shall be
considered compensation.
This tolling provision was designed
to prevent employers from lulling partially
disabled workers into a false sense of
security during this two year period 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.
Scott v. Scott, 16 Va. App. 815, 819, 433 S.E.2d 259, 262 (1993).
Thus, a partially disabled employee who meets the conditions
outlined in parts (i) and (ii) "is afforded an additional
twenty-four months before the statute of limitations . . . begins
to run." Greene v. Gwaltney of Smithfield, Inc., 13 Va. App.
486, 492, 413 S.E.2d 650, 654 (1992). See also Mitchell v.
Phoenix Dev. Corp., Claim No. 1470473 (Workers' Comp. Comm'n June
28, 1994) (tolling provision did not apply where employer had no
3
knowledge of claimant's restrictions).
Claimant did not file her change-in-condition application
within twenty-four months from September 2, 1992, the last date
for which compensation was paid pursuant to an award. Therefore,
unless the tolling provision applied to extend the limitations
period, claimant's application was untimely.
Code § 65.2-708(C) applies to a light duty or selective
employment situation. If an employee, despite restrictions, can
perform his or her pre-injury work for pre-injury wages, those
wages are not considered compensation under the tolling
provision. 2
In the instant case, claimant's pre-injury and post-injury
jobs were virtually indistinguishable. She returned to the same
office as an Account Clerk II, doing the same work for the same
supervisor at the same or greater pay. Though her method of work
was easier, her duties were identical, and no evidence
established that claimant sought or was provided light duty
3
work.
2
See Burton v. Fairfax County School Board, 71 O.W.C. 75
(1992) (affirmed by this Court in an unpublished opinion, Mar.
29, 1993). Ms. Burton's pre-injury job was easier when she
returned to work. The commission found that her post-injury work
"was essentially the same," that she was not engaged in selective
employment, and that Code § 65.2-708(A) barred her claim.
3
It is undisputed in this case that employer did not
automate to accommodate claimant. However, such accommodation
would not necessarily have resulted in a finding of selective
employment or light duty. See Nordan v. Webster Elevator Co.,
Claim No. 1484409 (Workers' Comp. Comm'n Jan. 13, 1995) (tolling
provision did not apply when employer accommodated claimant so
"[t]he lifting restriction . . . played no substantial part in
4
Upon her return to work, claimant continued to have a lifting
restriction, but this restriction did not limit performance of
her day-to-day work. 4 Claimant's post-injury job was not light
duty or selective employment for the purpose of the tolling
provision of Code § 65.2-708.
Additionally, the policy behind Code § 65.2-708(C) does not
support its application to toll the statute of limitations in
this case. Claimant presented no evidence that she was lulled
into a false sense of security by employer, and employer has not
5
attempted to fire her. The deputy commissioner specifically
found that "[n]othing of the sort was involved in this case."
We hold that claimant returned to her pre-injury work and
therefore does not qualify for tolling under Code § 65.2-708(C).
Accordingly, we affirm the commission's decision finding
claimant's application untimely.
Affirmed.
limiting performance of Nordan's day-to-day work. Neither did
the employer attempt to furnish selective work.").
4
The deputy commissioner found that claimant's "restrictions
do not interfere with her ability to do her pre-injury work as an
Account Clerk II."
5
Although claimant attempted at oral argument to show that
she was lulled into a false sense of security, she failed to make
this claim before the commission. We decline to consider the
issue for the first time on appeal. See Jacques v. Commonwealth,
12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991) (citing Rule
5A:18).
5