Whitt & Del Bueno, Attorneys at Law

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Articles

Extended Play

By Mike Del Bueno

Michael P. Del Bueno

Statutes of limitations aim to preserve evidence, prevent presentation of stale claims, and provide an end to litigation. However, statutes of limitations can also be tolled, or extended, under certain situations. A recent case at the Court of Appeals of Virginia provided a significant legal opinion on the tolling of the statute of limitations on a Virginia workers’ compensation change in condition claim.

A party can ask the Virginia Workers’ Compensation Commission to review any award of benefits based upon a change in condition, but no such review shall be made after twenty-four months from the last day for which compensation was paid pursuant to an award for workers’ compensation benefits. What that means, essentially, is that a change in condition claim cannot be filed more than two years after the date an injured employee was last paid compensation benefits pursuant to an award. Section 65.2-708(A) of the Code of Virginia contains this statute of limitations.

However, that statute of limitations can be tolled. Specifically, all wages paid for a period not exceeding twenty-four consecutive months to an employee physically unable to return to pre-injury work due to a compensable injury and who is provided work within his physical capacity at a wage equal to or greater than his pre-injury wage shall be considered compensation. What that means, essentially, is that the statute of limitations can be extended if an injured employee performs light duty work, and receives wages for that work, for not more than two years. This tolling provision is found in section 65.2-708© of the Code of Virginia.

In Gordon v. Ford Motor Company, the Court of Appeals of Virginia addressed the issue of whether the above tolling provision can extend the two-year statute of limitations on a change in condition claim more than once. Mr. Gordon suffered a compensable injury on January 9, 2000 and thereafter received various awards of compensation benefits. Those compensation benefits were intermittent and were both for temporary total and temporary partial disability. For example, Mr. Gordon received temporary total disability benefits from January 3, 2001 to February 19, 2001, and his last award was for temporary partial disability benefits for which he received the last payment of compensation on February 23, 2003. Mr. Gordon then worked light duty due to his compensable injury, but earned higher than his pre-injury wages, starting on April 20, 2003 until he was laid off on September 11, 2006.

Mr. Gordon filed change in condition claims for compensation benefits on September 25, 2006 and November 6, 2006 after his layoff. Ford Motor Company defended the claims on the grounds that Mr. Gordon last received compensation benefits on February 23, 2003, and as he did not file his change in condition claims until after February 23, 2005, they were barred by the statute of limitations. Mr. Gordon argued that the change in condition claims were filed timely because all wages that he earned up until April 20, 2005 (twenty-four months from the beginning of the April 20, 2003 to September 11, 2006 period during which Mr. Gordon worked in a light duty capacity earning at or above his pre-injury wages) were deemed to be compensation, thus tolling the statute of limitations until April 20, 2005. Ford Motor Company responded that the tolling provision on a change in condition claim was triggered when Mr. Gordon returned to light duty work in October of 2000, and when he was awarded temporary total disability benefits in January of 2001, that was the one-time tolling provision allowable on a change in condition claim.

The Commission had agreed with Ford Motor Company’s arguments and had held that there was only a one-time applicable extension to the statute of limitations as found in section 65.2-708© of the Code of Virginia. However, the majority of the Court of Appeals of Virginia reversed the Commission, and concluded that the change in condition/statute of limitations scheme as laid out in sections 65.2-708(A) and © of the Code of Virginia functions on an award by individual award basis. The Court of Appeals agreed with Mr. Gordon’s contention that the first twenty-four months of the wages that he earned while working light duty from April 20, 2003 to September 11, 2006 were deemed compensation for purposes of tolling the statute of limitations on a change in condition claim – despite the fact that he had received prior awards of compensation. Thus, the statute of limitations was tolled through April 20, 2005 and Mr. Gordon’s change in condition claims filed in September and November of 2006 were not time-barred.

There was a dissent to the majority opinion. The dissenting opinion held that the Commission’s opinion should have been affirmed because the language of section 65.2-708© is clear and unambiguous – it authorizes tolling of “a period not exceeding twenty-four consecutive months.” According to the dissent, that means only one specific interval of time up to, but not more than, twenty-four successive, uninterrupted months for a change in condition claim.

The Gordon case, as you can tell, is an important decision that likely has a significant impact on the statute of limitations on a change in condition claim for workers’ compensation benefits in Virginia. It is unknown whether the Supreme Court of Virginia will take Gordon if it is appealed by Ford Motor Company. For at least the time being, Gordon represents the law in Virginia on a change in condition claim and that the statute of limitations for the same can be tolled more than one time.