Whitt & Del Bueno, Attorneys at Law

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The Impact of Recent Supreme Court Decision on the Statute of Limitations

By Ralph Whitt

On September 14, 2012, the Supreme Court of Virginia affirmed a decision by the Court of Appeals in Prince William County School Board v. Rahim that held that when an employer provides light duty employment to an injured worker at or above the worker’s average weekly wage, those wages are considered “compensation” paid pursuant to an award under Code § 654.2-708( C ), even though, of course, in actuality, there really is no true award of compensation because there is no wage loss. This “legal fiction” of calling wages “compensation” goes on for up to 24 months under section 708( C ). This has the effect of extending the running of the statute of limitations for the filing of claims for additional compensation (i.e., change in condition claims) because the limitation period in this situation begins to run from the date compensation was last paid and not from the date of accident. None of this is new, and this part is consistent with existing case law.

Here is what is new and what deviates from decades of case law and the actual language of the statute: the Supreme Court agreed with the Court of Appeals’ finding that the extension to the statute of limitations found in section 708( C ) applies also to initial filings for compensation, not just changes in condition. This means that if an injured worker is provided light duty at or above his pre-injury wage by the employer right after the accident, then his wages up to 24 months (two years) can be considered the payment of “compensation.” An injured worker then has another two years from the last payment of compensation (or wages) to file an initial claim for compensation under section 708(A) or up to four years or more from the date of accident, not the two years from the date of accident as provided under section 601 for the filing of initial claims. In fact, a scenario could be devised whereby an injured worker could have six years or more from the date of accident to file an initial claim for compensation depending on when and how long the employer provides the light duty at or above pre-injury wage. This greatly expands the limitation period for filing initial claims for compensation and must be a consideration when providing any light duty work at or above pre-injury wage.

The Court of Appeals did add one caveat: before the extension to the statute of limitations in section 708( C ) can be applied, the claimant still must file for and be awarded at least a lifetime award of medical benefits within the statutory two years from the date of accident under section 601. Nevertheless, this decision has changed the law and greatly complicates the determination as to whether the statute of limitations has run or not in any case where light duty at or above pre-injury wage is involved. Stay tuned; this is just the beginning of the impact.