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NGUYEN v. FAIRFAX COUNTY BOARD OF SUPERVISORS


NGUYEN v. FAIRFAX COUNTY
BOARD OF SUPERVISORS


DECEMBER 2, 1997
Record No. 3164-96-4

HANH NGUYEN

v.

FAIRFAX COUNTY BOARD OF
SUPERVISORS

OPINION BY CHIEF JUDGE JOHANNA L. FITZPATRICK
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

Present: Chief Judge Fitzpatrick,[1] Judges Baker and Annunziata
Argued at Alexandria, Virginia

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 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.[2] 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
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 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.[3]

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 work.[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.[5] 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
attempted to fire her.[6]
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.

 

 

 

FOOTNOTES:

[1] On November 19, 1997, Judge
Fitzpatrick succeeded Judge Moon as chief judge.

[2] 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.

[3] 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.

[4] 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 limiting performance of
Nordan’s day-to-day work. Neither did the employer attempt to
furnish selective work.").

[5] 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."

[6]
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).

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