Comp disability claim timely filed

The Virginia Workers’ Compensation Commission incorrectly concluded that a claim for temporary total disability was untimely where the claim was filed within two years of the last date the claimant’s employer voluntarily paid full wages for light-duty work.

Under the relevant statute, such payments are “‘compensation paid pursuant to an award of compensation[.]’”

Overview

“Lucinda Walker injured her ankle while working for the Virginia Department of Corrections. The Department and Walker agreed that the Department would pay for medical benefits connected to her injury, and the Workers’ Compensation Commission entered an award agreement formalizing the same.

“Two years and twelve days later, Walker filed a claim for temporary total disability based on a change in condition.

“Such a claim is timely under Code § 65.2-708(A) if filed within 24 months from the last date compensation was paid pursuant to an award of compensation.

“The Commission found Walker’s claim was barred by the statute of limitations because the Commission’s award was not an ‘order of compensation’ but ‘medical only.’

“Because we conclude Code § 65.2-708(C) defines the voluntary payment of equal wages for light-duty work to be ‘compensation paid pursuant to an award of compensation,’ and Walker’s claim was filed within two years of the last day she received qualifying wages, we disagree and find her claim was timely.”

Background

“The Department agreed to pay for medical benefits related to Walker’s injury, so the parties executed an award agreement. In August 2019, the Commission entered a ‘Medical Only Award Order’ adopting that agreement.”

Walker was restricted to light-duty work for three time periods, during which the department paid her full wages for the light-duty work.

“On July 6, 2021, Walker filed a claim requesting a retroactive, continuing award of temporary total disability wage loss benefits starting from the first day she was restricted to light-duty work [June 24, 2019]. …

“The Department argued that Walker’s claim, filed two years and twelve days after her injury, was barred by the two-year statute of limitations set forth under Code § 65.2-601.

“Walker contended, however, that Code § 65.2-708(C) tolled the statute of limitations and that she could file a claim based on a change in condition up to two years after the Department last paid her full wages for light-duty work, or until July 22, 2023.”

The deputy commissioner ruled that the statute of limitations barred the claim. The full commission affirmed. Walker appealed.

Analysis

“The only question for review is whether Walker’s claim was barred by the statute of limitations set out in the Workers’ Compensation Act.”

Under amendments to Code § 65.2-708, “the Commission retains the same authority to consider a request based on a change in condition if it was submitted within two years of the last day an employer pays full wages for light-duty work.

“The earlier version of the statute gave the Commission broad authority to review a change in condition within two years of ‘any order,’ tolling that period if the employer paid equal wages for light-duty work during the two years. …

“[W]e [have] found the statute implicitly identified such qualifying wages paid as ‘pursuant to an award of compensation’ without any express language stating the same. Now, subsection C has been amended to expressly recognize what we long held by implication.

“When an employer pays equal wages for light-duty employment it is a statutory award of compensation under Subsection C. That statutory award is then reviewable under subsection A.

“That the General Assembly also narrowed the authority of the Commission in subsection A from reviewing ‘any award’ to ‘any award of compensation’ does not change the analysis in the face of subsection C’s explicit definition of equal wages for light-duty work as an ‘award of compensation.’”

Application

“Applying the statute here, the Commission may review the wages the Department of Corrections paid to Walker following her ankle injury, and ‘may make an award ending, diminishing or increasing [this] compensation previously awarded’ because those wages are a statutory award of compensation. Code § 65.2-708(A).

“Walker petitioned on July 6, 2021, alleging a change in condition two years and twelve days after she injured her ankle. After she first received a ‘medical only’ award from the Commission, Walker was paid full wages while she was restricted to light-duty work, most recently from May 26, 2021, to July 22, 2021.

“These wages are ‘compensation paid pursuant to an award of compensation.’ Code § 65.2-708(C).

“The Commission may review this ‘award of compensation’ for up to 24 months from the last date compensation was paid. Code § 65.2-708(A).

“Because Walker petitioned within two years of the last day for which she was paid full wages for light-duty work, her petition is not barred by the statute of limitations.”

Reversed and remanded.

Walker v. Dep’t of Corrections. Record No. 1265-22-2, Jan. 16, 2023. CAV (published opinion) (Lorish) From the Virginia Workers’ Compensation Commission. Brody H. Reid (ReidGoodwin, PLC, on brief), for appellant. Emily O. Sealy, Assistant Attorney General (Jason S. Miyares, Attorney General; Steven G. Popps, Deputy Attorney General; Jacqueline C. Hedblom, Section Chief; Scott John Fitzgerald, Unit Manager, on brief), for appellee. VLW 024-7-010, 10 pp.