749 S.E.2d 550
Va. Ct. App.2013Background
- Employee Marlin Roske injured his right shoulder in May 2005, had surgery in Jan 2006, returned to light-duty work (equal wages) May 24, 2006, and later had a second shoulder surgery on Jan 5, 2011.
- The commission previously awarded temporary total disability through May 24, 2006; under Code § 65.2-708(C) the 24-month limitation for a change-in-condition review began then (deadline May 24, 2008).
- Employer provided light-duty work at equal wages from May 2006 until Jan 4, 2011, then made voluntary disability payments to Roske from Jan 5, 2011 to May 17, 2011 (19 weeks).
- Roske filed change-in-condition claims alleging entitlement to temporary total disability from Jan 5, 2011 onward; employer defended that the change-in-condition claim was time-barred under Code § 65.2-708.
- The deputy commissioner found the claim untimely; the full commission (split decision) upheld that (concluding no waiver of the statute and no de facto award). Roske appealed; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether employer waived the § 65.2-708 filing deadline by voluntarily paying benefits after the deadline | Roske: voluntary payments after the deadline show employer intended to waive the statutory time limit | Employer: no clear, precise, unequivocal evidence of intent to relinquish the right to assert the time limitation | Held: No waiver — burden to prove waiver not met; no evidence employer intended to surrender right to rely on § 65.2-708 |
| Whether voluntary payments created a de facto award that tolled/extended the § 65.2-708 filing period | Roske: voluntary payments constitute a de facto (estoppel-based) award, so the 24-month review period runs from last voluntary payment (May 17, 2011) | Employer: payments alone do not create de facto award absent employer misrepresentation and claimant prejudice/reliance | Held: No de facto award — payments alone insufficient; no evidence Roske was misled or prejudiced, so filing deadline was not extended |
Key Cases Cited
- Binswanger Glass Co. v. Wallace, 214 Va. 70 (Supreme Court of Virginia) (voluntary supplemental agreement and payments can constitute waiver of filing deadline)
- National Linen Service v. McGuinn, 5 Va. App. 265 (Va. Ct. App.) (failure to file memorandum of agreement plus prolonged payment and lack of contest can create de facto award by estoppel)
- Utica Mutual v. National Indemnity, 210 Va. 769 (Supreme Court of Virginia) (party claiming waiver must prove it by clear, precise, unequivocal evidence)
- Lysable Transport, Inc. v. Patton, 57 Va. App. 408 (Va. Ct. App.) (limitations on extending de facto-award doctrine; voluntary payments alone usually insufficient)