711 S.E.2d 241
Va. Ct. App.2011Background
- Rahim sustained a compensable 2007 injury to back, knee, and forearm while employed by Prince William County; she filed a 2007 claim, amended in 2008 for wage loss and medical costs; a June 18, 2009 stipulation awarded a medical-only award and light-duty wages at pre-injury rate; Rahim sought a change in condition for temporary total disability in Oct 2009; the deputy commissioner in Feb 2010 found timeliness under 65.2-708 based on Fountain and held light-duty wages tolled the limitations; the full commission affirmed in July 2010, and this Court granted rehearing en banc
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 65.2-708(C) can toll the statute when no prior compensation award existed | Rahim: wages paid under light duty qualify as compensation under 65.2-708(C) and toll the limit | PWCS: no prior compensation award existed to toll; 65.2-708(A) cannot be invoked | Affirmed: 65.2-708(C) tolls the limitations and the claim was timely; remanded to fix tolling start date |
| Whether 65.2-708(A) authorizes review of an award when no compensation award was previously entered | Rahim: the commission may review an award upon change in condition even without prior compensation award | PWCS: review power applies only where there is a prior compensation award | Affirmed: statute allows review; remanded for tolling-date determination |
| Whether the change-in-condition claim was timely filed under the two-year statute of limitations | Rahim: timely under 65.2-708(A) due to tolling under 65.2-708(C) | PWCS: not timely because no prior award and delays exceeded two years from accident | Affirmed: claim timely under either proposed tolling date; remanded for exact start of tolling |
| Whether Mayberry and Humphreys are controlling on this record | Rahim: the Mayberry/Humphreys line supports tolling through wages | PWCS: Mayberry/Humphreys are distinguishable and not controlling here | Affirmed: Mayberry not controlling; statutory interpretation governs; remand for tolling date |
Key Cases Cited
- Ford Motor Co. v. Gordon, 281 Va. 543 (2011) (interprets 65.2-708(C) as a tolling mechanism tied to an award; not standalone; consistent with review language)
- Mayberry v. Alcoa Bldg. Prods., 18 Va.App. 18 (1994) (addressed when there was no prior compensation award; not controlling where wages were involved with tolling)
- Augusta Cnty. Sch. Bd. v. Humphreys, 53 Va.App. 355 (2009) (held withdrawal of wage loss after medical benefits alone could still trigger compensation timing in dicta; distinguished here)
- Diaz v. Wilderness Resort Ass'n, 56 Va.App. 104 (2010) (statutory interpretation guidance for 65.2-708(A) and related provisions)
- Scott v. Scott, 16 Va.App. 815 (1993) (explains legislative intent behind 65.2-708(C) and remedial nature of Workers' Compensation Act)