John T. GORDON, Jr. v. FORD MOTOR COMPANY.
Record No. 0364-08-1.
Court of Appeals of Virginia, Richmond.
Dec. 15, 2009.
685 S.E.2d 880 | 363
ELIZABETH A. McCLANAHAN, Judge.
an occupied vehicle, for assault requires proof of a fact that unlawful shooting does not. Thus, appellant‘s conviction for unlawful shooting was not barred by double jeopardy.
Conclusion
For these reasons, we find that the offense of unlawful shooting at an occupied vehicle, in violation of
Affirmed.
Barry Dorans (Samuel W. Meekins; Wolcott, Rivers, Gates, P.C., on brief), Virginia Beach, for appellee.
Present FELTON, C.J., and ELDER, FRANK, HUMPHREYS, McCLANAHAN, HALEY, PETTY, BEALES, POWELL and ALSTON, JJ.
UPON A REHEARING EN BANC
ELIZABETH A. McCLANAHAN, Judge.
John T. Gordon, Jr. appeals the Workers’ Compensation Commission‘s rejection of his change-in-condition application for benefits as time barred under the
I. BACKGROUND
The relevant facts are not in dispute. Gordon suffered a compensable injury by accident on January 9, 2000 while working at
Following his injury, Gordon continued to work for Ford intermittently (between periods of temporary total disability), but only in a light-duty position due to restrictions arising from the injury. From October 23, 2000 through January 3, 2001 and from April 1, 2002 through June 30, 2002, Gordon worked in such a position and earned wages at or above his pre-injury wage. Gordon also worked in a light-duty capacity for Ford from April 20, 2003 through September 11, 2006, again earning wages equal to or higher than his pre-injury average weekly wage.
On September 11, 2006, Gordon was temporarily laid off from his position at Ford because the plant was shut down for production reasons. On September 25, 2006 and again on November 6, 2006 Gordon applied for disability benefits based on lost wages caused by this “change in condition.”
Ford defended against Gordon‘s 2006 application for benefits, in part, by arguing that it was time-barred. Ford asserted that the claim was not filed within two years of Gordon‘s last payment of compensation (February 23, 2003), that this last payment triggered the running of the two-year statute of limitations under
Relying on
Ford responded that the twenty-four-month tolling provision in
Ford concluded, “thereafter, all claims for further compensation would have to be filed within two years from the date for which compensation was last paid per [Code] § 65.2-708(A) and that [Code § 65.2-708(C)] could not be used to extend the period during which compensation was said to be paid.” Ford maintained that since Gordon was last paid workers’ compensation benefits on February 23, 2003, he only had until February 23, 2005 to apply for benefits based on a change in condition.
The deputy commissioner rejected Ford‘s argument and awarded Gordon the benefits he requested. The deputy commissioner determined that “nothing in the statute indicates that the provisions of
Ford appealed the deputy commissioner‘s decision to the full commission. The commission held that Gordon‘s change-in-condition application was time-barred. The commission explained its holding as follows:
We have held that the term “consecutive” in
§ 65.2-708(C) means “following successively without interruption.” Frisk v. Marshall‘s, VWC File No. 183-99-55 (June 6, 2007); Crites v. Slurry Pavers, Inc., VWC File No. 202-99-47 (February 15, 2005) (finding the statute tolled only forone consecutive period). We have additionally held that this section provides “an extended limitation period” and the consecutive twenty-four month period begins on the date the claimant is provided light duty work. Phelps v. Safeway Stores, Inc., 77 OCE 138 (1998) (emphasis added), aff‘d, Record No. 1246-98-4 (Ct.App.1999) (unpub.). Our holdings are consistent with the language of the statute referring to “a period” and not to multiple periods. See also Greene v. Gwaltney of Smithfield, Inc., 13 Va.App. 486, 492, 413 S.E.2d 650, 654 (1992).3
Therefore, according to the commission, the
This appeal followed.
II. ANALYSIS
Under
Subsection C of
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.
The parties concede that the wages paid to Gordon following his compensable injury met the statutory test, to the extent that (i) he was unable to return to his pre-injury work due to restrictions from the injury, and (ii) Ford provided him light-duty work at wages equal to or greater than his pre-injury wage. However, the parties disagree as to the meaning of the phrase “for a period not exceeding twenty-four consecutive months” in
Under well-settled rules of statutory construction, “we consider the language of a statute to determine the General Assembly‘s intent from the plain and natural meaning of the words used.” Alcoy v. Valley Nursing Homes, Inc., 272 Va. 37, 41, 630 S.E.2d 301, 303 (2006) (citations omitted). That is, “words [in a statute] are to be given their ordinary meaning, unless it is apparent that the legislative intent is otherwise.” Phelps v. Commonwealth, 275 Va. 139, 142, 654 S.E.2d 926, 927 (2008) (citations omitted). And “we must assume that ‘the legislature chose, with care, the words it used when it enacted the relevant statute, and we are bound by those words as we interpret the statute.‘” Rasmussen v. Commonwealth, 31 Va.App. 233, 238, 522 S.E.2d 401, 403 (1999) (quoting Frazier v. Commonwealth, 27 Va.App. 131, 135, 497 S.E.2d 879, 881 (1998)). Furthermore, it is our “duty ... ‘to interpret the several parts of a statute as a consistent and harmo-nious whole so as to effectuate the legislative goal.‘” Oraee v. Breeding, 270 Va. 488, 498, 621 S.E.2d 48, 52 (2005) (quoting Virginia Elec. & Power Co. v. Board of County Supervisors of Prince William County, 226 Va. 382, 387-88, 309 S.E.2d 308, 311 (1983)). Thus, we “‘will look to the whole body of [a statute] to determine the true intention of each part.‘” Id. (quoting McDaniel v. Commonwealth, 199 Va. 287, 292, 99 S.E.2d 623, 627 (1957)).
Under the Virginia Workers’ Compensation Act, a claimant may be paid compensation from time to time for various periods of disability under successive awards arising from the same compensable injury, as occurred in this case.
The date for which compensation was last paid under any award is thus the determining factor as to whether a change-in-condition application is time-barred under
In construing the word “a” in a similar statutory context, the Virginia Supreme Court recently stated that the “ordinary meaning” of this indefinite article is “‘any’ or ‘each.‘” Phelps, 275 Va. at 142, 654 S.E.2d at 927 (quoting Webster‘s Third New International Dictionary 1 (1993)). See In the Matter of Carroll, 124 Ohio App.3d 51, 705 N.E.2d 402, 404 (1997) (holding that the statutory term, “a period of up to six months,” contemplates multiple periods and that the word “any” in the subject statute “means one out of many, i.e., an indefinite number“).
Accordingly, the
Here, during three different periods following Gordon‘s compensable injury, Ford paid Gordon wages equal to or more than his pre-injury wage for performing light-duty work while under awards for temporary partial disability. The first two such periods extended from October 23, 2000 through January 3, 2001 and from April 1, 2002 through June 30, 2002. The third such period extended without interruption from April 20, 2003 through September 11, 2006, following the commission‘s January 13, 2003 open-ended award of compensation to Gordon for partial disability. Therefore, during the first twenty-four months of this third period of Gordon‘s light-duty employment for Ford, Gordon‘s wages were to be “considered compensation” for purposes of tolling the
III. CONCLUSION
For these reasons, we reverse the commission‘s decision and remand for further proceedings consistent with this opinion.
Reversed and remanded.
HALEY, J., dissenting.
I respectfully dissent. I would hold
In relevant part,
A. Upon its own motion or upon the application of any party in interest, on the ground of a change in condition, the Commission may review any award and on such review may make an award ending, diminishing or increasing the compensation previously awarded, subject to the maximum or minimum provided in this title, and shall immediately send to the parties a copy of the award.... No such review shall be made after twenty-four months from the last day for which compensation was paid, pursuant to an award under this title....
* * * * *
C. 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.
When examining the meaning of a statute, we look first to its plain language. Alcoy v. Valley Nursing Homes, Inc., 272 Va. 37, 41, 630 S.E.2d 301, 303 (2006). To this end, “we examine the statute in its entirety, rather than by isolating particular words or phrases.” Earley v. Landsidle, 257 Va. 365, 369, 514 S.E.2d 153, 155 (1999). The Court assumes the General Assembly carefully chose the terms used. Simon v. Forer, 265 Va. 483, 490, 578 S.E.2d 792, 796 (2003). We may not “add language to the statute the General Assembly has not seen fit to include,” Jackson v. Fid. & Deposit Co., 269 Va. 303, 313, 608 S.E.2d 901, 906 (2005) (citation omitted), or give statutory terms of definite meaning “a construction that amounts to holding that the General Assembly meant something other than that which it actually expressed,” Lee County v. Town of St. Charles, 264 Va. 344, 348, 568 S.E.2d 680, 682 (2002). When the statutory language is clear, “we are bound by the plain meaning of that language.” Vaughn, Inc. v. Beck, 262 Va. 673, 677, 554 S.E.2d 88, 90 (2001). The statutory interpretation at issue here concerns a pure question of law and so we review the commission‘s decision de novo. Town of Waverly Law Enforcement v. Owens, 51 Va.App. 277, 280, 657 S.E.2d 161, 163 (2008).
I would hold that the language of
Although the majority holds the General Assembly intended to permit multiple periods of extension, our case law shows the language of “a period” contemplates only one period. Our Supreme Court addressed this issue in Corns v. School Board of Russell County, 249 Va. 343, 454 S.E.2d 728 (1995). There the Court considered the meaning of statutory language requiring “[a] probationary term of service for three years” for teachers. Id. at 349, 454 S.E.2d at 732. The Court held that while the phrase “service for three years” could “be interpreted as service in each of three intermittent school years ... [t]he words ‘a term’ mean one such period.” Id.; see also Van Dresser v. Firlings, 305 Mass. 51, 24 N.E.2d 969, 970 (1940) (“The word ‘period’ as applied to time carries with it the idea of the separation of a designated interval of time from the flow of time in general. The words ‘a period’ do not readily expand to include an irregular succession of times or periods of varying length....“). As applied here, the language in
If the General Assembly had intended to permit multiple periods of tolling under
When combined with the language of a single period, the statutory grant of an extension “not exceeding twenty-four consecutive months” also evidences an intent to limit tolling to a defined period.
The majority‘s conclusion that the term “consecutive” means the period of extension described in
is a period not exceeding twenty-four consecutive months. As the dictionary states, the time is unspecified. Yet for the majority, the statute specifies a twenty-four-month period. This changes the language of “a period not exceeding twenty-four consecutive months” to “a period equal to twenty-four consecutive months.” I cannot reconcile “not exceeding” with “equal to.”
It may be objected that the statute could allow multiple single periods not exceeding twenty-four consecutive months based on new awards consistent with the above interpretation of language. Such an objection fails because of the absurd results it produces plainly contrary to the intent of the General Assembly.
Indeed, an enormous problem in this case is that both the majority and commission interpretations cause potentially absurd results under the statute. Our Supreme Court has repeatedly cautioned that “a statute should never be construed in a way that leads to absurd results.” Meeks v. Commonwealth, 274 Va. 798, 802, 651 S.E.2d 637, 639 (2007). An absurd result is one “in which the law would be internally inconsistent or otherwise incapable of operation.” Cook v. Commonwealth, 268 Va. 111, 116, 597 S.E.2d 84, 87 (2004). Our Supreme Court construed language to avoid absurd results in Marsh v. City of Richmond, 234 Va. 4, 360 S.E.2d 163 (1987). There a city charter permitted city council members to be reimbursed for their extraordinary expenses. Id. at 5, 360 S.E.2d at 164. The Court held the General Assembly intended that only unusual, unforeseen expenses had eligibility for reimbursement. Id. at 12, 360 S.E.2d at 168. The Court acknowledged some expenses could be extraordinary simply because of the great expense incurred, but warned this situation would be rare. Id. To allow ordinary large expenses eligibility for reimbursement “might produce the absurd result that an item of expense, admittedly not of a kind or type intended ... to be reimbursable and, in this sense, not extraordinary, may yet be found extraordinary and hence reimbursable simply because the claimant expends an exorbitant amount on the item.” Id. at 13, 360 S.E.2d at 168. “[T]he General Assembly did not intend such an absurd result.” Id. Similarly, in Valley Acceptance Corp. v. Glasby, 230 Va. 422, 431, 337 S.E.2d 291, 296 (1985), the Court found an absurd result would occur where a party could “escape the Act by doing exactly what it forbids.” It is apparent from these cases that where a construction would plainly go contrary to legislative intent in a substantial number of instances, such an interpretation represents an absurd result a court should avoid.
The majority‘s holding causes absurd results for several reasons. First, by holding tolling re-starts upon each award, the majority permits those having benefits reinstated after a termination for non-compliance with the Workers’ Compensation Act to benefit from that disobedience.10 The notion that a
repudiated in Valley Acceptance Corp. Second, the majority‘s holding inverts the purpose of the statute of limitations by least aiding those the statute seeks to protect and most assisting those not requiring protection. As previously noted,
The commission‘s interpretation may cause absurd results since even such a brief break for a doctor‘s appointment instantly terminates the single twenty-four-month period.13 This could happen to many employees soon after returning from an injury, making the tolling period meaningless because of its brevity.
Thus, in the interpretations of both the majority and the commission, the General Assembly‘s plain intent that employees receive a limited period of tolling fails in a manifest way, rendering the statute “incapable of operation.” Cook, 268 Va. at 116, 597 S.E.2d at 87.
next twenty-four months, those earnings are considered compensation. If the employee temporarily leaves work and then returns, the wages remain compensation. However, the single twenty-four month period permanently ends for that injury twenty-four-months from the start of light-duty work at or above pre-injury wages.
This interpretation also accords with the principles of language expressed above. The statute‘s language of “a period” finds fulfillment in a single period. The period does not exceed twenty-four months. Furthermore, the period is up to, but not exceeding twenty-four months since an employee could leave work and not return before the period‘s expiration. Such an employee would receive less than the full period in tolling. Finally, the twenty-four months run consecutively.
Support for this interpretation as the fulfillment of the General Assembly‘s intent becomes clearer when considered in light of workers’ compensation jurisprudence from other jurisdictions.
Although
To remedy these perceived ills, payments of wages to injured employees were held to toll the statute of limitations. Precisely when these wages operate a tolling, however, differs among jurisdictions. One leading treatise has summarized a general rule in this way: “A theoretically correct rule ... would be this: Payment of wages tolls the statute if it was intended to be made on account of compensation liability, or if the employee reasonably believed it was so intended.” 7 Arthur Larson & Lex K. Larson, Larson‘s Workers’ Compensation Law § 126.07[12] (2004).
In enacting
The majority‘s holding eviscerates the balance struck by
In summary, the language of
authorizing “a period” rather than “periods” denotes a single period. Taken together, the words “not exceeding” and “consecutive” show the General Assembly desired an extension of the statute of limitations up to but no greater than twenty-four consecutive months. The twenty-four-month period starts when an employee begins light-duty work at or above pre-injury pay and the earnings from such work in the ensuing twenty-four months are considered compensation, regardless of whether breaks in work or other awards occur. After twenty-four months, the employee may not receive additional tolling for the injury that caused the tolling to occur.
Here Gordon returned to light-duty work earning at or above his pre-injury wages in October 2000. This started the twenty-four-month tolling provision of
For the foregoing reasons, I would affirm the judgment of the commission.
Notes
A. After an injury and so long as he claims compensation, the employee, if so requested by his employer or ordered by the Commission, shall submit himself to examination, at reasonable times and places, by a duly qualified physician or surgeon designated and paid by the employer or the Commission....
B. If the employee refuses to submit himself to or in any way obstructs such examination requested by and provided for by the employer, his right to compensation and his right to take or prosecute any proceedings under this title shall be suspended until such refusal or objection ceases and no compensation shall at any time be payable for the period of suspension unless in the opinion of the Commission the circumstances justify the refusal or obstruction.
Under the majority‘s holding, if an employee unreasonably refused a medical exam and so had benefits suspended, but then agreed to the exam, a new award ordering reinstatement of benefits would renew the tolling period, even though the issue only arose at all because of the employee‘s disobedience to the Act. Such a result is plainly erroneous, for a person may not extend the tolling provisions otherwise applicable in the Act “by doing exactly what it forbids.” Valley Acceptance Corp., 230 Va. at 431, 337 S.E.2d at 296.While it is true that reinstatement of compensation after an employee‘s breach of the Act resulted in termination would toll the statute of limitations under subsection A, such tolling would occur with or without the employee‘s disobedience. On the other hand, the employee would not receive a new award—and hence an additional twenty-four months of tolling under subsection C—without the disobedience.
Moreover, the purpose of Virginia