Virginia court sides with injured worker, ruling temporary total disability claim was timely filed
The worker claimed her injury was initially misdiagnosed, which caused a necessary surgery to be delayed for years.
A Virginia court reversed a holding by a workers’ compensation commission after concluding that an injured corrections officer’s claim for temporary total disability was timely filed within two years of receiving qualifying wages.
Plaintiff Lucinda Walker injured her ankle while working for the Virginia Department of Corrections. The department agreed that it would pay for medical benefits connected to her injury, with the Virginia Workers’ Compensation Commission entering an award agreement formalizing it, according to the Virginia Court of Appeals opinion.
From June 24, 2019-July 22, 2021, Walker was restricted to light duty but the department paid her full wages. Over two years later, 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. Walker explained that doctors had misdiagnosed her injuries and she was finally referred to an orthopedic specialist who determined that she needed a surgical correction for a torn tendon in her foot, according to the court’s opinion.
After Walker completed her surgery, she amended her claim to include an additional request of temporary total disability benefits from the date of surgery, July 23-Oct. 4, 2021.
While the commission found that Walker’s claim was barred by the statute of limitations, claiming the award was “medical only,” and not an “order of compensation,” the appellate court concluded in a Jan. 16, 2024, opinion that “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 that “Walker’s claim was filed within two years of the last day she received qualifying wages.”
The court found Walker’s claim to be timely, and reversed and remanded the ruling.
In its review, the court was tasked with determining whether Walker’s claim was barred by the statute of limitations from the Workers’ Compensation Act. According to the court, the act outlines that the commission can review any award of compensation, though such review must occur within 24 months from the last day compensation was paid.
According to the court, Walker petitioned on July 6, 2021, alleging a change in condition. Walker first received a “medical only” award, and was later “paid full wages while she was restricted to light duty work, most recently from May 26-July 22, 2021.”
The court held that these wages are “compensation paid pursuant to an award of compensation,” which the commission may review for up to 24 months from the last date compensation was paid. As she petitioned within two years of the last time she was paid full wages for light-duty work, Walker’s petition wasn’t barred by the statute of limitations, the court concluded.
Subsection C of Code Section 65.2-708 was added by the General Assembly ”to prevent possible abuse by employers of the two-year limitation period,” which “otherwise applies under subsection A,” the court said, noting that the subsection holds that “[a]ll wages paid, for a period not exceeding 24 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 paid pursuant to an award of compensation but shall not result in a reduction of the maximum number of weeks of compensation benefits as described in §§ 65.2-500 and 65.2-518.
“More precisely, the General Assembly enacted subsection C ‘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,’” Judge Lisa M. Lorish wrote on behalf of the court. ”An employer may not pay the injured employee his pre-injury wage for two years, ‘only to have the employer later use a medical-only award to allege that a change-in-condition claim for compensation filed more than two years after the date of the accident is barred by the statute of limitations.’”
Therefore, subsection C protects “the change-in-condition claims of disabled workers who receive pre-injury wages for light-duty work,” the court held, which cited the Virginia Supreme Court’s 2011 holding in Ford Motor v. Gordon, where the high court explained that the subsection applies even when the award makes no mention of such wages.
“The Supreme Court reasoned that when equal wages were paid for light duty work under subsection C, those wages were ‘compensation,’ and that ‘compensation’ tolled subsection A’s limitation of review to the 24-month period after ‘the last day for which compensation was paid, pursuant to an award under this title,’” Lorish wrote, holding that subsection C “expand[ed] the definition of ‘compensation’ under subsection A to include wages which meet certain conditions.”
In noting that the statute doesn’t limit the commission’s authority based on the nature or type of award previously granted, the court has previously “applied the same reasoning where the original award was ‘medical only’ and did not include any compensation.”
“So long as the employer had paid equal wages for light-duty work, qualifying under subsection C, those wages were ‘compensation’ and tolled the operation of subsection A’s limitation of review ‘after 24 months from the last day for which compensation was paid, pursuant to an award under this title,’” Lorish wrote. “Thus, even though the original award did not include any compensation, [Prince William County School v.] Rahim still found wages qualifying under subsection C to be compensation ‘paid, pursuant to an award under this title’ for purposes of subsection A.”
In both Ford Motor and Rahim, in the commission’s order of compensation there’s no mention of equal wages for light duty work, noted the court, who held that “the fact that the original formal award did not require the payment of equal wages for light duty work did not impede the commission’s ability to review the compensation arrangement under subsection A given the alleged change in condition.”
Subsection A allows for “any award of compensation,” while subsection C states that “when an employer pays full wages for light-duty employment, those payments are ‘considered compensation paid pursuant to an award of compensation,” said the court, concluding that the two provisions together allow the commission to retain “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.”
“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,” the court concluded, holding that the commission erred in finding Walker’s claim for temporary total disability benefits was barred by the statute of limitations under Code Section 65.2-601.
Walker’s attorney, Brody Reid of Reid Goodwin in Richmond, and the Virginia Attorney General’s Office did not immediately respond to requests for comment.
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