Armstrong Furniture v. Elder, 0784-86-3

• Decision Date: 19 May 1987
• Docket Number: No. 0784-86-3,0784-86-3
• Citation: 4 Va.App. 238,356 S.E.2d 614
• Parties: ARMSTRONG FURNITURE and Liberty Mutual Fire Insurance Co. v. Sandra Martin ELDER. Record
• Court: Virginia Court of Appeals

Page 614

356 S.E.2d 614

4 Va.App. 238

ARMSTRONG FURNITURE and Liberty Mutual Fire Insurance Co. v. Sandra Martin ELDER.

Record No. 0784-86-3.

Court of Appeals of Virginia.

May 19, 1987.

James C. Joyce, Jr., Roanoke, Va. (Gentry, Locke, Rakes and Moore, on brief), for appellants.

Gary L. Lumsden, Roanoke, Va., for appellee.

Present: KOONTZ, C.J., and COLEMAN and MOON, JJ.

KOONTZ, Chief Judge.

Armstrong Furniture and its insurer, Liberty Mutual Fire Insurance Co., (appellants) appeal a decision of the Industrial Commission awarding Sandra Martin Elder (appellee) weekly disability benefits pursuant to Code § 65.1-99 based on a change in condition. Appellants argue that: (1) Elder's claim for temporary total disability payments was time-barred by Code § 65.1-56; and (2) appellants are not liable for Elder's alleged disability because she unjustifiably refused selective employment offered by Armstrong for a reason unconnected with the compensable injury. For the reasons stated below, we affirm.

I. Statute of Limitations Issue ¹

Elder suffered a compensable injury on December 15, 1980, while employed by Armstrong, when a machine blade severely lacerated her left hand, cutting the extensor tendons in four fingers and crushing her forearm. Elder received temporary total compensation for thirty-two and one-half weeks until she returned to selective employment. She remained at Armstrong in a selective capacity for twenty-two months until she was discharged in October 1982.

After a determination that Elder's hand and arm had reached maximum recovery, she and Armstrong agreed pursuant to Code § 65.1-56 to an award for eighty-two weeks of compensation for permanent partial disability. This award covered the period from August 24, 1982 to March 19, 1984, and was based on a five percent loss of use of the left arm and a forty-eight percent loss of use of the left hand.

Following her discharge from Armstrong in October 1982, Elder was continuously employed in several positions. She asserts that all of these jobs terminated because of problems related to her left arm and hand and that since December 1985 she has been self-employed in order to accommodate her health problems.

On December 4, 1985, Elder applied to the commission for a hearing, alleging that based on a change in condition she was entitled to additional temporary total compensation pursuant to Code § 65.1-99. She alleged that the change in condition was the deterioration of her medical condition. In his opinion of March 12, 1986, Deputy Commissioner Yates found that Elder met her burden of proving a change in condition and awarded her temporary total disability payments beginning September 4, 1985.

Armstrong filed an application for review and a hearing before the full commission. In its opinion of June 13, 1986, the commission affirmed the award.

At issue here is whether Code § 65.1-56 or Code § 65.1-99 applies to Elder's application for additional compensation. Code § 65.1-56 is the section under which Elder originally received compensation for permanent partial disability from August 24, 1982 until March 19, 1984. That section provides in pertinent part:

In cases included by the following schedule the incapacity in each case shall be deemed to continue for the period specified and the compensation so paid for such injury shall be as specified therein and shall be in lieu of all other compensation. After compensation has been paid as provided herein, the employee may within one year from the date compensation was last due under this section file an application for compensation for incapacity to work

....

Code § 65.1-99 provides in pertinent part:

Upon its own motion or upon the application of any party in interest, on the ground of a change in condition, the Industrial Commission may review any award and on such review may make an award ending, diminishing or increasing the compensation previously awarded.... No such review shall be made after twenty-four months from the last day for which compensation was paid....

Code § 65.1-99 is not a statute of limitations in the ordinary sense. It does not provide that a claimant has twenty-four months from the date the change in condition occurred to file; but instead, it provides that the change in condition must occur within twenty-four months from the date compensation was last due or paid. In the instant case, the date compensation was last due or paid was March 19, 1984.

If Code § 65.1-56 applies, as appellants argue, the period for filing an additional claim ended on March 19, 1985, nearly nine months before Elder applied for a review. If, however, as Elder argues, Code § 65.1-99 applies, the period for filing did not expire until March 19, 1986, some four months after Elder applied for a review.

Appellants argue that Code § 65.1-56 applies to filing an application for compensation following the termination of an award for permanent partial disability. Appellants cite the statutory definition of "change in condition" in support of this argument. Code § 65.1-8 defines "change in condition" as "a change in physical condition of the employee as well as any change in the conditions under which compensation was awarded or terminated which would affect the right to, amount of, or duration of compensation." Thus, appellants contend that a "change in condition" contemplates not only a physical change, but it also includes changed circumstances. Taken to its logical conclusion, cessation of payments of a Code § 65.1-56 award would constitute a "change in the conditions under which compensation was awarded" which would trigger the two year limitation period of Code § 65.1-99. Thus, appellants argue that the two year limitation period of Code § 65.1-99 would virtually swallow the one year limitation period of Code § 65.1-56, rendering it a nullity. Because no statute should be interpreted in a way which would render another statute superfluous, appellants argue that Code § 65.1-56 must be strictly construed to mean that a one year limitation period applies to the filing of an application for compensation at the end of an award for permanent partial disability pursuant to Code § 65.1-56.

On the other hand, Elder argues that the proper inquiry is simply whether there has been a "change in condition" or an "incapacity to work" at the time payments cease. If a "change in condition" can be shown, then the two year limitation period of Code § 65.1-99 applies. If there has been no change in condition but instead a continued "incapacity to work," then the one year limitation period of Code § 65.1-56 applies. We agree.

Code § 65.1-56 allows for compensation for permanent partial incapacity to work for a period of time specified by statute. Upon expiration of that time period, the claimant may file an application for additional compensation within one year from the date compensation was last due. Thus, the one year limitation period of Code § 65.1-56 is triggered not only by a cessation of payments, but also by a continued incapacity to work. If on March 19, 1984, when her compensation ceased, Elder was still suffering from a forty-eight percent loss of use of her left hand and a five percent loss of use of her left arm, but otherwise her condition had neither deteriorated nor improved, nor had any related conditions under which the award was made changed, then under Code § 65.1-56 Elder had until March 19, 1985 to apply for additional compensation for incapacity to work subject to the provisions of §§ 65.1-54 and 65.1-55.

On the other hand, Code § 65.1-99 is triggered by a "change in condition." That change can be in the physical condition of the employee as well as a change in the conditions under which the compensation was awarded. Code § 65.1-8. These changes include "progression, deterioration, or aggravation of the compensable condition ... appearance of new or more serious features [and] failure to recover within the time originally predicted...." 3 A. Larson, The Law of Workmen's Compensation § 81.31(a) (1983). An application for review under Code § 65.1-99 must be made within two years from the last date for which compensation was paid.

We hold that Code § 65.1-99 is the controlling statute in this case. The overwhelming medical evidence presented by Elder established that the mobility and range of use in her left arm and hand seriously deteriorated after the original award, thus establishing a physical change in condition. Not only did Elder suffer from a continuing disability from the original injury on the date compensation was last due in March 1984, she also suffered a deterioration in her condition after she and Armstrong agreed to the award in September 1982. The progress notes of her treating physician, Dr. Jay E. Hopkins, indicate as early as November 1982 that Elder was suffering from increased left shoulder pain. His notes of February and April 1983 indicate muscle pain in this area for which Elder was given systemic steroid injections. During the summer of 1984, Elder was also treated by Dr. G. Poehling of the Bowman Gray School of Medicine who performed repeat web z-plasty of her left hand. He noted on July 24, 1984, that Elder had received prolonged treatment without significant effect. He noted that some surgery would be helpful mechanically but would restrict movement. In May, 1985, he recommended cervical traction for the spasms that Elder was experiencing. He again noted on June 24, 1985, that she was suffering from gradually increasing pain and stiffness in her shoulder and hand and the base of her neck which resulted in decreased mobility. Dr. Charles R. Joseph, a neurosurgeon, also examined Elder and on July 8, 1985, diagnosed her condition as "sympathetic dystrophy: left hand tingling and numbness." He attributed this condition to the 1980 injury. During the summer of 1985, Elder underwent a series of left stellate ganglion blocks to relieve problems with a frozen left...