Ford Motor Co. v. Gordon
| Court | Supreme Court of Virginia |
| Citation | 281 Va. 543,708 S.E.2d 846 |
| Docket Number | Record No. 100070. |
| Parties | FORD MOTOR COMPANYv.John T. GORDON, Jr. |
| Decision Date | 21 April 2011 |
281 Va. 543
708 S.E.2d 846
FORD MOTOR COMPANY
v.
John T. GORDON, Jr.
Record No. 100070.
Supreme Court of Virginia.
April 21, 2011.
[708 S.E.2d 848]
Barry J. Dorans (Samuel W. Meekins, Jr.; Wolcott Rivers & Gates, on briefs), Virginia Beach, for appellant.Gregory E. Camden (Montagna Klein Camden, on brief), for appellee.Present: KINSER, C.J., LEMONS, GOODWYN, MILLETTE, and MIMS, JJ., and RUSSELL, and KOONTZ, S.JJ.OPINION BY Justice DONALD W. LEMONS.
[281 Va. 545] In this appeal in which a claimant's change-in-condition application for benefits was rejected by the Workers' Compensation Commission (“commission”) as being time-barred, we consider whether the Court of Appeals erred by reversing the commission's decision [281 Va. 546] and by holding that the provision in Code § 65.2–708(C) tolling the statute of limitations set out in Code § 65.2–708(A) runs anew under each successive award of compensation for a compensable injury.
John T. Gordon, Jr. (“Gordon”) suffered a compensable injury by accident on January 9, 2000, while working at Ford Motor Company's (“Ford”) production plant in Norfolk. Based on this injury, the commission entered a series of awards of compensation to Gordon for various periods of temporary total and temporary partial disability. The last of these awards, entered on January 13, 2003, was an open-ended award for temporary partial disability. Gordon received his last direct payment of compensation under this award on February 23, 2003.
Following his injury, Gordon continued to work for Ford intermittently, between periods of temporary total disability, in a light-duty position due to restrictions arising from the injury. From October 23, 2000 to January 3, 2001, and from April 1, 2002 through June 30, 2002, Gordon worked in this light-duty 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, Gordon filed a change-in-condition application seeking temporary total disability benefits based on lost wages caused by this “change in condition.” Shortly thereafter, Gordon also requested that the commission “address[ ] the issue of temporary partial [disability] benefits,” and added additional dates for which he was seeking “an award for ... benefits and a change in condition as well.” 1
[281 Va. 547] Ford defended against Gordon's 2006 application for benefits, in part, by arguing that it was time-barred. Ford asserted that the application was not filed within two years of Gordon's last payment of compensation on February 23, 2003, that this last payment triggered the running of the two-year statute
[708 S.E.2d 849]
of limitations under Code § 65.2–708(A), and therefore the application was untimely.
Relying on Code § 65.2–708(C), Gordon argued that his application was not time-barred because all the wages he received for the first twenty-four months of the last period he worked for Ford in a light-duty capacity, from April 20, 2003 to September 11, 2006, were deemed to be compensation. Gordon therefore asserted that the two-year statute of limitations in Code § 65.2–708(A) did not begin to run until April 20, 2005, meaning that his application filed in September 2006 was timely.
Ford responded that the twenty-four-month tolling provision in Code § 65.2–708(C) could be triggered only once, which occurred when Gordon returned to work in a light-duty position in October 2000. Ford asserted that when Gordon was again awarded temporary total disability benefits in January 2001, the tolling provision was no longer applicable. Thus, 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 because 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 “[n]othing in the statute indicates that the provisions of Code § 65.2–708(C) do not begin to run anew after later periods of temporary partial disability or temporary total disability for which awards are entered.”
Ford appealed the deputy commissioner's decision to the full commission. The commission held that Gordon's change-in-condition application was time-barred based, in part, upon its conclusion that the Code § 65.2–708(C) tolling provision does not “ ‘begin to run anew’ after later periods of awarded disability.” In other words, the commission held that the provision is applicable only once to a compensable injury regardless of the number of awards of compensation [281 Va. 548] for subsequent periods of disability that may arise from the injury. Gordon appealed the commission's decision to the Court of Appeals.
A three-judge panel of the Court of Appeals reversed the commission's decision. Gordon v. Ford Motor Co., 53 Va.App. 616, 624, 674 S.E.2d 545, 548–49 (2009). Ford subsequently moved for a rehearing en banc, and the Court of Appeals again reversed the commission's decision, concluding that
the Code § 65.2–708(A) statute of limitations runs anew under each successive award of compensation for a...
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