Gordon v. Ford Motor Co.

Decision Date31 March 2009
Docket NumberRecord No. 0364-08-1.
CourtVirginia Court of Appeals

Gregory E. Camden (Charlene A. Morring; Montagna Klein Camden, L.L.P., on briefs), Virginia Beach, for appellant.

(Barry Dorans; Samuel W. Meekins, Jr.; Wolcott, Rivers, Gates, P.C., on brief), Virginia Beach, for appellee.



John T. Gordon, Jr. appeals the decision of the Workers' Compensation Commission denying him benefits on his change-in-condition application. Gordon argues on appeal that the commission's conclusion that his claim was time-barred by Code § 65.2-708(A) should be reversed because it "erred in ruling that [Code § ] 65.2-708(C) extends only once during the life of a workers' compensation case and that the tolling provision did not apply to the facts of this case." For the following reasons, we agree with Gordon and reverse the commission's decision.


The relevant facts are not in dispute. Gordon suffered a compensable injury by accident on January 9, 2000 while working at Ford's production plant in Norfolk. Thereafter, the commission entered a series of awards to Gordon for disability benefits based on this injury. The last of these awards, entered on January 13, 2003, was an open-ended award of compensation for partial disability.

Pursuant to the commission's awards, Gordon intermittently received payments of compensation for various periods of temporary total and temporary partial disability. One of the periods of temporary total disability extended from January 3, 2001 to February 19, 2001. Gordon received his last payment of compensation on February 23, 2003.

Following his injury, Gordon worked only in a light-duty position for Ford (when not temporarily totally disabled) because of 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 application for benefits, in part, by arguing that it was not filed within two years of his last payment of compensation and thus it was barred by the statute of limitations in Code § 65.2-708(A). Relying on Code § 65.2-708(C), Gordon claimed that his application was timely because all the wages he received until April 20, 20051 were deemed to be compensation. He therefore asserted that the two-year statute of limitations in Code § 65.2-708(A) did not begin to run until that date. Ford responded that the extension of time provided in Code § 65.2-708(C) was triggered when Gordon returned to work, in a light-duty position, in October 2000. Ford reasoned that when Gordon was again awarded temporary total disability benefits in January 2001, the extension ended. 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 since Gordon was last paid workers' compensation benefits on February 23, 2003, he 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 Code § 65.2-708(C) do not begin to run anew after later periods of 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. 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 for one 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).2

Therefore, according to the commission, the Code § 65.2-708(C) tolling provision does not " `begin to run anew" after later periods of awarded disability." In other words, the provision is applicable only once to a compensable injury regardless of the number of awards of compensation for subsequent periods of disability that may arise from the injury.

This appeal followed.


Under Code § 65.2-708(A), a party may ask the commission to "review any award" of benefits based upon a change in condition. However, "[n]o 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...." Code § 65.2-708(A). Code § 65.2-708(C), in turn, operates as a tolling provision that extends this limitation. This tolling is effected by an expanded definition of compensation to include light-duty wages that are equal to or greater than the employee's pre-injury wages:

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.

Code § 65.2-708(C).

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 Code § 65.2-708(C) as applied in this case.3

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 harmonious 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 pursuant to multiple awards based on multiple periods of disability arising from the same compensable injury, as occurred in this case. Code § 65.2-708(A) contemplates a succession of awards by authorizing the commission to "review any award"4 upon "the ground of a change in condition,"5 and "on such review ... make an award ending, diminishing or increasing the compensation previously awarded, subject to the maximum or minimum provided in this title...." (Emphasis added.) Furthermore, the two-year statute of limitations under subsection A is tolled while the claimant receives compensation. Subsection A also provides, however, that (i) a "change of condition (cause of action) must occur" and (ii) the change of condition application must be filed "within twenty-four months from the date for which the last compensation was paid." Whitten v. Mead Paperboard Products, 4 Va.App. 182, 186, 355 S.E.2d 349, 350 (1987).

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 Code § 65.2-708(A), subject to subsection C of the statute. Subsection C sets forth a caveat to the operation of the subsection A statute of limitations by providing that wages, when paid under the prescribed circumstances, are "considered compensation." Code § 65.2-708(C). As a result, the payment of such wages tolls the statute of limitations in the same manner as the payment of compensation. This caveat, in turn, is...

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