Saffert v. Fairfax County Sch. Bd.

• Decision Date: 17 January 2012
• Docket Number: Record No. 0870–11–4.
• Parties: Kathryn M. SAFFERT v. FAIRFAX COUNTY SCHOOL BOARD.
• Court: Virginia Court of Appeals

275 Ed. Law Rep. 1005

59 Va.App. 458

720 S.E.2d 139

Kathryn M. SAFFERT

v.FAIRFAX COUNTY SCHOOL BOARD.

Record No. 0870–11–4.

Court of Appeals of Virginia, Alexandria.

Jan. 17, 2012.

James J. Faughnan (Jesse B. Gordon; Seeger Faughnan Mendicino, PC, Dulles, on brief), for appellant.

Michael N. Salveson, Tysons Corner (Andrea K. Zizzi; Littler Mendelson, on brief), for appellee.

Before: HALEY, BEALES and ALSTON, JJ.

RANDOLPH A. BEALES, Judge.

The Workers' Compensation Commission (commission) is authorized to review awards on the ground of a change in condition under Code § 65.2–708, which states in pertinent part:

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, except: (i) thirty-six months from the last day for which compensation was paid shall be allowed for the filing of claims payable under § 65.2–503 and certain claims under subsection B of § 65.2–406 or (ii) twenty-four months from the day that the claimant undergoes any surgical procedure compensable under § 65.2–603 to repair or replace a prosthesis or orthosis.

Code § 65.2–708(A) (emphasis added).

In this appeal, Kathryn Saffert (Saffert) challenges the commission's finding that a prosthesis was removed from her ankle during a September 12, 2008 surgery—but was not replaced within the meaning of Code § 65.2–708(A)(ii). For the following reasons, we affirm the commission's holding.

I. Background

While working as an elementary school teacher for the Fairfax County School Board (employer), Saffert suffered a compensable injury on September 18, 2002, when she stepped in a hole at the school playground and fractured her ankle. Saffert was awarded reasonable and necessary lifetime medical benefits. Saffert was also awarded various periods of wage loss benefits. The last period of Saffert's wage loss benefits ended on March 11, 2005.

On June 23, 2005, Saffert underwent a total ankle replacement surgery. During this procedure, a titanium prosthesis was placed in Saffert's ankle area. This prosthesis was designed to simulate her ankle's natural motion.

However, in the years following her total ankle replacement surgery, Saffert's range of motion was unsatisfactory and her pain continued—leading Dr. Kitaoka of the Mayo Clinic to conclude that the total ankle replacement had failed. Dr. Kitaoka recommended removing the prosthesis and performing “an arthrodesis in order to provide stability and relief.” The commission's record in this case states that an arthrodesis is a procedure that fuses a joint into a fixed position.

On September 12, 2008, Dr. Kitaoka performed the arthrodesis of Saffert's left ankle, noting the following procedure: “1. Removal of total ankle replacement. 2. Removal of retained compression screws. 3. Ankle arthrodesis with intercalated iliac crest bone graft and internal fixation.” At his final evaluation of Saffert, in March 2009, Dr. Kitaoka noted that Saffert's pain had improved somewhat—but that Saffert had “permanent stiffness of her ankle and hindfoot” due in large part to the September 12, 2008 arthrodesis procedure.

On April 3, 2009, Saffert filed a change-in-condition application in the commission, requesting permanent partial disability benefits. Employer asserted that Saffert's change-in-condition application was untimely under Code § 65.2–708(A) because Saffert filed this application more than 24 months after March 11, 2005—the last date that compensation had been paid to her. In response, Saffert contended that her total ankle replacement prosthesis was actually replaced during the September 12, 2008 arthrodesis procedure. Thus, Saffert claimed that her April 3, 2009 change-in-condition application was timely under Code § 65.2–708(A)(ii) because the arthrodesis was a surgical procedure “to repair or replace” a prosthesis.

At the evidentiary hearing before the deputy commissioner, Saffert was asked on cross-examination whether the prosthesis used in the June 23, 2005 total ankle replacement surgery was supposed to enable a range of motion “[j]ust like” she had before her ankle injury. Saffert responded in the affirmative. Saffert then testified that the prosthesis was removed and that her ankle joint was fused during the September 12, 2008 surgery. Saffert's cross-examination continued accordingly:

Q. It's not mobile anymore?

A. No. It doesn't ...

Q. And that fused joint, it doesn't work like an ankle joint. It's just stationary, right?

A. It's stationary.

Based on the medical evidence and Saffert's own testimony, the deputy commissioner found that the prosthesis was removed—but not repaired or replaced—during the arthrodesis procedure on September 12, 2008. Therefore, the deputy commissioner found that Code § 65.2–708(A)(ii) was inapplicable—and that Saffert's change-in-condition application was untimely under the general 24–month limitations period mentioned in Code § 65.2–708(A).

On review by the full commission, Saffert argued that the deputy commissioner misinterpreted Code § 65.2–708(A)(ii) by requiring that the prosthesis be replaced by another prosthesis. Saffert urged the commission to define the verb “replace” as simply “to put something ... in the place of something.” A majority of the commissioners disagreed with Saffert's argument, finding:

It is difficult to believe the legislature intended this result, since, as pointed out by the employer, one would expect that, whenever a joint prosthesis is removed, it would be replaced by something, even if only a suture. Had the legislature intended so broad a reading, it seems more likely that they would have simply used the phrase “remove a prosthesis” rather than “replace a prosthesis.”

Saffert also argued to the full commission that her total ankle replacement prosthesis had actually been replaced by a “longitudinal Steinmann pin” during the September 12, 2008 arthrodesis procedure. However, the commission majority found:

At the hearing below, the employer introduced a copy of the definition of prosthesis as set forth in Dorland's Illustrated Medical Dictionary, 30th edition, which states: “an artificial substitute for a missing body part, such as an upper limb, lower limb, eye, or tooth, used for functional or cosmetic reasons, or both.”

As the employer points out, the purpose of the prosthesis was to replace the function of the claimant's ankle joint. The function of the ankle joint is to permit motion. The purpose of removing the claimant's prosthesis, and fusing the joint, was to prevent any motion of the joint. There is simply no sense in which the claimant's prosthesis was replaced with another prosthesis.

Accordingly, the commission found that the change-in-condition application that Saffert filed on April 3, 2009 was untimely under Code § 65.2–708(A).

II. Analysis

“According to Code § 65.2–708(A), a party may ask the commission to ‘review any award’ of benefits based upon ‘the ground of a change in condition.’ ” Ford Motor Co. v. Gordon, 281 Va. 543, 550, 708 S.E.2d 846, 850 (2011) (quoting Code § 65.2–708(A)). “ ‘[I]n an application for review of any award on the ground of change in condition, the burden is on the party alleging such change to prove his allegations by a preponderance of the evidence.’ ” Herbert Clements & Sons, Inc. v. Harris, 52 Va.App. 447, 458, 663 S.E.2d 564, 570 (2008) (quoting Great Atl. & Pac. Tea Co. v. Bateman, 4 Va.App. 459, 464, 359 S.E.2d 98, 101 (1987)).

In addition, as the Supreme Court noted in Gordon, Code § 65.2–708(A) “also includes language that acts, in effect, as a statute of limitations.” Gordon, 281 Va. at 551, 708 S.E.2d at 851. Relevant to this appeal, Code § 65.2–708(A)(ii) permits review of an award within “twenty-four months from the day that the claimant undergoes any surgical procedure compensable under § 65.2–603 to repair or replace a prosthesis or orthosis.”

A. The Commission Did Not Err in Interpreting Code § 65.2–708(A)(ii)

Saffert argues that the commission misinterpreted Code § 65.2–708(A)(ii) by requiring that a prosthesis be replaced by another prosthesis that serves the same function or purpose as the prosthesis being replaced. Saffert contends that the commission interpreted Code § 65.2–708(A)(ii) too narrowly, and, therefore, failed “to liberally construe the provisions” of the Workers' Compensation Act and “to carry out its humane and remedial” purposes. Frey v. Gunston Animal Hosp., 39 Va.App. 414, 421, 573 S.E.2d 307, 310 (2002); see Dinwiddie Cnty. Sch. Bd. v. Cole, 258 Va. 430, 436, 520 S.E.2d 650, 653 (1999). Saffert raises an issue of statutory interpretation, which we review de novo on appeal. Prince William Co. School Bd. v. Rahim, 58 Va.App. 493, 500, 711 S.E.2d 241, 244 (2011) (en banc).

The Workers' Compensation Act does not expressly define what it means to “replace” a prosthesis for the purposes of Code § 65.2–708(A)(ii). When, as here, “ ‘a statute contains no express definition of a term, the general rule of statutory construction is to infer the legislature's intent from the plain meaning of the language used.’ ” Grafmuller v. Commonwealth, 57 Va.App. 58, 62, 698 S.E.2d 276, 278 (2010) (quoting Hubbard v. Henrico Ltd. Pshp., 255 Va. 335, 340, 497 S.E.2d 335, 338 (1998)). To that end, “this Court follows the long-held standard that the clear meanings of words are controlling” and determines the legislature's intention from the plain language of the statute, “ ‘unless a literal construction would involve a manifest absurdity.’ ” Alston v. Commonwealth, 49 Va.App. 115, 124, 637 S.E.2d 344, 348 (2006) (quoting Watkins v. Hall, 161 Va. 924, 930, 172 S.E. 445, 447 (1934)). Simply put, “[o]nce the legislature has acted, the role of the judiciary ‘is the narrow one of determining what [the legislature] meant by the words it used in the statute.’ ” Chapman v. Commonwealth, 56 Va.App. 725, 732, 697 S.E.2d 20, 24 (2010) (quoting Dionne v. Se. Foam Converting & Packaging, Inc., 240...