George Lee Seekford v. Hershey Tire Company

• Court: Court of Appeals of Virginia
• Decided: July 3, 2001
• Docket: 0518013
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Bumgardner and Senior Judge Hodges

GEORGE LEE SEEKFORD MEMORANDUM OPINION* v. Record No. 0518-01-3 PER CURIAM JULY 3, 2001 HERSHEY TIRE COMPANY, INC. AND RELIANCE INSURANCE COMPANY

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Terry L. Armentrout; Armentrout & Armentrout, P.L.C., on brief), for appellant.

(Dale W. Webb; Monica L. Taylor; Gentry, Locke, Rakes & Moore, on brief), for appellees.

George Lee Seekford (claimant) contends that the Workers'

Compensation Commission erred in finding that he failed to prove

that the statute of limitations applicable to his

change-in-condition application was tolled pursuant to Code

§ 65.2-708(C). Upon reviewing the record and the briefs of the

parties, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the commission's decision. See

Rule 5A:27.

Code § 65.2-708 required claimant to file his

change-in-condition application within twenty-four months from

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. the last date for which he was paid compensation pursuant to an

award. It was undisputed that claimant was last paid

compensation pursuant to an award on June 15, 1997. It was also

undisputed that he did not file his change-in-condition

application until September 27, 1999, more than twenty-four

months from the last date for which he was paid compensation

pursuant to an award. Accordingly, unless the tolling provision

contained in Code § 65.2-708(C) applied to extend the

limitations period, claimant's September 27, 1999 application

was time-barred.

Code § 65.2-708(C) provides as follows:

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) applies to a light duty or selective

employment situation. If an employee, despite restrictions, can

perform his or her pre-injury work for pre-injury wages, those

wages are not considered compensation under the tolling

provision." Nguyen v. Fairfax County Bd. of Supervisors, 26 Va.

App. 100, 103, 493 S.E.2d 391, 392 (1997) (footnote omitted).

On June 10, 1997, claimant's treating physician, Dr. Donald

P.K. Chan, released claimant to return to his pre-injury job,

without restrictions, as of June 16, 1997. Claimant returned to

- 2 - his pre-injury job and worked full duty from June 16, 1997 until

September 1, 1999, without missing any time from work. He did

not seek medical treatment during that time. "Though [his]

method of work was easier, [his] duties were identical, and no

evidence established that claimant sought or was provided light

duty work." Id. at 104, 493 S.E.2d at 392 (footnote omitted).

Thus, credible evidence established that claimant's post-injury

job was not light duty or selective employment for the purpose

of the tolling provision contained in Code § 65.2-708(C).

Moreover, based upon this credible evidence, the

commission, as fact finder, was entitled to give little

probative weight to Dr. Chan's statement in his March 1, 2000

responses to claimant's counsel's written questions that

claimant had been restricted and unable to engage in frequent

heavy lifting since his release to return to work in June 1997.

The record contained no explanation for Dr. Chan's change in his

opinion regarding claimant's ability to work beginning in June

1997. Furthermore, in response to written questions from

employer dated March 1, 2000, Dr. Chan agreed that claimant had

been released to return to work, full duty, effective June 16,

1997.

In addition, the fact that the employer retrofitted its

workplace with an airlift after claimant's accident and before

he returned to work on June 16, 1997, eliminating the need for

- 3 - claimant to lift tires, did not necessitate a finding that

claimant had been provided light duty or selective employment as

of June 16, 1997, at a wage equal to or greater than his

pre-injury wage. No evidence showed that employer retrofitted

to accommodate claimant's disability or that it changed the

essential duties of claimant's job. See id. at 103-04, 493

S.E.2d at 392.

For these reasons, we affirm the commission's decision

finding claimant's change-in-condition application untimely.

Affirmed.

- 4 -