The Court of Appeals Changes the Game for Change in Condition

On January 16, 2024, The Court of Appeals of Virginia (“COA”) issued an opinion in the matter of Lucinda Walker v. Virginia Dept. of Corrections, which was on appeal from the Full Commission of the Virginia Worker’s Compensation Commission (“VWCC”) where her claim for temporary total disability based on a change in condition had been deemed barred under Virginia Code § 65.2-708. The reasoning of The COA for overturning VWCC’s decision represents a significant shift in how and under what circumstances § 65.2-708 (below) is interpreted. Specifically, in deciding when/if the clock starts for the twenty-four (24) consecutive months “from the last date compensation was paid pursuant to an award of compensation,” that the code affords a claimant to file a change in condition petition with the VWCC.

§ 65.2-708. Review of award on change in condition.

A. Upon its own motion or upon the application of any party in interest, on the ground of a change in condition, the Commission may review any award of compensation and on such review may make an award ending, diminishing or increasing the compensation previously awarded, subject to the maximum or minimum provided in this title, and shall immediately send to the parties a copy of the award. No application filed by a party alleging a change in condition shall be docketed for hearing by the Commission unless any medical reports upon which the party is relying are submitted to the Commission. No such review shall affect such award as regards any moneys paid except pursuant to §§ 65.2-712, 65.2-1105, and 65.2-1205. No such review shall be made after 24 months from the last day for which compensation was paid, pursuant to an award under this title, except: (i) 36 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) 24 months from the day that the claimant undergoes any surgical procedure compensable under § 65.2-603 to repair or replace a prosthesis or orthosis.

C. All wages paid, for a period not exceeding 24 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 paid pursuant to an award for compensation but shall not result in a reduction of the maximum number of weeks of compensation benefits as described in §§ 65.2-500 and 65.2-518.
[emphasis added]

Lucinda Walker was under a lifetime medical award but was never issued an award of compensation. However, the defendant had initially made the faithful decision to make voluntary payment of equal wages for light-duty work to the Claimant. This kind of claim is considered to have standing under Code § 65.2-708(A) if “filed within 24 months from the last date compensation was paid pursuant to an award of compensation.” Lucinda filed her subsequent claim for temporary partial disability based on a change in condition, two years and twelve days after the award for medical benefits was formalized by the VWCC. The Commission in reviewing her claim, found Walker’s claim was barred by § 65.2-708 since the Commission’s award was not an “order of compensation” but “medical only.”

The COA, in reversing that decision, concluded that since Virginia Code § 65.2-708(C) “defines the voluntary payment of equal wages for light-duty work to be “compensation paid pursuant to an award of compensation,” and Walker’s claim was filed within two years of the last day she received qualifying [voluntary] wages, [The COA] disagree [with the Commission] and find her claim was timely.”

The COA does, however, make it clear that this interpretation of § 65.2-708(A) does not stand for all “medical only” awards being eligible for re-opening under this analysis. Instead, the COA states that § 65.2-708 grants the Commission the authority to review change-in-condition claims under a “medical only” award only where it is then followed by an employer paying wages that are expressly defined to constitute “compensation pursuant to an award for compensation” under § 65.2-708(C).

So bottom line: Claimants do not need to be under an award of compensation to start the clock from last date of “qualifying wages.” Any payments of equal wages (regardless of the type of award issued by the Commission) are made “pursuant to an award of compensation” under § 65.2-708(C). Providing only that the Claimant has some kind of award and has received some kind of compensation for wages, the Commission has, per this decision by the COA, the authority under § 65.2-708(A) to review a timely claim based upon change-in-circumstances.

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