Opinion
Record No. 1863-94-2
Decided: April 4, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
R. Ferrell Newman (Glenn S. Phelps; Thompson, Smithers, Newman Wade, on brief), for appellants.
No brief or argument for appellee.
Present: Judges Barrow, Koontz and Elder
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
B. E. K. Construction Company (employer) and St. Paul Fire and Marine Insurance Company appeal the commission's award of temporary total disability benefits in favor of Raymond Lee Stanley (claimant). Employer contends the commission erred (1) in giving retroactive effect to Code Sec. 65.2-602 (former Code Sec. 65.1-87.1); (2) in finding that employer's failure to file claimant's first report of accident tolled Code Sec. 65.2-601's two-year statute of limitations for filing a claim; and (3) in finding that claimant adequately marketed his residual work capacity. We hold that the commission erred in retroactively applying the version of Code Sec. 65.2-602 that existed at the time of the hearing, instead of applying the version in effect at the time of the accident. We therefore reverse the commission's decision.
Claimant, who worked as a pipe fitter for employer, sustained a work-related blow to the head and neck on October 16, 1989. Despite his accident, claimant returned to his regular duties the next day and continued his duties until he was terminated for cause on January 23, 1990.
Claimant, who knew he needed to file a claim with the Workers' Compensation Commission, retained an attorney in June of 1991, who failed to file the claim. The claim was eventually filed with the assistance of a second attorney on January 22, 1992, twenty-seven months after the work-related accident occurred. On March 4, 1992, employer filed its first report of accident with the commission.
The deputy commissioner conducted a hearing on July 6, 1992, and found that claimant's claim had not been filed within two years of the injury and was therefore time-barred pursuant to Code Sec. 65.2-601. The opinion stated that claimant had not been prejudiced by employer's failure to file its first report of accident, and despite the tolling language of Code Sec. 65.2-602, the claim was barred.
On January 26, 1993, the commission reversed the deputy commissioner noting that the claim was not time-barred because claimant's rights were prejudiced when the filing deadline had expired without his knowledge. The case was remanded to the deputy commissioner. Employer nonetheless appealed the statute of limitations issue to the Court of Appeals, which also remanded the case on October 28, 1993, holding that the decision was not a "final decision" under Code Sec. 17-116.05(2).
After a hearing on March 23, 1994, the deputy commissioner found that given the "particular circumstances," claimant had adequately marketed his residual capacity and found in claimant's favor. On September 20, 1994, the commission affirmed the deputy commissioner's decision to award claimant benefits.
First, we hold that the commission erred in retroactively applying the language added to Code Sec. 65.2-602 in July of 1991. In reaching this decision, we are guided by certain well-accepted principles governing the retroactivity of statutes. The presumption in Virginia is against the retroactive application of statutes. Code Sec. 1-16; Booth v. Booth, 7 Va. App. 22, 26, 371 S.E.2d 569, 572 (1988); Island Creek Coal Co. v. Breeding, 6 Va. App. 1, 10, 365 S.E.2d 782, 787 (1988) (stating that "[t]he right to compensation in cases of accidental injury is governed by the law in effect at the time of the injury."). "The intent of the General Assembly determines whether a statute will be applied [retroactively], but the general rule of statutory construction is that legislation only speaks prospectively. . . ." Id. at 26, 371 S.E.2d at 571-72.
These principles have been harmonized with the distinctions between substantive and procedural rights.
In [ Shiflet v. Eller, 228 Va. 115, 319 S.E.2d 750 (1984)], the Supreme Court stated that substantive rights are addressed in statutes which create duties, rights, or obligations. In contrast, the Court explained that procedural or remedial statutes merely set forth the methods of obtaining redress or enforcement of rights. . . . In order for [the statute] . . . to apply retroactively, therefore, it must be procedural in nature and affect remedy only, disturbing no substantive or vested rights. . . . The statute must also contain an expression of [retroactive] legislative intent.
Cohen v. Fairfax Hosp. Ass'n, 12 Va. App. 702, 705, 407 S.E.2d 329, 331 (1991) (citations omitted); Gaynor v. Hird, 11 Va. App. 588, 593, 400 S.E.2d 788, 790 (1991). Finally, we have stated that "[w]e can find no reason to exclude legislative enactments in the nature of statutes of limitations from the general principle that retroactive effect will not be given in the absence of clear, explicit and unequivocal intent to the contrary." Foster v. Smithfield Packing Co., 10 Va. App. 144, 148, 390 S.E.2d 511, 513 (1990) (citation omitted).
In this case, claimant was injured on October 16, 1989. Code Sec. 65.2-601's two-year statute of limitations to file a claim would have expired on October 16, 1991, three months before claimant actually filed his claim. However, Code Sec. 65.2-602 was amended effective July 1, 1991. This amendment expanded the protection afforded by the statute to include the tolling of the limitations period where the employer's first report of accident had not been filed. The commission afforded retroactive treatment of Code Sec. 65.2-602 for the purpose of preserving claimant's rights to file his claim. However, the July 1991 amendment was substantive, as it operated to create a right in claimant to have the statute tolled where employer failed to file the first report of accident pursuant to Code Sec. 65.2-900. Because the statute created a new substantive right through the use of amending language, the commission erred in applying amended Code Sec. 65.2-602.
Code § 65.2-602, with the amended language underlined, states, in pertinent part:
In any case where an employer has received notice of an accident resulting in compensable injury to an employee as required by § 65.2-600, and whether or not an award has been entered, such employer nevertheless has paid compensation or wages to such employee during incapacity from work as defined in § 65.2-500 or § 65.2-502, resulting from such injury or the employer has failed to file the report of said accident with the Virginia Workers' Compensation Commission as required by § 65.2-900, and such conduct of the employer has operated to prejudice the rights of such employee with respect to the filing of a claim prior to expiration of a statute of limitations otherwise applicable, such statute shall be tolled for the duration of such payment or, as the case may be, until the employer files the first report of accident required by § 65.2-900. . . .
Because we hold that the commission erred in retroactively applying Code Sec. 65.2-602, we need not address the other issues raised. For these reasons, we reverse the commission's award in favor of claimant.
Reversed.