Opinion
Record No. 0861-93-3
Decided: September 13, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
Philip B. Baker (Joseph A. Sanzone Associates, on briefs), for appellant.
J. Gorman Rosenberger, Jr. (Wilson, Garbee Rosenberger, on brief), for appellees.
Present: Judges Barrow, Coleman and Koontz
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Alma Dale Franklin (Franklin) appeals a March 31, 1993 decision of the Workers' Compensation Commission (commission) denying her claim for additional permanent partial disability benefits upon an application for a change in condition pursuant to Code Sections 65.2-503 and -708. Franklin contends the commission erred in finding that the three-year time limitations of Code Sec. 65.2-708 barred her claim for a change in condition. We disagree and affirm the commission's denial of Franklin's claim.
I. BACKGROUND
To better explain our holding, we present the facts of this case as a chronology of events with additional designated dates applicable to the parties' differing assertions on appeal.
November 6, 1987 Franklin is diagnosed as suffering carpal tunnel syndrome (CTS) in her right arm. (The parties and the commission treated this condition as an occupational disease. Code Sec. 65.2-400).
January 20, 1988 Lynchburg Foundry Company (Lynchburg Foundry), Franklin's employer, files first report of accident for CTS in Franklin's right arm.
June 9, 1988 Franklin is diagnosed as suffering CTS in her left arm.
July 6, 1988 Lynchburg files first report of accident for CTS in Franklin's left arm.
[November 6, 1989] [The two-year statute of limitation contained in Code Sec. 65.2-406(A) (5) for this occupational disease in the right arm runs. In addition, the general two-year statute of limitations in Code Sec. 65.2-601 runs.]
[June 9, 1990] [The above statutes of limitations run as to occupational disease in left arm.]
June 15, 1990 Franklin receives a rating of three percent loss of function in her right arm and five percent loss of function in her left arm.
June 27, 1990 Franklin files claim for permanent partial disability for both left and right arms pursuant to Code Sec. 65.1-56 (now Code Sec. 65.2-503).
September 13, 1990 Memorandum of Agreement filed providing benefits for left arm "beginning on the 10th day of June, 1988 . . . for 10 weeks payable [in] one sum."
November 1, 1990 Memorandum of Agreement filed providing benefits for right arm for six weeks "payable in one lump sum from and including the 6th day of November 1987."
November 19, 1990 The commission enters an award reflecting the November 1, 1990 agreement between the parties for compensation for the three percent loss of function in Franklin's right arm totaling six weeks of compensation beginning November 6, 1987 and paid in one lump sum.
[December 18, 1990] [Code Sec. 65.2-708 providing a thirty-six month time limitation for a change in condition review by the commission for a permanent partial disability claim under Code Sec. 65.2-503 for Franklin's right arm disability runs. (Lynchburg Foundry's assertion).]
December 28, 1990 The commission enters an award reflecting the parties' agreement of September 13, 1990 for compensation for a five percent loss of function in Franklin's left arm totaling ten weeks of compensation beginning June 9, 1988 and paid in one lump sum.
The awards entered by the commission on November 19, 1990 and December 28, 1990 both contain the parenthetical notation "(BENEFITS HAVING BEEN PAID, THIS AWARD IS FOR RECORD PURPOSES ONLY)." Addenda to these awards state that medical benefits in excess of five thousand four hundred eighty-nine dollars and fifty-seven cents were also paid on Franklin's behalf prior to entry of the awards.
[August 18, 1991] [The thirty-six month time limitation for a change in condition review by the commission concerning Franklin's left arm disability runs. (Lynchburg Foundry's assertion).]
October 19, 1992 Franklin receives increased ratings of loss of function totaling ten percent in her right arm and eight percent in her left arm.
November 4, 1992 Franklin notifies commission of her claims for change in condition seeking additional benefits under Code Sec. 65.2-503.
[June 15, 1993] [Earliest date for running of the thirty-six month time limitation for filing a change in condition claim for permanent disability in either arm based upon the June 15, 1990 disability rating. (Franklin's assertion).]
II. PROCEEDINGS BEFORE THE COMMISSION
A deputy commissioner reviewed and denied Franklin's November 4, 1992 claim for changes in condition to the permanent disability of each arm, finding that the claim was not timely filed. The deputy commissioner found that the initial awards entered in November and December, 1990, properly dated the payment of her permanent disability benefits from the dates of Franklin's initial diagnoses of November 6, 1987 and June 9, 1988, and that the three-year time period for filing a change of condition application for benefits payable under Code Sec. 65.2-503 had expired. See Code Sec. 65.2-708(A) (i).
Franklin appealed the deputy commissioner's finding on the ground that the awards entered by the commission in November and December, 1990 erroneously dated the payment of benefits from the date of her initial diagnoses on November 6, 1987 and June 9, 1988, respectively. Franklin sought to have the commission amend the awards to provide that the payments for her permanent partial disability began on the date she received her initial disability ratings on June 15, 1990.
More specifically, Franklin contends that the period for filing a claim for a change in condition to her permanent partial disability would begin ten and six weeks (the periods of her disability) following the June 15, 1990 rating date for her left and right arms, respectively. Accordingly, she contends that the three-year time period for filing a claim of change in condition would not have expired when she filed her claim on November 4, 1992.
Lynchburg Foundry defended on the ground that the commission's awards were consistent with the parties' memoranda of agreement and were properly dated from the original diagnoses dates because benefits payable for any injury resulting in permanent partial disability are properly made after the payments for temporary incapacity. Lynchburg Foundry asserted that where no temporary incapacity payments are made for an injury, it is proper to relate payments for permanent partial disability to the date of injury.
The commission approved the findings of the deputy commissioner, finding that "compensation was last paid pursuant to the Award Order on December 17, 1987 for the right carpal tunnel and on August 18, 1988 for [the] left carpal tunnel condition." In a concluding statement, the commission noted that "it appears that the Commission did not have jurisdiction to enter its initial award[s] . . . . Although . . . award[s were] enter[ed] as an accommodation to the parties, the Commission will not amend previously issued Orders, even if warranted, when our initial jurisdiction is lacking."
III. DATES FOR CHANGE IN CONDITION CLAIM FOR PERMANENT PARTIAL DISABILITY
Initially, we note that, although the commission in its March 31, 1993 decision held that it lacked jurisdiction to enter the November and December 1990 awards and, therefore, lacked jurisdiction to consider Franklin's subsequent applications for change in condition, the parties did not raise the jurisdictional issue before the commission or in this appeal. See Code Sections 65.2-403 (equating first communication of the diagnosis of occupational disease with the happening of an injury by accident); 65.2-406(A) (5) (providing a two-year limitation after a diagnosis of an occupational disease for filing a claim); 65.2-601 (requiring initial claims to be filed within two years after an accident). See also Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 678, 401 S.E.2d 213, 215 (1991) (holding that initial claims for Code Sec. 65.2-503 benefits are subject to the two-year Code Sec. 65.2-601 limitation where no other benefits have been claimed). We are unable to conclude from the record whether Franklin might not have been able to establish some basis for tolling the initial limitation period. However, because we affirm the commission on other grounds, we will assume, without deciding, that the commission had jurisdiction to enter the initial awards in 1990. Those awards were not appealed pursuant to Code Sec. 65.2-706 and, thus, became final. Thus, treating the validity of the initial awards as res judicata, we address the merits of the time limitations issue regarding the change in condition claims pursuant to the provisions of Code Sec. 65.2-708. See Code Sections 65.2-701 and -710 (establishing that orders entered pursuant to agreements of the parties have the same effect and enforceability as contested awards); K L Trucking Co. v. Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299, 302 (1985) (holding that principles of res judicata are applicable to proceedings before the commission); cf. Allen v. Mottley Constr. Co., 160 Va. 875, 886, 170 S.E. 412, 416 (1933) (holding that there can be no change in condition where there is no valid prior award).
Code Sec. 65.2-708 provides the statutory authority for the commission to review its prior award for a change in condition and establishes the parties' rights and obligations with regard to that proceeding. In pertinent part, this Code section provides as follows:
[U]pon the application of any party in interest, on the ground of a change in condition, the Commission may review any award and on such review may make an award ending, diminishing or increasing the compensation previously awarded . . . . No such review shall be made after . . . thirty-six months from the last day for which compensation was paid [which] shall be allowed for the filing of claims payable under Sec. 65.2-503. . . .
(emphasis added).
Franklin conceded on brief and during oral argument that the plain meaning of the phrase "from the last day for which compensation was paid" in Code Sec. 65.2-708 can only mean a date for which a compensation payment was to be applied rather than the date the payment was actually made. She contends, however, that the first communication to her of her doctor's diagnosis of a Code Sec. 65.2-503 permanent partial disability rating occurred on June 15, 1990 and her benefits were not awardable until that time. Thus, she further contends that "the last day for which compensation was paid" for her permanent partial disability must be calculated from the date of the rating of her disability and the corresponding number of weeks of benefits to which she was entitled to receive compensation. Accordingly, Franklin contends that the commission erred when it entered the November and December 1990 awards dating the payment for her permanent partial disability benefits from the date of her original diagnosis of CTS in 1987 and 1988 rather than from June 15, 1990. In the alternative, she also contends that the commission erred in declining to modify the dates of payment of compensation in those awards when it reviewed her change in condition application in 1993. We disagree.
We agree that the compensation provided by Code § 65.2-503 for permanent partial disability is not awardable until the employee's condition has reached a state of permanency as established by evidence that the condition has reached maximum improvement. See County of Spotsylvania v. Hart, 218 Va. 565, 568, 238 S.E.2d 813, 815 (1977).
Franklin's contention that the last day for which she received compensation for her initial permanent partial disability benefits was, or should have been, six to ten weeks after her disability rating on June 15, 1990, comports neither with the facts in the record nor the statutory scheme for filing a change in condition claim for Code Sec. 65.2-503 benefits contained in Code Sec. 65.2-708. The record reflects that following the June 15, 1990 communication of permanent partial disability ratings to her arms, Franklin filed her initial claim for Code Sec. 65.2-503 disability benefits on June 27, 1990. Thereafter, she voluntarily entered into memoranda of agreement with Lynchburg Foundry establishing benefits payable for her left arm disability beginning June 10, 1988 for ten weeks and for her right arm disability beginning November 6, 1987 for six weeks, both payable in one lump sum. The commission's awards of November 15 and December 28, 1990 accurately reflected the parties' agreement. Franklin did not challenge the dates adopted in those awards. Nothing in the record suggests fraud, imposition, or concealment on the part of Lynchburg Foundry or mistake by the parties in providing the dates in the agreements for which compensation was paid. Thus, the commission's awards established Franklin's entitlement to compensation, and those awards become as enforceable by either party as awards entered in a contested case. See J D Masonry, Inc. v. Kornegay, 224 Va. 292, 295, 295 S.E.2d 887, 889 (1982). See also National Linen Service v. McGuinn, 5 Va. App. 265, 271, 362 S.E.2d 187, 190 (1987).
Accordingly, the commission's awards reflecting the parties' agreements fixed Franklin's right to seek additional disability benefits upon a change in condition. Pursuant to these awards, the last day for which, rather than on which, compensation was paid was December 17, 1987 for Franklin's original right arm disability and August 18, 1988 for her left arm disability. Code Sec. 65.2-708 provided a period of thirty-six months from those dates within which Franklin could file change in condition claims for additional Code Sec. 65.2-503 benefits. Franklin, however, filed her change in condition claims on November 4, 1992, well beyond the time limitation contained in Code Sec. 65.2-708.
Finally, the commission's determinations in its March 31, 1993 decision are consistent with the statutory scheme for filing a change in condition claim for Code Sec. 65.2-503 permanent partial disability benefits authorized by Code Sec. 65.2-708. The latter Code section is premised upon the existence of a prior award establishing the compensability of an injury by accident or an occupational disease. For purposes of this appeal, the November and December 1990 awards were the awards subject to the commission's review upon Franklin's application for a change in condition filed on November 4, 1992. Upon review of those awards, Code Sec. 65.2-708(A) provided a time limitation of thirty-six months from the last day for which compensation was paid for Franklin to establish a change in condition. See Johnson v. Smith, 16 Va. App. 167, 170, 428 S.E.2d 508, 510 (1993).
Where no compensation has been paid, Code Sec. 65.2-708(B) provided a time limitation for such disability benefits to be awarded "within thirty-six months from the date of the accident[s]" on November 6, 1987 and June 9, 1988. Because compensation was paid, subsection (A) above provided the longest period of time within which Franklin was permitted to establish her change in condition for additional Code Sec. 65.2-503 benefits. The thirty-six months in that subsection began to run at a maximum ten weeks after June 10, 1988, the last day for which compensation was paid. Thus, the maximum time period provided by Code Sec. 65.2-708, on the facts of this case, expired on August 18, 1991. Consequently, neither the October 19, 1992 change in condition rating nor Franklin's November 4, 1992 application for a change in condition review by the commission occurred within the applicable time provisions of Code Sec. 65.2-708. Under these circumstances, the commission properly declined to alter the dates for which compensation was last paid as reflected in its original awards and properly determined that Franklin's change in condition application was not timely filed.
For these reasons, the order of the commission denying Franklin's claim for additional permanent partial disability benefits is affirmed.
Affirmed.