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Morris v. Federal Express Corp.

Court of Appeals of Virginia

July 16, 2019



          Michael L. Ritchie (Ritchie Law Firm, P.L.C., on briefs), for appellant.

          Nirav Patel (Franklin & Prokopik, P.C., on brief), for appellee.

          Present: Judges Chafin, Russell and Senior Judge Clements.



         Appellant Marcia Morris, claimant, appeals a decision of the Virginia Workers' Compensation Commission finding that her November 2017 change in condition application for additional wage benefits stemming from a July 2015 accident was barred by the applicable statute of limitations. For the reasons that follow, we conclude that her application for additional wage benefits was time barred and affirm the judgment of the Commission.


         When reviewing an appeal from the Commission, we consider the evidence in the light most favorable to the prevailing party below. Layne v. Crist Elec. Contractor, Inc., 64 Va.App. 342, 345 (2015). Accordingly, we view the evidence in the light most favorable to claimant's employer, Federal Express, and grant it all "reasonable inferences that may be drawn from" such a view of the evidence. Artis v. Ottenberg's Bakers, Inc., 45 Va.App. 72, 83 (2005).

         Claimant is employed by Federal Express as a courier. On July 29, 2015, she was injured at work when a package fell on her, causing her to then fall out of the delivery truck onto the ground. She filed a claim for workers' compensation benefits on August 7, 2015, claiming an injury to her "head, shoulder, hip, ribs, [and] face." On August 17, 2015, she filed another claim relating to the same accident, alleging she suffered "head trauma, fractured ribs, [and] contusion/abrasions [to her] left arm [and] hip." Both claims were made using Commission forms and the portion related to benefits requested was left blank.

         On February 25, 2016, claimant and employer entered into an award agreement by which employer accepted as compensable claimant's "[h]ead [t]rauma and [r]ib fracture." With respect to temporary total disability benefits, the agreement provided for an initial open award beginning July 30, 2015, but the parties also agreed that claimant had returned to work on October 7, 2015, so that her wage loss compensation would be terminated. On March 1, 2016, the Commission entered an award order approving the parties' agreement; the order directed that claimant, based on her July 29, 2015 accident, receive wage benefits for the period from July 30, 2015 to October 6, 2015, and lifetime medical benefits for her "head trauma and rib fracture."

         After claimant had returned to work, she was involved in another, unrelated compensable accident and suffered a resultant injury. In December 2016, she fractured her right little finger and was again unable to return to work. For this accident, the Commission entered an agreed award granting temporary total disability benefits beginning December 27, 2016.[1]

         While still receiving wage benefits pursuant to the award for the December 2016 accident, claimant filed a July 19, 2017 letter with the Commission. Expressly referencing the prior grant of "Lifetime Medical" benefits related to the 2015 accident, claimant requested that the Commission amend its March 1, 2016 order related to that accident to substitute the phrase "traumatic brain injury" for "head trauma." Claimant stated that the change should be made "[f]or the sake of clarity" and did not indicate that such a change would affect either party's substantive rights or obligations. Nothing in the letter suggested that claimant was asserting a new claim of any kind. Nowhere in the letter did claimant assert she was entitled to additional wage/disability benefits; in fact, the letter contains no express reference to such benefits.

         On November 7, 2017, claimant filed an application (hereinafter "November 2017 application" or "November 2017 change in condition application") for additional wage benefits related to the July 2015 accident.[2] Using a Commission form, she requested ongoing compensation for work missed beginning June 20, 2017, because of the "[t]raumatic [b]rain [i]njury" she alleged to have sustained in the 2015 accident. Attached to the claim form and serving as the basis of her request for wage benefits were medical records from doctor visits that occurred in June, July, and August 2017.[3]

         The parties entered a joint stipulation whereby they agreed that the March 2016 award order be amended to allow for lifetime medical benefits for claimant's "subdural hematoma, subarachnoid hemorrhage, [and] temporal epidural hematoma[.]" The stipulation did not provide for any new wage benefits; rather the parties agreed "[t]hat the issue of claimant's entitlement to [new wage benefits] may be resolved with an [o]n the [r]ecord decision and that the respective position statements will be submitted within two weeks of the entry of [the stipulation]." The Commission approved the joint stipulation on April 24, 2018, and the parties filed their position statements.

         Employer defended the November 2017 application for additional wage benefits arising from claimant's July 2015 accident on statute of limitations grounds. Employer argued that, pursuant to Code § 65.2-708(A), claimant had until October 6, 2017, two years after the date for which she last received compensation for the July 2015 accident, to file a change in condition application and had failed to do so. In response, claimant contended that, because she had suffered multiple injuries with the same employer, Code § 65.2-506 also applied. Claimant noted that "[t]here is no specific rule on how payment for a change in condition under Virginia Code § 65.2-708 would be affected by multiple injuries under Va. Code § 65.2-506[; n]either code section specifically addresses how a change in condition application from an earlier injury is affected by a subsequent injury." Claimant then suggested that, because she was receiving compensation for her December 2016 accident, "the time limit in Va. Code § 65.2-708 is tolled until that payment is terminated or exhausted." In the alternative, claimant asserted that, in the event Code § 65.2-506 did not operate to toll Code § 65.2-708(A), "the Commission must determine if [her] claim for a change in condition is timely filed." Claimant acknowledged that her November 2017 filings "fell outside" the period set forth by Code § 65.2-708(A), but nonetheless argued that they related back to earlier filings that had been made before the expiration of the applicable statute of limitations.

         The deputy commissioner concluded that the November 2017 application was time barred by Code § 65.2-708(A) and denied the request for additional wage benefits. Claimant sought full Commission review. Before the Commission, claimant argued that the deputy commissioner erred in applying Code § 65.2-708(A) to her "motion to amend to conform the pleadings to the facts already admitted into evidence" because the application did not assert a new claim. In addition, claimant again argued that the applicable period of limitations had been tolled.

         In a December 19, 2018 opinion written by Commissioner Marshall, the Commission unanimously affirmed the decision of the deputy commissioner. The Commission concluded that claimant's November 2017 application for wage benefits did not relate back to her July 19, 2017 request to modify the description of the injuries she had suffered in the 2015 accident. The Commission further determined that Code § 65.2-506 did "not address the circumstances presented by [claimant's] case[, ]" and thus, did not toll the statute of limitations found in Code § 65.2-708(A).

         Claimant now appeals to this Court arguing that the Commission erred in concluding that her claim was barred by ...

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