                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, Chafin and Senior Judge Annunziata
UNPUBLISHED


              Argued at Alexandria, Virginia


              TARGET CORPORATION AND SEDGWICK
               CLAIMS MANAGEMENT SERVICES
                                                                                 MEMORANDUM OPINION ∗ BY
              v.     Record No. 0576-12-4                                         JUDGE WILLIAM G. PETTY
                                                                                      JANUARY 8, 2013
              WILMA VELASQUEZ


                            FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                               Tenley Carroll Seli (Billy & Seli, P.C., on brief), for appellants.

                               Manuel R. Geraldo (Robinson & Geraldo, on brief), for appellee.


                     Target Corporation and Sedgwick Claims Management Services (hereinafter referred to

              collectively as “employer”) appeal a decision of the Workers’ Compensation Commission

              awarding claimant, Wilma Velasquez, permanent partial disability benefits for the five percent

              loss of use of her right leg. Employer argues that the commission lacked jurisdiction to award

              permanent partial disability benefits to Velasquez because she failed to perfect her claim by

              filing evidence of permanent impairment to a ratable member within the thirty-six month period

              prescribed by Code § 65.2-708(B). For the reasons expressed below, we disagree. Accordingly,

              we affirm the commission’s decision.

                                                                  I.

                     Because the parties are fully conversant with the record in this case and this

              memorandum opinion carries no precedential value, we recite below only those facts and



                     ∗
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of

this appeal. “On appeal from a decision of the Workers’ Compensation Commission, the

evidence and all reasonable inferences that may be drawn from that evidence are viewed in the

light most favorable to the party prevailing below.” Artis v. Ottenberg’s Bakers, Inc., 45

Va. App. 72, 83, 608 S.E.2d 512, 517 (2005) (en banc).

                                                II.

       Employer argues that under Code § 65.2-708(B), a claimant must not only file a claim for

permanent partial disability benefits, but must also provide evidence of permanent impairment,

within thirty-six months from the date of the accident. We disagree.

       Code § 65.2-708(A) provides that the commission may review and modify a previously

entered award if a claimant experiences a change in condition. It further provides:

               No such review shall be made after twenty-four months from the
               last day for which compensation was paid, pursuant to an award
               under this title, except: (i) thirty-six months from the last day for
               which compensation was paid shall be allowed for the filing of
               claims payable under § 65.2-503 [the section addressing permanent
               partial and permanent total loss and disfigurement] . . . .

Code § 65.2-708(A). Code § 65.2-708(B) then provides: “In those cases where no

compensation has been paid, the Commission may make an award under § 65.2-503 within

thirty-six months from the date of the accident.”

       Under Code § 65.2-708, a claimant must “assert, within the limitation period, the

existence of a claim growing out of a compensable injury by accident.” Hungerford Mech. Corp.

v. Hobson, 11 Va. App. 675, 678, 401 S.E.2d 213, 215 (1991) (construing what is now Code

§ 65.2-601). Of course, to receive an award under Code § 65.2-708(B), a claimant must also

prove that his disability existed within the thirty-six month limitation period as well. Cf. Sw. Va.

Tire, Inc. v. Bryant, 31 Va. App. 655, 660, 525 S.E.2d 563, 566 (2000) (noting that under Code



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§ 65.2-708(A), the change in condition must have occurred within the applicable limitation

period). Ultimately, “[i]n order to recover, [a claimant has] the burden of establishing by a

preponderance of the evidence the existence of a disability which was the consequence of the

injury by accident.” Hungerford Mech. Corp., 11 Va. App. at 678, 401 S.E.2d at 215.

        However, this Court has already rejected the contention that a claimant must provide

medical evidence establishing a permanent disability within the statutory limitation period.

Johnson v. Smith, 16 Va. App. 167, 428 S.E.2d 508 (1993) (construing Code § 65.2-708(A)). In

Johnson, the claimant was injured by a compensable accident on December 23, 1985, and

received payment of compensation for temporary total work incapacity from the date of the

accident until July 6, 1986. Id. at 168, 428 S.E.2d at 509. On February 17, 1989, within the

applicable thirty-six month limitation period under Code § 65.2-708(A), the claimant filed a

change-in-condition application seeking permanent partial disability payments for the loss of use

of his right hand. Id. However, the last time claimant had seen his doctor was on July 3, 1986,

at which time his doctor had released him to return to work the following week. Id. The

claimant did not visit his doctor again until July 30, 1991, over five years after his last visit to the

doctor and over two years after the applicable limitation period had expired. Id. The doctor did

not provide a disability rating for the claimant’s right hand until September 9, 1991. Id.

        The commission in Johnson “concluded that the permanent partial injury must be

established by evidence within the thirty-six month limitation period and that there was no such

evidence in this case.” Id. at 169, 428 S.E.2d at 509-10. This Court, however, reversed the

commission’s decision. This Court held that “the Hungerford interpretation of Code § 65.2-601

. . . also applies in this case to Code § 65.2-708 concerning the statute of limitations for review of




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an award on a change of condition.” Id. at 169, 428 S.E.2d at 510. As the Court had explained

in Hungerford:

                           “At the time [the claimant] filed his application for
                  benefits, he had suffered a compensable injury by accident. His
                  application plainly specified that he was seeking benefits for
                  permanent partial disability. This disability was present and
                  existing when the application was filed; therefore the application
                  did not anticipate a future disability and did give the employer
                  sufficient notice of the claim. [The claimant’s] filing, thus,
                  fulfilled the intent of the Act—that the injured employee assert,
                  within the limitation period, the existence of a claim growing out
                  of a compensable injury by accident. In order to recover, [the
                  claimant] had the burden of establishing by a preponderance of the
                  evidence the existence of a disability which was the consequence
                  of the injury by accident.”

Id. at 169-70, 428 S.E.2d at 510 (quoting Hungerford Mech. Corp., 11 Va. App. at 678, 401

S.E.2d at 215).

       The Court in Johnson noted that the uncontradicted evidence demonstrated that the

claimant did indeed have a permanent disability that existed at the time he filed his

change-in-condition application, within the thirty-six month limitation period. Id. at 170, 428

S.E.2d at 510. Importantly, the Court reasoned that despite the fact the claimant had not sought a

diagnosis from his doctor until after the limitation period had expired, “this fact [did] not

preclude a finding that a disability existed during the thirty-six month period.” Id. Thus, the

Court rejected the notion that evidence establishing a permanent disability must be presented

within the limitation period under Code § 65.2-708.

       Johnson establishes that as long as a claimant files an application or claim under Code

§ 65.2-708 within the applicable limitation period, evidence supporting that claim may be

presented after the limitation period has expired. The claimant simply has to prove that he has a

permanent disability that existed within the limitation period and that was caused by a




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compensable accident. See Sw. Va. Tire, Inc., 31 Va. App. at 660-61, 525 S.E.2d at 566 (“We

have . . . held that a claimant is not required by Code § 65.2-708(A) to produce the evidence

prior to the expiration of the twenty-four month limitation, so long as the application alleged that

a change in condition existed within the time of the filing.” (citing Johnson, 16 Va. App. at

169-70, 428 S.E.2d at 510; Hungerford Mech. Corp., 11 Va. App. at 678, 401 S.E.2d at 215));

Hungerford Mech. Corp., 11 Va. App. at 678, 401 S.E.2d at 215 (“The timely filing of evidence

in accordance with the commission’s rules and the facts established by that evidence are the

operative considerations in determining whether a claimant is entitled to compensation

benefits.”). Indeed, “[t]he notion that the date of a medical report or even a doctor’s examination

must be within [the] statutory period in order to prove the date of onset of disability is not

reasonable.” Sw. Va. Tire, Inc., 31 Va. App. at 661, 525 S.E.2d at 566.

       Here, Velasquez suffered an accident at work on October 6, 2004. She filed a claim for

benefits with the commission on September 6, 2005. In her claim, she indicated that she was

seeking compensation for permanent disability and payment of lifetime medical costs for her

injury. Upon employer’s agreement to pay Velasquez’s medical bills, the commission entered an

award for lifetime medical benefits. However, employer stated that it needed an evaluation of

Velasquez’s claimed permanent partial disability before it would agree to pay permanent partial

disability benefits. Velasquez continued intermittently seeing doctors regarding her right leg

until, on April 14, 2008, a specialist she had been seeing stated that she had reached maximum

medical improvement, rated her permanent partial disability in her right leg at five percent, and

affirmed that her condition was causally related to the injury she sustained on October 6, 2004.

       Thus, Velasquez filed a claim for permanent disability benefits well within the thirty-six

month time period prescribed by Code § 65.2-708(B). The fact that she did not obtain medical




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evidence supporting this claim until after the thirty-six month period had passed does not bar her

claim. Velasquez presented credible evidence before the commission establishing “the existence

of a disability which was the consequence of the injury by accident” and which “‘was present

and existing when the application was filed.’” Hungerford Mech. Corp., 11 Va. App. at 678, 401

S.E.2d at 215 (quoting Cont’l Forest Indus. v. Wallace, 1 Va. App. 72, 74, 334 S.E.2d 149, 150

(1985)). Her “filing . . . fulfilled the intent of [Code § 65.2-708]—that the injured employee

assert, within the limitation period, the existence of a claim growing out of a compensable injury

by accident.” Id.

       Therefore, we hold that the commission did not err in awarding permanent partial

disability benefits to Velasquez.

                                               III.

       For the foregoing reasons, we affirm the commission’s decision.

                                                                                         Affirmed.




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