                    COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Bumgardner and Senior Judge Hodges
Argued at Alexandria, Virginia


DANIEL W. PHELPS
                                          MEMORANDUM OPINION *
v.   Record No. 1246-98-4             BY JUDGE WILLIAM H. HODGES
                                          FEBRUARY 16, 1999
SAFEWAY STORES, INC.


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           Metin A. Cay (Swiger & Cay, on brief), for
           appellant.

           C. Ervin Reid (Wright, Robinson, Osthimer &
           Tatum, on brief), for appellee.


     Daniel W. Phelps ("claimant") appeals a decision of the

Workers' Compensation Commission ("commission") denying his

application for temporary total disability benefits.     Claimant

contends that the commission erred in finding that his

change-in-condition application was time barred by Code

§ 65.2-708(A) because he failed to meet the tolling requirements

of Code § 65.2-708(C).   Pursuant to Rule 5A:21(b), Safeway

Stores, Inc. ("employer") raises the additional question of

whether the commission erred in finding that the one-year

limitation period found in Code § 65.2-501 did not bar claimant's

change-in-condition application filed nearly three years after

receiving permanent partial disability benefits.   Finding no

error, we affirm the commission's decision.


     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
     The facts are not in dispute.     On November 14, 1988,

claimant sustained a compensable injury by accident while working

for employer.   Employer accepted the claim and paid claimant

temporary total disability benefits from December 6 through

December 18, 1988, and from December 27, 1988 through November 4,

1990, pursuant to the commission's awards.    Employer also paid

claimant temporary partial disability benefits pursuant to an

award from November 5, 1990 through April 7, 1991.    The

commission terminated that award after claimant returned to

light-duty work on April 7, 1991, at a wage equal to or greater

than his pre-injury wage.

     On September 15, 1993, claimant filed an application for an

award of permanent partial disability benefits.    The commission

awarded those benefits and claimant received permanent partial

disability benefits from February 14, 1994 through June 5, 1994.

     Beginning on April 7, 1991, claimant worked for employer in

a light-duty position at a wage equal to or greater than his

pre-injury wage.   Claimant remained in that position until his

treating physician removed him from work on April 18, 1997.     On

May 12, 1997, claimant returned to his light-duty position and

did not sustain any wage loss thereafter.
     On May 15, 1997, claimant filed an application alleging a

change-in-condition.   Claimant sought temporary total disability

benefits for the period from April 18, 1997 through May 12, 1997,

alleging that his disability had deteriorated from temporary

partial incapacity to temporary total incapacity.



                               - 2 -
     The commission ruled that the claim, which was governed by

the two-year statute of limitations found in Code § 65.2-708, was

not timely filed.   In rejecting claimant's argument that Code

§ 65.2-708(C) tolled the two-year statute of limitations for

twenty-four months beginning on June 5, 1994, the commission

found as follows:

               The General Assembly enacted this Code
          section to provide an extended limitation
          period when an injured worker returns to work
          at a wage rate equal to or greater than
          pre-injury wage and when disability renders
          the injured worker unable to return to
          pre-injury work. Under this section, the
          wages paid to the claimant for twenty-four
          consecutive months after his return to
          light-duty at his pre-injury wage are
          considered compensation.

          *         *     *      *      *      *       *

               By its terms, § 65.2-708(C) applies to
          the twenty-four consecutive months after a
          claimant returns to light-duty work without a
          wage loss. Here, the twenty-four months
          began on April 7, 1991, and ended on April 7,
          1993. The claimant received the benefit of
          this section when he was awarded permanent
          partial benefits beginning February 14, 1994.
          Without the extension in § 65.2-708(C), that
          claim would have been time-barred. 1

               The claimant argues that the twenty-four
          month extension began on June 5, 1994, the
          last day for which he was paid compensation
          under his award for permanent partial
          incapacity. This argument is contrary to the
     1
      The commission erred when it concluded that claimant's
September 15, 1993 claim for permanent partial disability
benefits would have been time-barred without the application of
the tolling provision found in Code § 65.2-708(C). However,
because that conclusion was dicta and was not relevant to the
issue before the commission, we find that the error has no
bearing upon the issue before this Court.




                               - 3 -
          language in § 65.2-708(C) which triggers the
          start of the twenty-four month extension to
          the date the claimant is provided light duty
          work.

     The commission's construction of the Act is entitled to

great weight on appeal.   See City of Waynesboro v. Harter, 1 Va.

App. 265, 269, 337 S.E.2d 901, 903 (1985).

               "The right to compensation under the
          workmen's compensation law is granted by
          statute, and in giving the right the
          legislature had full power to prescribe the
          time and manner of its exercise. When the
          legislature has spoken plainly it is not the
          function of the courts to change or amend its
          enactments under the guise of construing
          them. The province of construction lies
          wholly within the domain of ambiguity, and
          that which is plain needs no interpretation."

Dan River, Inc. v. Adkins, 3 Va. App. 320, 328, 349 S.E.2d 667,

671 (1986) (quoting Winston v. City of Richmond, 196 Va. 403,

407-08, 83 S.E.2d 728, 731 (1954)).

     Code § 65.2-708, which governs the filing of

change-in-condition applications, requires that the application

be filed within twenty-four months from the last date for which

compensation was paid pursuant to an award.   Code § 65.2-708(C)

provides the following tolling provision:

               All wages paid, for a period not
          exceeding twenty-four 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.




                               - 4 -
This tolling provision was designed

           to prevent employers from lulling partially
           disabled workers into a false sense of
           security during this two-year period by
           providing employees light duty work at their
           pre-injury wage for two years and then
           terminating the employee without liability
           for future disability benefits.

Scott v. Scott, 16 Va. App. 815, 819, 433 S.E.2d 259, 262 (1993)

(construing former Code § 65.1-55.1, now Code § 65.2-708(C)).

Thus, a partially disabled employee who meets the conditions

outlined in parts (i) and (ii) "is afforded an additional

twenty-four months before the statute of limitations . . . begins

to run."   Greene v. Gwaltney of Smithfield, Inc., 13 Va. App.

486, 492, 413 S.E.2d 650, 654 (1992) (construing former Code

§§ 65.1-55.1 and 65.1-99, now Code § 65.2-708(A) and (C)).

     Claimant did not file his May 15, 1997 change-in-condition

application within twenty-four months from June 5, 1994, the last

date for which compensation was paid pursuant to an award.

Therefore, unless the tolling provision applied to extend the

limitations period beyond May 15, 1997, claimant's application

was untimely.

     Code § 65.2-708(C) delayed the start of the two-year

limitations period contained in Code § 65.2-708(A) while employer

provided claimant light-duty work and paid him equal to or more

than his pre-injury wage for a period not exceeding twenty-four

consecutive months.   The plain and unambiguous language of this

code section tolled the limitations period from April 7, 1991,

the date claimant returned to light-duty work provided by



                               - 5 -
employer at a wage equal to or greater than his pre-injury wage,

through April 7, 1993, twenty-four consecutive months later.

Thus, the tolling period expired before claimant filed his May

15, 1997 change-in-condition application.

     We find no support in the plain language of Code

§ 65.2-708(C) or the case law for claimant's assertion that the

commission erred in refusing to find that the twenty-four month

tolling period began to run on June 5, 1994, the date claimant

was last paid permanent partial disability benefits.

Additionally, the policy behind Code § 65.2-708(C) does not

support claimant's argument.   Claimant presented no evidence that

he was lulled into a false sense of security by employer, and

employer did not attempt to terminate claimant.   Rather, employer

has provided claimant with light-duty employment at a wage equal

to or greater than claimant's pre-injury wage for a period in

excess of six years.

     We hold that the commission did not err in finding that

claimant's May 15, 1997 change-in-condition application was

time-barred pursuant to Code § 65.2-708(A) and that his claim was

not saved by the tolling provision provided in Code
§ 65.2-708(C).   Because our holding on this issue is dispositive

of this appeal, we need not address the additional question

presented by employer.

     For these reasons, we affirm the commission's decision.

                                                        Affirmed.




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