                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata
Argued by teleconference


DONALD R. WELLS
                                                OPINION BY
v.   Record No. 0848-99-1               JUDGE ROSEMARIE ANNUNZIATA
                                               JULY 3, 2001
CHESAPEAKE REDEVELOPMENT & HOUSING AUTHORITY
 AND INSURANCE COMPANY OF NORTH AMERICA


           ON REMAND FROM THE SUPREME COURT OF VIRGINIA

        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Karen M. Rye (Kenneth J. Coughlan; Law Office
          of Karen M. Rye, on brief), for appellant.

          James G. Muncie, Jr. (Ingrid E. Olson; Law
          Offices of Harold A. MacLaughlin, on brief),
          for appellees.


     In this worker's compensation case, we held that the

timeliness of appellant's claim for temporary partial disability

benefits was barred by the principle of res judicata because the

appellant, Donald R. Wells, did not appeal the decision of the

Workers' Compensation Commission with regard to that issue.

Wells v. Chesapeake Redevelopment & Hous. Auth., Record No.

0848-99-1 (Va. Ct. App. Jan. 11, 2000).   Wells appealed our

ruling to the Virginia Supreme Court, which reversed our

judgment and ruled that we erred in failing to consider the

merits of Wells's claim.   The Supreme Court remanded the case to

this Court for consideration of the question presented on its
merits.    We now hold that Wells's claim for temporary partial

disability benefits was timely filed under Code § 65.2-708 and

that the full commission erred in failing to remand the claim

for consideration on its merits.    Accordingly, we reverse the

portion of the commission's decision that found Wells's claim

for temporary partial disability benefits was time-barred and

remand the claim to the commission for determination on its

merits.

                              BACKGROUND

        Wells sustained a compensable injury to his right elbow/arm

on December 6, 1989.    He had been employed as a maintenance

mechanic by the Chesapeake Redevelopment & Housing Authority

("Chesapeake") for approximately six years when the accident

occurred.    Following the accident, Chesapeake accepted the claim

as compensable, and the Workers' Compensation Commission entered

an award for temporary total disability benefits beginning

December 6, 1989.    The award for temporary total disability

benefits was terminated on July 3, 1990, when Wells returned to

work.

        The full commission found that Wells did "selective work"

for Chesapeake from July 3, 1990 until May 10, 1991, returned to

work in June 1991, and stayed until he had surgery in July 1993.

Wells did not return to work after his July 1993 surgery and was

terminated on December 3, 1993.



                                 - 2 -
     The first claim in this matter was filed by Wells's prior

counsel on August 16, 1993, alleging that Wells had become

totally disabled as of July 21, 1993.   Four days later, the

commission sent a letter to counsel notifying her that the claim

had been rejected because it was time-barred.   On January 27,

1994, Wells's current counsel sent a letter to the commission

requesting "all workers' compensation benefits to which he may

be entitled," specifically, those falling under a change of

condition and permanency.

     On March 4, 1994, the commission sent a letter to counsel

indicating that it was rejecting the claim for the same reasons

that the August 16, 1993 claim was rejected.    Wells responded to

the commission on March 10, 1994 by sending an amendment that

indicated he intended to rely on Code §§ 65.2-520 and

65.2-708(C) to argue that the claim was not barred by the

statute of limitations. 1


     1
         Code § 65.2-520 provides:

            Voluntary payment by employer. Any payments
            made by the employer to the injured employee
            during the period of his disability, or to
            his dependents, which by the terms of this
            title were not due and payable when made,
            may, subject to the approval of the
            Commission, be deducted from the amount to
            be paid as compensation . . . .

Code § 65.2-708(C) provides:

            All wages paid, for a period not exceeding
            twenty-four consecutive months, to an
            employee (i) who is physically unable to

                                - 3 -
     On August 23, 1994, Wells sent the commission a medical

report from Dr. Thomas Bergfield, dated December 9, 1993, to

support his January 27, 1994 claim for permanency benefits.    At

the same time, Wells amended his change of condition claim to

include temporary total disability from July 20, 1993 and

continuing.   On June 10, 1996, Wells once more amended his

change of condition claim to include temporary partial

disability benefits from May 31, 1994 and continuing.

     On February 26, 1997, an evidentiary hearing was held

before the deputy commissioner, who found that the last date for

which Wells had received benefits was July 2, 1990.

Accordingly, the deputy commissioner held that all three claims

in the application were time-barred.

     The decision was appealed to the full commission, which

found, in an opinion dated March 10, 1999, that, under Code

§ 65.2-708(A), Wells had two years from May 10, 1991, the date

of last compensation under Wells's initial award, to file an

application for a change in condition based on his alleged

temporary total and temporary partial disability. 2   Because Wells


          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.
     2
       The commission premised its conclusion, in part, on Code
§ 65.2-708(C), finding that the provision extended the statute
of limitations during the time Wells was working a selective
employment position and receiving full wages, from July 3, 1990

                               - 4 -
filed both claims after May 10, 1993, the full commission

affirmed the deputy commissioner's decision that the claims for

temporary total and temporary partial disability were

time-barred.   However, the commission found that Wells had three

years from May 10, 1991, under Code § 65.2-708(A), to file a

change of condition application based on his alleged permanent

partial disability.   The commission found that the August 24,

1994 amendment requesting permanent partial disability benefits

related back to Wells's January 27, 1994 change of condition

application.   Because the January 27, 1994 application was filed

before May 10, 1994, the full commission reversed the deputy

commissioner's finding that Wells's claim for permanent partial

disability benefits was time-barred and remanded the case for a

decision on that issue.

     Wells appealed the full commission's decision to this

Court, contending that the commission erred in not also

remanding his claim for temporary partial disability benefits

for consideration by the deputy commissioner.

                             ANALYSIS

     Wells contends that when the commission determined that his

permanency claim was not time-barred and remanded the claim to

the deputy commissioner for consideration on its merits, the



until May 10, 1991. Beginning May 11, 1991, Wells was totally
disabled and, therefore, no longer "consecutively" working in
selective employment.

                               - 5 -
commission should also have remanded Wells's claim for temporary

partial disability (TPD) benefits.      We agree that the commission

erred in not remanding Wells's claim for TPD benefits.

     Under Code § 65.2-708(A), the period during which a

temporary partial disability claim based on a change of

condition must be filed commences with the last day compensation

is paid pursuant to an award for benefits.     Code § 65.2-708(A)

provides:

            Upon its own motion or upon 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 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 [which authorizes an award
            for permanent disability benefits]. . . .

     When the commission remanded the permanency claim, the

status of the claim, before it was erroneously dismissed by the

deputy commissioner, was restored.      Thus, the period of time

during which any change of condition claim could be filed was

necessarily reinstated, conditioned only upon the receipt of an

award for permanent benefits.    See Code § 65.2-708(A).    Any

claim based on a change of condition which arose after the

period for which permanent benefits were awarded, but within the

new limitations period, would, therefore, not be time-barred.

                                - 6 -
     Wells's claim for permanent partial disability benefits

arose on December 9, 1993, the date of a report filed by Wells's

treating physician, Dr. Bergfield, in which he determined that

Wells had suffered a permanent 26% impairment of his right arm.

His claim based on permanency was filed on January 27, 1994.     On

remand, the deputy commissioner found Wells had established his

claim for permanent partial disability benefits, based on Dr.

Bergfield's report. 3   The deputy commissioner awarded Wells

permanent disability benefits for a period beginning December 9,

1993, and continuing for 52 weeks, to December 8, 1994. 4

     Under Code § 65.2-708(A), Wells had two years from

December 8, 1994, until December 8, 1996, within which to file a

new claim based on a change in condition.    Wells's claim for

temporary partial disability benefits based on a change of

condition arose on May 31, 1994, after his claim for permanency

benefits.   He filed his claim for TPD benefits on June 10, 1996.

This claim, therefore, was timely.

     We find no merit in Chesapeake's contention that remanding

Wells's claim TPD benefits would constitute an improper




     3
       The deputy commissioner also found that despite further
medical treatment, as of July 25, 1994, Well's disability rating
had not changed.
     4
       The date the award was made, March 30, 1999, is not
relevant to the analysis. The only relevant date is the last
date for which compensation was due. Code § 65.2-708(A).


                                - 7 -
"revival" of a time-barred claim.   In advancing this contention,

Chesapeake relies on the finding by the commission that the

claim was time-barred.   However, the commission's decision

improperly related the claim for TPD to Wells's initial award

made in 1991 and failed to consider that the TPD claim arose, in

fact, subsequent to Wells's claim for permanent disability

benefits.   Viewed from the perspective of the status quo ante,

but for the erroneous dismissal of the permanency claim by the

deputy commissioner, and the failure to properly relate the TPD

claim to the claim for permanency disability benefits, the claim

for TPD would have retained viability before the deputy

commissioner.

     In sum, because we find the commission erred in finding

Wells's claim for temporary partial disability benefits to be

time-barred, we reverse that portion of the commission's

decision and remand Wells's claim for TPD benefits based on a

change in condition to the commission for determination on its

merits.

                                         Reversed and remanded.




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