Va. Code Ann. § 65.2-708 generally bars an injured worker from seeking compensation benefits, that is, lost wages, if a claim is not filed within 24 months of the date where compensation was last paid pursuant to an order under the Va. Workers’ Compensation Act (permanent loss and extraordinary equitable circumstances exempted). While this bar is not jurisdictional and can be waived, see Diaz v. Wilderness Resort Ass'n & Liberty Mut. Ins. Co., 56 Va. App. 104, 116, (2010), it is not uncommon for employers, insurers, and defense counsel to carefully track the date 24 months from the termination of a claimant’s wage benefits. What used to be a popular trick with claimant’s attorneys was to send their client for a follow-up appointment with the treating physician every 18 months or so, and file a related claim for benefits. The hope and theory were to keep this statutory period from running out and essentially ending a claimant’s entitlement to wage benefits by resetting the 24 month clock. Perhaps the best example of this was in Hitchcock v. Chesapeake Bagel Bakery, VWC File No. 192-32-27 (January 24, 2007) where the claimant was injured in 1998 working in the retail food industry, remained on wage benefits until October 2003, and returned to the treating doctor in September 2005, one month before she would have lost entitlement to wage benefits. Worse, the claimant’s complaints to the doctor in that appointment were purely subjective – pain, but no swelling, and good range of motion – and the claimant at this point was a paralegal earning “far more than her average weekly wage at the time of the injury.” The claimant did not work the day of the appointment. She opted to not work the next day (there is no indication this was medical leave, ie. “the claimant credibly testified that she told [her doctor] that she was taking the next day off to rest, and that his note supported that choice”). Still, the claimant sought one day of temporary total disability benefits (“TTD”), a total windfall to her, with the added benefit of keeping her ability to receive wage benefits alive. Citing cases holding that it is loss of earning capacity, rather than loss of wages, that was being compensated, the Commission awarded one day of TTD, thereby tolling the statute for another 2 years.

Recent cases suggest a shift away from this reasoning, however. In last month’s opinion in Pettway v. Courtyard by Marriott, JCN VA00001207914 (December 27, 2017) the claimant sought temporary partial disability benefits (“TPD”) for periods of time spent in physical therapy appointments twice a week, but was working for another employer and working fewer hours in order to do less strenuous work closer to home. The Commission in Pettway found, over a dissent and despite an orthopedist’s note that the claimant would need to be “absent” from work on days of physical therapy, that the claimant failed to prove that she “would have earned more had she not been attending physical therapy.” Notably, this did not involve the 24 month limitations period, and the claimant had admittedly changed jobs to result in lower hours and wages independent of her injury or treatment, but the logic used by the Commission appears to signal a shift away from accepting the reasoning given by the claimant in favor of an actual analysis of the circumstances of the alleged lost work time. The underlying rule is that stated in the oft-maligned, not always followed opinion of Brightwell v. City of Richmond Police, VWC File No. 190-41-06 (Sept. 30, 2004) – in fact, Pettway did not even cite Brightwell. The claimant in Brightwell had last received benefits for heart disease while a police officer in December 2001. In April 2003 he sought TTD for one day on which he had an echocardiogram. Notably, “He sought this award for record purposes only because he was paid..., but his sick leave was deducted.” Referring to prior cases, the Commission distilled the rule to “a claimant, who schedules a required medical appointment on a workday or during work time, may receive temporary total or partial benefits if it is shown that the medical condition required the appointment during work hours, if scheduling the appointment at a non-work time would interfere with obtaining favorable work assignments, or if scheduling the appointment on a non-work time would cause substantial hardship.” (Emphasis added.) The Commission thus remanded for further findings in an evidentiary hearing. This was not the end of the Brightwell matter, however, as in Brightwell v. City of Richmond Police Dep't, 2007 Va. App. LEXIS 122 (Va. Ct. App. 2007) the Court of Appeals considered both the April 2004 appointment and another appointment in June 2004. Finding that neither appointment showed a “change in condition” as required by § 65.2-708, the Court found both time barred under the separate one year limitation following an award of permanent partial disability benefits, Va. Code § 65.2-501.

While a salaried claimant might easily meet the Brightwell non- economic standard, it is not clear whether any salaried employee could prove that they would have “earned more had she not been attending” medical appointments as required in Pettway, as salary would not change regardless of the days missed from work. Regardless, the apparent willingness of a majority of the Commission to look more closely at wage loss claims for medical appointments heavily underscores best practices for employers and insurers in the workers’ compensation context. It is not enough to simply “be flexible” with a worker under restrictions for a work injury. Instead, the employer and insurer need to be actively monitoring, scheduling work to allow appointments during work hours without reducing the claimant’s clocked time, and confirming with medical records whether the appointment was substantive and showed a change in circumstances, or merely follow- up. What hangs in the balance could literally be whatever remains of 500 weeks of wage compensation. If you have any questions about the information in this article, please contact Steve Setliff at (804) 377-1261.