COURT OF APPEALS OF VIRGINIA 

 

Present: Chief Judge Felton, Judge McClanahan and Senior Judge Coleman 

Argued at Salem, Virginia 

AUGUSTA COUNTY SCHOOL BOARD AND 

 SEDGWICK CMS, INC. 

 OPINION BY 

v. Record No. 0940-08-3 JUDGE ELIZABETH A. McCLANAHAN 

 FEBRUARY 10, 2009 

CAROL A. HUMPHREYS 

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION 

J. David Griffin (Winchester Law Group, P.C., on brief), for 

appellants. 

George L. Townsend (The Chandler Law Group, on brief), for 

appellee. 

The Augusta County School Board and its insurer (collectively, the “school board”) 

appeal a decision of the Workers’ Compensation Commission awarding temporary total 

disability benefits to claimant, Carol A. Humphreys, on her change-in-condition application. 

The school board argues the commission erred in rejecting the school board’s statute of 

limitations defense. For the following reasons, we affirm the decision of the commission. 

BACKGROUND 

On March 12, 2003, Humphreys, a teacher for the school board, was injured at work 

when a table fell on her leg, causing an abrasion. The injury developed into an ulceration. 

Humphreys missed a total of nine and a half days of work for related medical appointments. 

Subsequently, she filed a workers’ compensation claim seeking indemnification for lost wages 

and medical benefits. The parties stipulated to the compensability of her injury and medical 

treatment (excluding pain management). However, among its defenses, the school board 
- 2 -

 

asserted Humphreys suffered no actual wage loss because she took sick leave for the nine and a 

half days of work she missed for her medical appointments, and received full pay for each of 

those days. 

In his May 17, 2005 opinion, the deputy commissioner found, inter alia, that Humphreys 

did not lose any actual wages, but lost sick leave due to her injury. He then awarded her 

“reimbursement of sick leave used to date for medical appointments related to her industrial 

accident,” and medical benefits “for as long as necessary.” 

The school board appealed to the full commission that portion of the deputy 

commissioner’s opinion awarding reimbursement of sick leave, asserting the commission had no 

jurisdiction to make such an award. While the appeal was pending, the parties agreed to a 

settlement entered in the form of a stipulated order by the deputy commissioner on August 22, 

2005, which modified his May 17, 2005 award and ended the appeal. The parties stipulated in 

the order as follows: 

1. The [e]mployer’s appeal is withdrawn. 

2. The May 17, 2005 [o]rder of the [d]eputy [c]ommissioner is 

modified as follows: 

a. The parties agree that the [c]laimant has not exhausted the 

waiting period for payment of indemnity of the first seven days, 

and therefore those days are not yet payable.[1] In the event they 

do become payable, the parties agree to re-instate sick time at a 

rate of .75 days in exchange for each day payable, but only in 

multiples of one. 

1

 This is consistent with Code § 65.2-509’s waiting period, which provides: 

No compensation shall be allowed for the first seven calendar days 

of incapacity resulting from an injury except the [medical] benefits 

provided for in § 65.2-603; but if incapacity extends beyond that period, 

compensation shall commence with the eighth day of disability. If, 

however, such incapacity shall continue for a period of more than three 

weeks, then compensation shall be allowed from the first day of such 

incapacity. 
- 3 -

 

b. For the remaining days lost, the parties agree that the 

[e]mployer shall only be responsible for the reinstatement of two 

days sick time. 

It is undisputed that the parties “abided by this agreement.” 

On March 1, 2006, Humphreys filed an application for benefits based on a change in 

condition. She sought an award of temporary total disability benefits for work missed on 

February 8, 2006 to attend a medical appointment related to her original compensable injury. 

She later amended the application to include six additional days of missed work due to medical 

appointments. In defending the claim, the school board contended, inter alia, that the claim was 

barred by the two-year statute of limitations for change-in-condition applications, as set forth in 

Code § 65.2-708.2 The deputy commissioner rejected the school board’s defenses and awarded 

payment of compensation to Humphreys for the seven days at issue (within a time frame of 

February 2006 to May 2006). 

The school board appealed the decision to the full commission, continuing to argue 

Humphreys’ change-in-condition application was time-barred under Code § 65.2-708. The 

school board asserted that no compensation was awarded under the original May 17, 2005 

award—only medical benefits, and, thus, the limitations period expired two years from the date 

of the March 12, 2003 accident—long before Humphreys’ subsequent March 1, 2006 claim 

based on an alleged change in condition. 

The commission determined that Humphreys’ March 1, 2006 change-in-condition 

application was not barred by the Code § 65.2-708 two-year statute of limitations, but reached 

that decision only after re-evaluating the basis for the deputy commissioner’s May 17, 2005 

award on Humphreys’ original claim. As the commission explained, “[t]his decision is 

complicated by the fact that the [d]eputy [c]ommissioner’s May 17, 2005 [a]ward was 

2

 The school board’s other defenses to the claim are not at issue in this appeal. 
- 4 -

improper.” In that award, the deputy commissioner ordered “reimbursement” of Humphreys’ 

sick leave used for medical appointments, which “exceed[ed] the [c]ommission’s statutory 

authority.” However, according to the commission, it was “obvious” the deputy commissioner 

“intended to award temporary total disability benefits but mistakenly entered the wrong award.” 

The commission then reasoned that the award was 

the equivalent of an award for temporary total disability benefits with a 

credit to the employer for the sick pay that was reinstated. Thus, we will 

utilize our equitable powers grounded in the doctrine of imposition to 

correct this mistake and enter the proper award for nine days of disability. 

The May 17, 2005 [a]ward [o]rder is hereby amended, in relevant part, for 

payment of temporary disability benefits for [the nine days in March, 

April and May 2003 when Humphreys missed work for medical 

appointments]. 

“While these amendments change the form of the [a]ward entered by the [d]eputy 

[c]ommissioner,” the commission stated, they do not “change the substance or effect of the 

award order. Accordingly, we find that the present claim was filed within two years from the 

last day for which compensation benefits were awarded [as required by Code § 65.2-708].” That 

is, the commission concluded that Humphreys filed her change-in-condition application within 

two years from the date of the final order on her original claim, affirming the deputy 

commission’s opinion and then remanding for a determination of Humphreys’ pre-injury average 

weekly wage. 

ANALYSIS 

The school board argues the commission had no authority to award benefits to 

Humphreys on her change-in-condition application in light of the deputy commissioner’s May 

17, 2005 “medical benefits only” award and the parties’ stipulated order, which became final. 

According to the school board, the commission did so only by “chang[ing] the nature of the case 

and remov[ing] a statute of limitations bar.” In other words, the commission “[did] not have 
- 5 -

authority to unilaterally change either a final [o]rder or a [s]tipulated [o]rder eighteen months 

after its entry” on the basis of the doctrine of imposition. 

While recognizing that upon a change-in-condition application the commission, pursuant 

to Code § 65.2-708, may increase the compensation previously awarded within two years from 

the last day for which compensation was paid, the school board contends “no compensation 

benefits were ever paid” to Humphreys under the deputy commissioner’s May 17, 2005 award 

on her original claim. Rather, it was a “medical benefits only” award. Thus, the school board 

argues, Humphreys’ application for compensation, filed more than two years from the date of her 

compensable injury, was time-barred. 

The school board correctly asserts that, where the commission has entered a “medical 

benefits only” award for a compensable injury, any subsequent claim for compensation (i.e., lost 

wages) arising from that injury must be filed within two years from the date of the injury. See

Keith v. Ball Metal Beverage Container, 45 Va. App. 50, 608 S.E.2d 501 (2005); Mayberry v. 

Alcoa Bldg. Prods., 18 Va. App. 18, 441 S.E.2d 349 (1994). And, here, at the time of its 

execution, the deputy commissioner’s May 17, 2005 award provided only medical benefits, as 

the deputy commissioner’s attempt at awarding reinstatement of Humphreys’ sick leave was 

erroneous.3

 

We conclude, however, that under the parties’ stipulated order, which modified the 

deputy commissioner’s award and settled the dispute over Humphreys’ original claim,4

 a portion 

 3

 Humphreys does not contest the full commission’s ruling that the deputy commissioner 

was without authority to order the school board to reinstate sick leave, which, as discussed infra, 

has long been the commission’s position on the issue of reinstating sick leave in relation to its 

interpretation of Code § 65.2-520.

4

 The stipulated order is in the nature of a contract between the parties, and is to be 

construed as such by this Court. See Newman v. Newman, 42 Va. App. 557, 568, 593 S.E.2d 

533, 539 (2004) (“‘While a consent decree is a court order, it is ‘contractual in its nature and 

should be construed as though it were a contract.’” (quoting Gazale v. Gazale, 219 Va. 775, 779, 
- 6 -

 

of Humphreys’ salary was treated as payment of compensation for lost wages under the 

Workers’ Compensation Act (the “Act”). The parties agreed that the nine and a half days 

Humphreys missed for medical appointments were, in fact, compensable under the Act, subject 

to the Code § 65.2-509 seven-day waiting period, that Humphreys’ last two and a half days of 

sick leave were currently due and payable, and that a portion of Humphreys’ salary for those last 

two and a half days of sick leave was to be treated as the payment of workers’ compensation 

benefits. We thus hold that Humphreys’ change-in-condition application was not barred by the 

applicable two-year statute of limitations, and affirm the commission’s ruling to that effect, but 

on grounds other than the doctrine of imposition.5

 

Despite the import of the terms of the parties’ stipulated order, the school board contends 

on appeal that, as a matter of law, the payment of wages to Humphreys could not subsequently 

be deemed payment of compensation to her under the Act. We disagree. Code § 65.2-520 

states, in relevant part, that “[a]ny payment made by the employer to the injured employee 

during the period of disability . . . 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 . . . .” (Emphasis added.) 

While the Virginia appellate courts have not addressed Code § 65.2-520 in the context 

here presented in a published decision, the commission, in applying this statute, has consistently 

held, at least since 1988, that 

250 S.E.2d 365, 367 (1979))); Albert v. Ramirez, 45 Va. App. 799, 807, 613 S.E.2d 865, 869 

(2005) (“‘A consent decree is a contract or agreement between the parties to the suit, entered of 

record in the cause with the consent of the court, and is binding unless secured by fraud or 

mistake.’” (quoting Orlandi v. Orlandi, 23 Va. App. 21, 26, 473 S.E.2d 716, 719 (1996))). 

 5

 We may affirm the judgment of the commission for reasons other than those upon 

which the commission reached its decision. See Granados v. Windson Dev. Corp., 257 Va. 103, 

109, 509 S.E.2d 290, 293 (1999); Mercy Tidewater Ambulance Serv. v. Carpenter, 29 Va. App. 

218, 226, 511 S.E.2d 418, 421 (1999). 
- 7 -

the payment of wages to the employee based upon sick or annual leave 

may be credited to the employer under the provisions of Code § 65.1-72 

[now Code § 65.2-520] when leave is reinstated. In the absence of an 

outstanding award of compensation, salary paid to the employee during 

his disability may be considered to be payment of compensation in the 

discretion of the Industrial Commission for purposes of “credit” under 

Code § 65.1-72. 

 

Dyson v. Commonwealth, VWC File No. 129-25-08, 1988 VA Wrk. Comp. LEXIS 68, at *3 

(Oct. 11, 1988) (emphasis added). 

 As the commission more recently stated in Myers v. City of Danville Police, VWC File 

No. 179-46-44, 1998 VA Wrk. Comp. LEXIS 4342, at *5 (April 28, 1998): 

[T]he employer is entitled to a credit, pursuant to 65.2-520 of the Code of 

Virginia, for the wages paid to the claimant based upon sick leave and 

annual leave benefits for the periods of disability awarded because the 

uncontradicted evidence [in Myers, as in the instant case,] establishes that 

the leave used by the claimant was reinstated to his leave balance. 

Although we found in Lucas v. Research Analysis Corp., 61 OIC 166 

(1969) that the employer is not entitled to any credit for salary paid if it 

was charged against the claimant’s sick leave or annual leave, we held in 

Dyson v. Commonwealth of Virginia Department of Transportation, 67 

OIC 237 (1988) that the employer is entitled to a credit for wages paid 

based on sick or annual leave “when leave is reinstated.” We agree with 

the Chief Deputy Commissioner that the Commission has no jurisdiction 

to consider the employer’s policies regarding sick leave or annual leave 

and as long as reinstatement of those benefits is proved, the employer is 

entitled to a credit for wages previously paid. See Perkins v. Crown 

Central Petroleum, VWC File No. 159-72-55 (June 15, 1993). 

See also Epps v. Inova Fair Oaks Hosp., VWC File No. 213-55-21, 2007 VA Wrk. Comp. 

LEXIS 481 (March 23, 2007) (explaining that, while the commission does not have authority to 

order the employer to reinstate sick leave, the employer, pursuant to Code § 65.2-520, would be 

entitled to a credit for salary paid where it was charged against the claimant’s sick leave if the 

leave is reinstated (citing Lucas, Dyson, and Myers)); Adkinson v. H & H Indus., VWC File No. 

225-11-41, 2007 VA Wrk. Comp. LEXIS 756 (June 15, 2007) (same); Robbins v. County of Lee 

Sch. Bd., VWC File No. 209-20-79, 2004 VA Wrk. Comp. LEXIS 987 (Dec. 8, 2004) (same). 
- 8 -

 Accordingly, under the commission’s construction of Code § 65.2-520, as applicable in a 

case such as this one, the claimant is not required to “‘buy back’ her leave balances,” and the 

employer is “entitled to a credit” for wages it paid for sick leave, where such leave has been 

reinstated. Saul v. Total Action Against Poverty, VWC File No. 196-47-46, 2000 VA Wrk. 

Comp. LEXIS 343, at *4 (June 21, 2000). “In other words, the claimant gets her leave restored, 

and her workers compensation benefits[,] while the employer is granted credit against owed 

workers’ compensation indemnity benefits for wages paid through the now-restored leave.” Id. 6 

We are persuaded the commission’s construction of Code § 65.2-520 is correct. As so 

applied, the statute dictates that a portion of Humphreys’ sick leave pay be viewed as the 

equivalent of the school board’s payment of compensation on her original claim, pursuant to the 

terms of the parties’ stipulated order.7 Indeed, under settled principles, the commission’s 

 6

 By comparison, the parties in the instant case could have settled the matter by providing 

in the stipulated order that the school board was required to currently make payment to 

Humphreys for her last two and a half days of sick leave in the amount of 66 2/3% of her average 

weekly salary (pursuant to Code § 65.2-502), that her first seven days of sick leave were subject 

to future compensation (pursuant to Code § 65.2-509’s waiting period), that the school board was 

required to reinstate all of Humphreys’ nine and a half days of sick leave, and that Humphreys 

was required to reimburse the school board all of the salary she received for those nine and a half 

days. This would have placed the parties in the same position as if the school board had paid 

Humphreys no salary during her absence, she had taken no sick leave, and she had then been 

awarded compensation for lost wages for that portion of her absence from work that was 

currently due and payable as compensation. The parties, however, chose not to settle the claim 

in that manner. Instead, they chose to give the school board credit for wages already paid to 

Humphreys as payment of compensation (at such time as compensation was or would “become 

payable”), along with reinstatement of portions of her sick leave, and, under those terms, 

Humphreys was not required to buy back her sick leave. 

 

7

 We also note that Code § 65.2-708(C) sets forth another example of the payment 

of wages being treated as the payment of compensation under the Act. For purposes of 

tolling the statute of limitations on a change-in-condition application, this provision 

mandates as follows: 

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 
- 9 -

construction of the statute “‘is entitled to be given weight’” on appeal, Cox v. Oakwood Mining, 

Inc., 16 Va. App. 965, 969, 434 S.E.2d 904, 907 (1993) (quoting Peyton v. Williams, 206 Va. 

595, 600, 145 S.E.2d 147, 151 (1965)), where its construction has been “‘consistently and 

regularly applied’” over a long period of time, and does not conflict with the language of the 

statute,8 id. (quoting Commonwealth v. May Bros., Inc., 11 Va. App. 115, 119, 396 S.E.2d 695, 

697 (1990)); see Cross v. Newport News Shipbuilding & Dry Dock Co., 21 Va. App. 530, 533, 

465 S.E.2d 598, 599 (1996); City of Waynesboro v. Harter, 1 Va. App. 265, 269, 337 S.E.2d 

901, 903 (1985). 

Under the terms of the stipulated order, the parties agreed (a) to credit the school board 

for a portion of the salary previously paid to Humphreys as payment of compensation, and (b) to 

reinstate certain corresponding portions of Humphreys’ sick leave, as such compensation 

benefits were due and payable (both presently and in the future).9 This is initially evidenced by 

the parties’ stipulation that Humphreys’ first seven sick leave days (out of her total nine and a 

half days of sick leave) were “not yet payable” under the award because she had “not exhausted 

the waiting period [under Code § 65.2-509] for payment of indemnity of [those] first seven days, 

 

provided work within his capacity at a wage equal to or greater 

than his pre-injury wage, shall be considered compensation. 

Code § 65.2-708(C) (emphasis added). See Scott v. Scott, 16 Va. App. 815, 819, 433 S.E.2d 

259, 262 (1993). 

8

 That is to say, the commission’s construction of Code § 65.2-520 in the instant context 

does not “involve[] a pure question of statutory interpretation,” thus giving rise to our deference 

to the agency’s “practical construction” of the statute based on its “specialized competence” to so 

construe the statute. Commonwealth v. Barker, 275 Va. 529, 536, 659 S.E.2d 502, 505 (2008) 

(citations and internal quotation marks omitted). 

 

9

 It is apparent that the parties agreed to the reinstatement of less than all of Humphreys’ 

sick leave for each day on which she was entitled to compensation based on the fact that, in 

receiving her full salary, Humphreys was paid more than she was owed in compensation for each 

of those days. The actual formula the parties used for calculating the amount of sick leave to be 

reinstated is not in dispute. 
- 10 -

and therefore those days [were] not yet payable.” The order then establishes for those first seven 

days a formula for reinstating sick leave “in exchange for each day payable” to the extent “they 

do become payable”—i.e., “ re-instate[ment] [of] sick time at a rate of .75 days in exchange for 

each day payable, but only in multiples of one.” Finally, a portion of Humphreys’ salary for her 

last two and a half sick leave days is treated in the order as payment of workers’ compensation as 

evidenced by the parties’ stipulation that “[f]or the remaining days lost” the school board “shall 

only be responsible for the reinstatement of two days sick time.” In other words, unlike 

Humphreys’ first seven sick leave days, compensation for her last two and a half days was 

currently due and payable; and, therefore, the school board, in taking a credit for wages already 

paid to Humphreys as payment of compensation, was reinstating two days of her sick leave. 

Humphreys thus received the equivalent of an award of compensation under the deputy 

commissioner’s May 17, 2005 award, as modified by the stipulated order, dated August 22, 

2005. This means that, pursuant to Code § 65.2-708, Humphreys had two years from the date of 

the stipulated order to file her change-in-condition application, which she filed on March 1, 

2006. Her application was therefore timely filed. 

CONCLUSION 

 Under the stipulated order setting forth the parties’ settlement agreement, the school 

board was credited with a portion of its sick leave pay to Humphreys as the payment of workers’ 

compensation in exchange for reinstatement of a portion of her sick leave taken as a result of her 

compensable injury. Humphreys thus received, for purposes of the Act, the equivalent of an 

award of compensation on her original claim under the deputy commissioner’s May 17, 2005 

award, as modified by the stipulated order. Accordingly, Humphreys’ change-in-condition 

application, filed on March 1, 2006, within two years of the stipulated order, dated August 22, 

2005, was timely filed. 
- 11 -

For these reasons, we affirm the commission’s decision awarding benefits to Humphreys 

on her change-in-condition application. 

 Affirmed.