COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Felton, Judges Kelsey and McClanahan 

Argued at Salem, Virginia 

HELEN MARIE DAVIS 

 OPINION BY 

v. Record No. 2744-09-3 CHIEF JUDGE WALTER S. FELTON, JR. 

NOVEMBER 16, 2010 

CITY OF LYNCHBURG WASTE MANAGEMENT AND 

 LIBERTY MUTUAL INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION 

 Robert E. Evans for appellant. 

 Roberta A. Paluck (Frankl Miller & Webb, LLP, on brief), for 

appellees. 

Helen Marie Davis (“claimant”) appeals the Workers’ Compensation Commission 

(“commission”) decision terminating its December 10, 2004 award of temporary partial 

disability compensation benefits payable to her by City of Lynchburg Waste Management and 

Liberty Mutual Insurance Company (collectively “employer”). Claimant contends the 

commission erred in finding that employer’s June 30, 2008 application for a hearing to terminate 

that award was timely filed pursuant to Code § 65.2-708 and Commission Rule 1.4.1 For the 

following reasons, we affirm the commission’s decision terminating claimant’s temporary partial 

disability compensation benefits.2

 1

 This appeal is governed by Rule 5A:20(c) as worded prior to its revision effective July 

1, 2010, changing the requirement for setting forth “questions presented” to “assignments of 

error.” Because each of claimant’s questions presented are interconnected, we address them 

together. 

2

 Employer cross-appeals contending that the commission erred in finding that claimant 

notified the commission of her change of address and in failing to suspend compensation benefits 

pursuant to Code § 65.2-711. Because we conclude that the commission did not err in 
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I. BACKGROUND 

Claimant suffered a compensable injury to both knees on January 29, 2001 while working 

for employer.3 On December 10, 2004, the commission awarded temporary partial disability 

compensation benefits to claimant in the amount of $91.14 per week, beginning May 10, 2004 

and continuing. 

On May 23, 2006, claimant began full-time employment with Progress Printing earning a 

wage in excess of her pre-injury wage. The following day claimant called employer and 

disclosed her new employment and wage. 

Employer continued to pay claimant compensation benefits through June 11, 2006. 

Thereafter, without notifying the commission of its action, employer ceased payment of 

compensation benefits to claimant under the outstanding award. 

On June 14, 2006, employer sent a Termination of Wage Loss Award form to claimant’s 

attorney to obtain claimant’s signature. When employer did not receive the form signed by 

claimant, it made several unsuccessful attempts to contact claimant through her attorney. Laurel 

Hendricks, a representative of employer’s workers’ compensation insurance carrier, testified that 

claimant’s attorney initially told her that he had sent the form to claimant. However, claimant’s 

attorney later told her that he never received the Termination of Wage Loss Award form. On 

September 12, 2006, employer sent a second completed Termination of Wage Loss Award form 

to claimant’s attorney to obtain claimant’s signature. 

terminating claimant’s award of temporary partial disability compensation benefits, we do not 

address the merits of employer’s cross-appeal. 

3

 On April 8, 2004, a deputy commissioner found that a de facto award existed with 

regard to claimant’s knee injuries and awarded her temporary total disability compensation 

benefits beginning January 29, 2001 and continuing. On May 10, 2004, claimant began selective 

employment with a temporary employment agency. 
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Two days later, on September 14, 2006, the commission sent employer its standard letter 

advising employer of claimant’s outstanding compensation award. The letter additionally stated 

that “[i]f payments have ceased, an executed Termination of Wage Loss Award or an 

Employer’s Application for Hearing must be filed to end the award.” 

After employer made several additional unsuccessful attempts to contact claimant 

through her attorney, claimant’s attorney sent a letter, dated October 25, 2006, to employer 

stating that claimant had not reviewed or signed the termination form and that “[p]erhaps if 

[employer] file[d] an application for hearing it will either get [claimant] to appear or will 

otherwise resolve the matter.”4

On March 14, 2008, the commission sent employer its standard letter advising employer 

that claimant’s compensation award remained outstanding as of that date. 

On June 11, 2008, claimant sent a letter to the commission asserting that, even though her 

award of temporary partial disability compensation benefits continued in effect, employer had 

wrongfully ceased making payments under that award. On June 13, 2008, the commission ordered 

employer to either pay claimant the past due compensation benefits under the outstanding award, 

plus a twenty percent penalty, or provide a sworn statement as to why it had not paid those benefits. 

On June 30, 2008, employer issued its check to claimant for compensation benefits owed for 

the period of June 12, 2006 through June 30, 2006. On the same date, employer filed an application 

for hearing with the commission. It requested that claimant’s outstanding temporary partial 

disability compensation award be terminated based on a change in condition, because claimant had 

returned to full-time employment on May 23, 2006 earning a wage greater than her pre-injury 

4

 Hendricks testified at her deposition that employer also attempted to contact the 

commission regarding the status of the outstanding award on two occasions in late December 

2006, but inadvertently gave the commission the wrong commission file number. 
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wage. Employer’s application for a hearing stated that it had paid claimant compensation benefits 

due under the award through June 30, 2006. 

At the hearing before a deputy commissioner, claimant argued that employer failed to 

comply with the time limitations of Code § 65.2-708 and Commission Rule 1.4. She asserted that 

more than twenty-four months had elapsed since June 11, 2006, the last date for which she had been 

paid compensation benefits under the outstanding award prior to employer’s filing its June 30, 2008 

application for hearing. Employer contended that its payment of compensation benefits to claimant 

on June 30, 2008 brought its payments under the award current through June 30, 2006, exactly 

twenty-four months prior to filing its application for hearing, thereby satisfying the time 

requirements of Code § 65.2-708. 

The deputy commissioner found that employer’s application to terminate claimant’s 

compensation benefits based on a change in condition was untimely. The deputy commissioner 

concluded that Code § 65.2-708(A) provided a “definable, two-year limitations period” and that 

an employer could not “extend that time under the pretext of paying additional disability 

compensation benefits retroactively after the limitations period has run.” Employer appealed to 

the full commission. 

On review, the full commission unanimously reversed the decision of the deputy 

commissioner, concluding that employer’s application for a hearing to terminate the outstanding 

compensation award was timely filed. It found that at the time employer filed its application for 

hearing on June 30, 2008, employer had paid and “claimant [had] received all of the temporary 

partial disability compensation due under the open award for the twenty-four months prior to the 

filing . . . as required by Code § 65.2-708(A).” The commission terminated its December 10, 2004 

temporary partial disability compensation award “effective July 1, 2006, the date subsequent to 

that for which the claimant was last paid benefits.” 
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II. ANALYSIS 

Claimant contends the commission erred in finding that employer’s application for a 

hearing to terminate her compensation benefits award was timely filed pursuant to Code 

§ 65.2-708 and Commission Rule 1.4. She asserts that because employer waited more than two 

years after the last date for which it paid compensation to request a hearing to terminate her 

award, its June 30, 2008 application for hearing based on a change in condition was not timely 

filed. She argues that the twenty-four-month limitation of Code § 65.2-708(A) expired on June 

11, 2008, prior to employer’s June 30, 2008 hearing application, and that its June 30, 2008 lump 

sum payment of compensation could not retroactively extend the limitations period under Code 

§ 65.2-708. 

Code § 65.2-708(A) provides, in pertinent part: 

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, subject to the maximum or minimum provided in this 

title, and shall immediately send to the parties a copy of the 

award. . . . No such review shall affect such award as regards any 

moneys paid . . . . 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 . . . . 

(Emphasis added). 

Commission Rule 1.4 provides, in pertinent part, “No change in condition application 

under [Code] § 65.2-708 . . . shall be accepted unless filed within two years from the date 

compensation was last paid pursuant to an award.” Commission Rule 1.4(E). 

In Diaz v. Wilderness Resort Association, 56 Va. App. 104, 115-16, 691 S.E.2d 517, 523 

(2010) (second and third alterations in original) (quoting Gordon v. Ford Motor Co., 55 Va. App. 

363, 369, 685 S.E.2d 880, 883 (2009) (en banc)), we held: 
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“[T]he twenty-four-month limitation of Code § 65.2-708(A) is not 

a statute of limitations in the ordinary sense. It does not provide 

that [a party] has twenty-four months from the date the change in 

condition occurred to file. Rather subsection A provides that the 

change in condition must occur within twenty-four months from 

the date [for which] compensation was last paid.” It is also well 

settled that the time provisions of Code § 65.2-708 are not 

jurisdictional and may be waived. 

Here, in finding that employer’s June 30, 2008 application for hearing to terminate the 

compensation award was timely filed, the commission stated: 

[T]he language of the statute is plain and unambiguous. Code 

§ 65.2-708 states that “[n]o such review shall be made after 

twenty-four months from the last day for which compensation was 

last paid.” The phrase in the statute “for which” does not indicate 

when the employer must pay compensation that is due to the 

claimant. There is simply no requirement upon the employer to 

file its application within twenty-four months from the last day on 

which compensation was last paid. 

As we recently held in Diaz: 

Construed together, [Code § 65.2-708] and [Commission] Rule 1.4 

require that where, as here, a claimant under an outstanding award 

returns to work earning a wage at or above her pre-injury wage and 

the employer unilaterally ceases making payments under the 

award, if the employer waits more than two years after the last 

date for which it paid compensation to request a hearing to 

terminate the award, it must pay “compensation” as defined by the 

Act through a date no less than two years prior to the date on 

which it files its application for hearing. 

56 Va. App. at 118, 691 S.E.2d at 524 (emphasis added). “Code § 65.2-708 provides [that] an 

employer is entitled to file its application for hearing without bringing its compensation 

payments current to closer than two years to the date of filing.” Id. at 122-23, 691 S.E.2d at 526. 

On June 30, 2008, employer made a lump sum payment to claimant bringing its 

compensation payments, due under the award, current to two years prior to the date of filing its 

application for hearing. Accordingly, we conclude the commission did not err in finding that 

employer’s application for a hearing to terminate claimant’s outstanding compensation award 
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was timely filed, and affirm the commission’s decision to terminate its December 10, 2004 

temporary partial disability compensation award effective July 1, 2006. 

 Affirmed.