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. 
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 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. 
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 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 

 1The 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. 
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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. 
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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 
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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.