COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Kelsey Argued at Salem, Virginia

EMORY LEE MORRIS MEMORANDUM OPINION * BY v. Record No. 2368-03-3 J UDGE JAMES W. BENTON, JR. MARCH 30, 2004 DUNHAM-BUSH, INC. AND TWIN CITY FIRE INSURANCE COMPANY

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Terry L. Armentrout (Armentr out & Armentrout, on brief), for appellant. Richard H. Milnor (Taylor, Zunka, Milnor & Carter, Ltd., on brief), for appellees.
The Workers’ Compensation Commissi on ruled that Emory L. Morris’s change-in-condition application, whic h asserted a claim for permanent partial disability benefits, was barred by the statutory limitation period of Code § 65.2-708(A). Morris contends no credible evidence support s the commission’s finding that he wa s able to perform his pre-injury work and, therefore, the commission erred in ruling that the tolling provisions of Code § 65.2- 708(C) had not interrupted the st atutory limitation period. We a ffirm the commission’s ruling.
I. The record establishes that Dunham-Bush, In c. employed Emory L. Morris as a tester. Morris’s duties in that position required him to “hook up” rooftop air conditioners. In April of 1998, Morris suffered a rotator cuff tear in his ri ght shoulder while he was using a wrench to remove an evaporator plug on an air conditioner. During the course of tr eating Morris for this

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.injury, Dr. Douglas Hendren perform e d surger y on Morris’s right shoulder. On August 20, 1998, Dr. Hendren indicated that he anticipated returning Morris to work in four weeks and provided the following restricti ons: “no lifting above shoulde r no lifting over 30 [pounds,] 4 hours daily for 4 [weeks,] then will re-evaluate. ” Morris returned to his employm e nt as a tester at Dunha m - Bush on September 17, 1998. He testified as follows concerning his tasks: Q. All right. W h en you returned to work, was there --- was your work --- was there anything differe nt about the way you perform e d your work thereafter? After you returned? A. Other than the restriction that I was on. I had to abide by that. Q. Okay. What --- ho w were you restricted ? A. Nothing above, no certain weight lim its. Q. Nothing above, I . . . A. W e ll, above shoulder level. Q. Okay. Did the em ployer honor those restrictions? A. Yes, sir. Q. Okay. Were you given any instructions by the em ployer as to what to do, how to work within those restrictions? A. They told m e if I got to that point that I had to go above, to get help. I have felt, you know . . . Q. Did you do that? A. Yes, sir. Dunha m - Bush accep ted the in jury as com p ensable and subm itted to the co mmission a

m e morandum of agree m ent between Morris a nd Dunha m - Bush. The commission entered an award for temporary total disability bene fits from May 28, 1998 to September 17, 1998.

- 2 -On Dece m b er 29, 1998, Dr. Hendren revised Mo rris’s work restrictions as follows: Morris should have som e restric tion from repetitive work at or above the shoulder level due to his rotator cuff injury. This is the only specific restricti on I would give him for long term , which is rela ted to h i s rota tor cuf f surgery. Several m onths later, Dr. Hendren noted that Morris “holds the sam e job with testing of refrigeration equipm ent” and further that Morr is' s work “involves installing and m a nipulating parts as heavy as perhap s 25 [pounds], occasionally in th e overhead position, but with out repetitive overhead work.” Dr . Hendren also rep o rted that M o rris had som e “residual pain and fatigue lim iting his overhead activity” and again i ndicated that Morris “s hould avoid repetitive work or repetitive lifting at or above the level of the shoulders.” Morris filed a change-in-condition claim for bene fits on November 1, 2001, seeking
perm anent partial disability benefits, as pr ovided in Code § 65.2-503, for his right shoulder injury.
II. In pertinent part, Code § 65.2-708 provides as follows: A. Upon its own m o tion or upon th e application of any party in interest, on the ground of a cha nge in condition, the Comm ission m a y review any award and on such review m a y m a ke an award ending, dim i nishing or increasi ng the com p ensation previously awarded . . . . No such review shall be m a de af ter twenty-f ou r months from the last day for which com p ensation was paid, pursuant to an award unde r th is title, except: (i) thirty -six m onths from the last day for which com p ens a tion was paid shall be allowed for the filing of claim s payable under § 65.2-503 . . . . * * * * * * * C. All wages paid, for a period no t exceeding twenty-four consecutive months, to an em ployee (i) who is physically unable to return to his pre-injury w o rk due to a com p ensable inju ry and (ii) who is provided work within his capacity at a wage equal to or greater than his pre-injury wage, shall be considered com p ens a tion.

- 3 -In other words, subsectio n A of the statute, which governs the filing of a change-in

- co ndition application f o r perm anent partia l disability benefits under Co de § 65.2-503, provides a lim itation period of thirty-six m onths from the last day for which com p ensation is paid pursuant to an

a w a r d

. J o h n s o n v . S m ith , 16 Va. App. 167, 168, 428 S.E.2d 508, 509 (1993). Subsection C of the statute, h o wever, tolls the statu t or y lim ita tion for an em ployee who is paid wages and who

m eets the conditions spe c if ied in pa rts ( i ) a n d ( i i ) o f s u b s e c t i o n C

. S e e G r e e n e v . G w a l t n e y o f
S m i t h fi el d, Inc. , 13 Va. App. 486, 492, 413 S.E.2d 650, 654 (1992) (interpreting the tolling provision under Code § 65.1-55.1, th e predecessor statute). The deputy comm issioner found that Morris “returned to his sam e job as a tester perform i ng essentially the sam e wor k that he had perform e d” pre-injury a nd that, therefore, the tolling provision of Code § 65.2-708(C) was not applicable. On review, the comm ission upheld the deputy comm issioner’s “finding that the tolling provision of subsection C does not apply to the facts of this case, and thus, that th e statute of lim itations b a rs the cla i m.” Morr is ap peals this decision.
III.

“ W e are guided by the principle that the Comm is sion’s findings of fact, if supported by credib le ev idence, are conclusi v e a n d b i n d i n g o n a p p e a l

. ” F a lls Church C onstruction Co. v. Laidle r , 254 Va. 474, 478-79, 493 S.E.2d 521, 524 (1997) (citing Code § 65.2-706). Reviewing the comm ission’s findin g s, we note that the co mm ission accurately descri bes Mo rris’s testim ony as f o llows: [ M orris] rep eated ly tes t if ied that af te r his in jury, he retu rned to working for the em ployer at his pre-injury job as a tester. Although he testified that he was restricted from l i fting certain weights above shoulder height, he said that the employer honored his restrictions and allowed him to seek assis t ance whenever he faced a task that would exceed his lim itations.

- 4 -Indeed, as the comm ission also found, Dr. Hendren ’s report of October 22, 1999 indicates that Morris “holds the sam e job with testing of re frigeration equipm ent . . . [, which] involves installing an d m a nipulating parts as h eavy as pe rh aps [twenty-five pounds], occasion a lly in the overhead position, but w ithout re petitive overhead work.” Th is description, which Morris related to Dr. Hendren, tracks the testim ony Morris gave at the evidentiary hearing. We have held that the statutory tolling pr ovision was enacted “to prevent em ployers from lulling par t ially d i sabled workers in to a f a lse sense of security during this two year period by providing employees light duty work at the i r p r e - inju ry wage f o r two years and then term inating the em ployee without liability for future d i s a b i l i t y b e n e f i t s
. ” S c o t t v . S c o t t , 16 Va. App. 815, 819, 433 S.E.2d 259, 262 (1993) (applying Code § 65.1-55.1, the predecessor to Code § 65.2-708(C)). Thus, in a case where the em ploy ee’s “pre-injury and po st-injury jobs were virtually indistinguishable,” we held that al though the em ployee “conti nued to have a lifting restriction, . . . this restric tion did not lim it perform a nce of he r day-to-day work” and the

em ployee “presented no evidence that she was lu lled into a false sense of security by employer.” Nguyen v. Fairfax County Bd. of Supervisors , 26 Va. App. 100, 103-04, 493 S.E.2d 391, 392-93 (1997). W e f u r t h e r h e l d i n N g u y e n that the em pl oyee “returned to her pre-injury work and therefore does not qualify fo r tolling under Code § 65.2-708(C).” 26 Va. App. at 104, 493 S.E.2d at 393. Sim ilarly, the evidence in the reco rd in this case was sufficient to prove Morris had returned to a post-injury work position that was virtually indistinguishable from his pre-injury w o rk position. Accordingly, we hold th at credible evidence in the record supports the

comm ission’s “finding that [Morris’s] pr e-injury and post-injury positions were indistinguishable.” Morris furth e r argu es, h o wever, tha t the co mm is sion disregarded a report by Dr. Irvine E. Hess dated Nove m b er 7, 2001, which restricts Morris “to avoid overhead lifting, he is not to lift

- 5 -anything over twenty pounds.” The record unam biguously establishes, however, that Morris had a work injury to his left shoulder and neck in March of 2000, which was unrelated to the claim at issue in this appeal. Dr. Hess treated Morris fo r his lef t shou lder injury a nd issued th ese restrictions because of Morris’ s left shoulder injury. The ch ange-in

- con d ition application at issue in this appeal con c erns the d i sa bility re la ted to Morris’s right s houlder injury. We hold, therefore, that the commissi on properly disregarded Dr. Hess’ s Nove m b er 7, 2001 restrictions because they were not g e rm ane to the applicatio n before it.
In summ ary, Morris returned to his empl oym e nt as a tester on Septem ber 17, 1998 and perform e d tasks that were indistinguishable from his pre-injury tasks. The last day from which

com p ensation was paid pursuant to the aw ard was Septem ber 17, 1998. Morris filed his change-in-condition claim for benefits on Novemb er 1, 2001, more than thir ty-six m onths after

com p ensation was last p a id pursuan t to the aw ard. W e , therefore, affirm the comm is sion’s ruling that Morris’s ap plica tion f o r

perm anent part ial d i sab ility benef i ts was barred by the statute of

lim itation s
. A f f i r m e d

.

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