COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Felton, Judges Elder, Frank, Humphreys, McClanahan, Haley, Petty, Beales, 

Powell and Alston 

Argued at Richmond, Virginia 

JOHN T. GORDON, JR. 

 OPINION BY 

v. Record No. 0364-08-1 JUDGE ELIZABETH A. McCLANAHAN 

 DECEMBER 15, 2009 

FORD MOTOR COMPANY 

UPON A REHEARING EN BANC 

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION 

 Gregory E. Camden (Charlene A. Morring; Montagna Klein 

Camden, L.L.P., on briefs), for appellant. 

 Barry Dorans (Samuel W. Meekins; Wolcott, Rivers, Gates, P.C., on 

brief), for appellee. 

John T. Gordon, Jr. appeals the Workers’ Compensation Commission’s rejection of his 

change-in-condition application for benefits as time barred under the Code § 65.2-708(A) 

two-year statute of limitations. Gordon argues the commission erred in ruling that the tolling 

provision in subsection C of this statute “extends only once during the life of a workers’ 

compensation case,” and thus did not operate so as to render his claim timely. A panel majority 

of this Court agreed with Gordon and reversed the commission’s decision. We granted a petition 

for rehearing en banc and stayed the mandate of the panel decision. Upon rehearing en banc, we 

reverse the commission and remand the case for further proceedings. 

I. BACKGROUND

 The relevant facts are not in dispute. Gordon suffered a compensable injury by accident 

on January 9, 2000 while working at Ford’s production plant in Norfolk. Based on this injury, 
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the commission entered a series of awards of compensation to Gordon for various periods of 

temporary total and temporary partial disability. The last of these awards, entered on January 13, 

2003, was an open-ended award for partial disability. Gordon received his last direct payment of 

compensation under the award on February 23, 2003. 

 Following his injury, Gordon continued to work for Ford intermittently (between periods 

of temporary total disability), but only in a light-duty position due to restrictions arising from the 

injury. From October 23, 2000 through January 3, 2001 and from April 1, 2002 through June 30, 

2002, Gordon worked in such a position and earned wages at or above his pre-injury wage. 

Gordon also worked in a light-duty capacity for Ford from April 20, 2003 through September 11, 

2006, again earning wages equal to or higher than his pre-injury average weekly wage. 

 On September 11, 2006, Gordon was temporarily laid off from his position at Ford 

because the plant was shut down for production reasons. On September 25, 2006 and again on 

November 6, 2006 Gordon applied for disability benefits based on lost wages caused by this 

“change in condition.” 

 Ford defended against Gordon’s 2006 application for benefits, in part, by arguing that it 

was time-barred. Ford asserted that the claim was not filed within two years of Gordon’s last 

payment of compensation (February 23, 2003), that this last payment triggered the running of the 

two-year statute of limitations under Code § 65.2-708(A), and thus the claim was untimely. 

 Relying on Code § 65.2-708(C),1

 Gordon argued that his application was not time-barred 

because all the wages he received for the first twenty-four months of the last period he worked 

for Ford in a light-duty capacity (April 20, 2003 to September 11, 2006) were deemed to be 

1

 Code § 65.2-708(C) provides that wages paid to an employee for light-duty work, which 

are equal to or greater than his pre-injury wage, are treated as compensation for purposes of 

subsection A of the statute, “for a period not exceeding twenty-four consecutive months.” 
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compensation—with those first twenty-four months ending on April 20, 2005.2

 Gordon 

therefore asserted that the two-year statute of limitations in Code § 65.2-708(A) did not begin to 

run until April 20, 2005, meaning that his application, filed in 2006, was timely. 

 Ford responded that the twenty-four-month tolling provision in Code § 65.2-708(C) could 

be triggered only once, which occurred when Gordon returned to work, in a light-duty position, 

in October 2000. Ford reasoned that when Gordon was again awarded temporary total disability 

benefits in January 2001, the tolling provision was no longer applicable. Thus, Ford concluded, 

“thereafter, all claims for further compensation would have to be filed within two years from the 

date for which compensation was last paid per [Code] § 65.2-708(A) and that [Code 

§ 65.2-708(C)] could not be used to extend the period during which compensation was said to be 

paid.” Ford maintained that since Gordon was last paid workers’ compensation benefits on 

February 23, 2003, he only had until February 23, 2005 to apply for benefits based on a change 

in condition. 

 The deputy commissioner rejected Ford’s argument and awarded Gordon the benefits he 

requested. The deputy commissioner determined that “nothing in the statute indicates that the 

provisions of Code § 65.2-708(C) do not begin to run anew after later periods of partial disability 

or temporary total disability for which awards are entered.” 

 Ford appealed the deputy commissioner’s decision to the full commission. The 

commission held that Gordon’s change-in-condition application was time-barred. The 

commission explained its holding as follows: 

We have held that the term “consecutive” in § 65.2-708(C) means 

“following successively without interruption.” Frisk v. Marshall’s, 

VWC File No. 183-99-55 (June 6, 2007); Crites v. Slurry Pavers, 

Inc., VWC File No. 202-99-47 (February 15, 2005) (finding the 

 2

 This last period (April 20, 2003 to September 11, 2006) of the three different periods 

that Gordon worked for Ford in a light-duty capacity following his compensable injury was the 

only period that exceeded twenty-four consecutive months. 
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statute tolled only for one consecutive period). We have 

additionally held that this section provides “an extended limitation 

period” and the consecutive twenty-four month period begins on 

the date the claimant is provided light duty work. Phelps v. 

Safeway Stores, Inc., 77 OCE 138 (1998) (emphasis added), aff’d, 

Record No. 1246-98-4 (Ct. App. 1999) (unpub.). Our holdings are 

consistent with the language of the statute referring to “a period” 

and not to multiple periods. See also Greene v. Gwaltney of 

Smithfield, Inc., 13 Va. App. 486, 492, 413 S.E.2d 650, 654 

(1992).3

Therefore, according to the commission, the Code § 65.2-708(C) tolling provision does not 

“‘begin to run anew’ after later periods of awarded disability.” In other words, the provision is 

applicable only once to a compensable injury regardless of the number of awards of 

compensation for subsequent periods of disability that may arise from the injury. 

 This appeal followed. 

II. ANALYSIS

 Under Code § 65.2-708(A),4 a party may ask the commission to “review any award” of 

benefits based upon a change in condition. However, “[n]o 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 . . . .” Code § 65.2-708(A). As such, the twenty-four-month limitation of Code 

§ 65.2-708 “is not a statute of limitations in the ordinary sense. It does not provide that a 

 3

 As explained infra, we do not accord deference to the commission’s interpretation of 

the statute, which is in conflict with the statute’s plain language. 

4

 Code § 65.2-708(A) provides, in relevant part, as follows: 

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 . . . . 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 . . . . 
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claimant has twenty-four months from the date the change in condition occurred to file.” 

Armstrong Furniture v. Elder, 4 Va. App. 238, 241, 356 S.E.2d 614, 615 (1987) (applying former 

Code § 65.1-99, now Code § 65.2-708). Rather, subsection A provides that the change in 

condition must occur within twenty-four months from the date compensation was last paid. Id. 

Subsection C of Code § 65.2-708, in turn, operates as a tolling provision that extends this 

limitation. This tolling is effected by an expanded definition of compensation to include wages 

paid to a claimant for light-duty work that are equal to or greater than his pre-injury wages: 

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. 

 

Code § 65.2-708(C). 

 The parties concede that the wages paid to Gordon following his compensable injury met 

the statutory test, to the extent that (i) he was unable to return to his pre-injury work due to 

restrictions from the injury, and (ii) Ford provided him light-duty work at wages equal to or 

greater than his pre-injury wage. However, the parties disagree as to the meaning of the phrase 

“for a period not exceeding twenty-four consecutive months” in Code § 65.2-708(C) as applied 

in this case.5

 

 Under well-settled rules of statutory construction, “we consider the language of a statute 

to determine the General Assembly’s intent from the plain and natural meaning of the words 

used.” Alcoy v. Valley Nursing Homes, Inc., 272 Va. 37, 41, 630 S.E.2d 301, 303 (2006) 

(citations omitted). That is, “words [in a statute] are to be given their ordinary meaning, unless it 

 5

 Because we have determined that the sole issue presented ‘“involves a pure question of 

statutory interpretation, [the] issue does not invoke the [commission’s] specialized competence 

but is a question of law to be decided by [this Court].’” Commonwealth v. Barker, 275 Va. 529, 

536, 659 S.E.2d 502, 505 (2008) (quoting Alliance to Save the Mattaponi v.Commonwealth, 270 

Va. 423, 442, 621 S.E.2d 78, 88 (2005)). 
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is apparent that the legislative intent is otherwise.” Phelps v. Commonwealth, 275 Va. 139, 142, 

654 S.E.2d 926, 927 (2008) (citations omitted). And “we must assume that ‘the legislature 

chose, with care, the words it used when it enacted the relevant statute, and we are bound by 

those words as we interpret the statute.’” Rasmussen v. Commonwealth, 31 Va. App. 233, 238, 

522 S.E.2d 401, 403 (1999) (quoting Frazier v. Commonwealth, 27 Va. App. 131, 135, 497 

S.E.2d 879, 881 (1998)). Furthermore, it is our “duty . . . ‘to interpret the several parts of a 

statute as a consistent and harmonious whole so as to effectuate the legislative goal.’” Oraee v. 

Breeding, 270 Va. 488, 498, 621 S.E.2d 48, 52 (2005) (quoting Virginia Elec. & Power Co. v. 

Board of County Supervisors of Prince William County, 226 Va. 382, 387-88, 309 S.E.2d 308, 

311 (1983)). Thus, we “‘will look to the whole body of [a statute] to determine the true intention 

of each part.’” Id. (quoting McDaniel v. Commonwealth, 199 Va. 287, 292, 99 S.E.2d 623, 627 

(1957)). 

 Under the Virginia Workers’ Compensation Act, a claimant may be paid compensation 

from time to time for various periods of disability under successive awards arising from the same 

compensable injury, as occurred in this case. Code § 65.2-708(A) contemplates a succession of 

awards by authorizing the commission to “review any award”6

 upon “the ground of a change in 

condition,”7

 and “on such review . . . make an award ending, diminishing or increasing the 

 6 See United States v. Gonzales, 520 U.S. 1, 5 (1997) (“Read naturally, the word ‘any’ 

has an expansive meaning, that is, one or some indiscriminately of whatever kind.” (citation and 

internal quotation marks omitted)); Rubin v. Gochrach, 186 Va. 786, 797, 44 S.E.2d 1, 5-6 

(1947) (“The words ‘any renewal’ [in the subject lease] are comprehensive, and logically include 

more than one renewal.”); Cox v. Cox, 16 Va. App. 146, 148, 428 S.E.2d 515, 516 (1993) (“The 

plain and unambiguous meaning of the word ‘any’ is one or more indiscriminately from all those 

of a kind.” (citation and internal quotation marks omitted)). 

7

 Pursuant to Code § 65.2-101, a “change in condition” is “a change in physical condition 

of the employee as well as any change in the conditions under which compensation was awarded, 

suspended, or terminated which would affect the right to, amount of, or duration of 

compensation.” 
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compensation previously awarded, subject to the maximum or minimum provided in this title 

. . . .” (Emphasis added.) Furthermore, the two-year statute of limitations under subsection A is 

tolled while the claimant receives compensation. Subsection A also provides, however, that (i) a 

“change in condition (cause of action) must occur” and (ii) the change-in-condition application 

must be filed “within twenty-four months from the date for which the last compensation was 

paid.” Whitten v. Mead Paperboard Products, 4 Va. App. 182, 186, 355 S.E.2d 349, 350 (1987). 

 The date for which compensation was last paid under any award is thus the determining 

factor as to whether a change-in-condition application is time-barred under Code § 65.2-708(A), 

subject to subsection C of the statute. Subsection C sets forth a caveat to the operation of the 

subsection A statute of limitations by providing that wages, when paid under the prescribed 

circumstances, are “considered compensation.” Code § 65.2-708(C). As a result, the payment of 

such wages tolls the statute of limitations in the same manner as the payment of compensation. 

This caveat, in turn, is subject to the condition that the wages will cease being treated as 

compensation at the point when “a period” of such payment of wages “exceed[s] twenty-four 

consecutive months.” Code § 65.2-708(C) (emphasis added). 

 In construing the word “a” in a similar statutory context, the Virginia Supreme Court 

recently stated that the “ordinary meaning” of this indefinite article is “‘any’ or ‘each.’” Phelps, 

275 Va. at 142, 654 S.E.2d at 927 (quoting Webster’s Third New International Dictionary 1 

(1993)). See In the Matter of Carroll, 705 N.E.2d 402, 404 (Ohio App. 1997) (holding that the 

statutory term, “a period of up to six months,” contemplates multiple periods and that the word 

“any” in the subject statute “means one out of many, i.e., an indefinite number”). 

The legislature was also specific when it defined the nature of the twenty-four-month 

period in Code § 65.2-708(C): the twenty-four months must be consecutive. The word 

“consecutive” means “successive; succeeding one another in regular order; to follow in 
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uninterrupted succession.” Black’s Law Dictionary 304 (6th ed. 1990); see also Am. Heritage 

Dictionary 313 (2d ed. 1982) (“Following one after another without interruption.”); Hudson v. 

Youell, 179 Va. 442, 465, 19 S.E.2d 705, 715 (1942) (Hudgins, J., dissenting) (quoting 

Webster’s Int’l Dictionary to define “consecutive” as ‘“[f]ollowing a train; succeeding one 

another in a regular order; having no interval or break; sequent’”). Each month of that 

twenty-four-month period must “follow in uninterrupted succession.’” Black’s Law Dictionary, 

supra, at 304. In other words, the statute does not permit a combination of multiple periods of 

shorter duration to end the tolling provisions of Subsection C. And, if multiple periods of shorter 

duration do not exhaust the twenty-four consecutive month period, it is illogical to think that a 

single period of shorter duration would do so. Had the General Assembly intended the statute to 

apply to any period of shorter duration, it simply would have omitted the word “consecutive” and 

defined the period as “not to exceed twenty-four months.” 

Accordingly, the Code § 65.2-708(A) statute of limitations runs anew under each 

successive award of compensation for a particular compensable injury, and is triggered on the 

last day for which compensation was paid. Subsection C, in providing for wages to be treated as 

compensation under subsection A, is likewise subject to application under each such award as 

subsection C supplements subsection A, A and C operating in conjunction with each other. 

Subsection C is not a stand-alone provision—it instead provides a definition for the tolling 

mechanism applied to subsection A, where a claimant has received wages (rather than 

compensation) as provided in subsection C. The Code § 65.2-708 change-in-condition/statute of 

limitations scheme thereby functions, in its entirety, on an award-by-award basis—not on what 

amounts to a hybrid award-by-award/injury-by-injury basis under the commission’s construction 

of the statute. 
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 Here, during three different periods following Gordon’s compensible injury, Ford paid 

Gordon wages equal to or more than his pre-injury wage for performing light-duty work while 

under awards for temporary partial disability. The first two such periods extended from October 

23, 2000 through January 3, 2001 and from April 1, 2002 through June 30, 2002. The third such 

period extended without interruption from April 20, 2003 through September 11, 2006, 

following the commission’s January 13, 2003 open-ended award of compensation to Gordon for 

partial disability. Therefore, during the first twenty-four months of this third period of Gordon’s 

light-duty employment for Ford, Gordon’s wages were to be “considered compensation” for 

purposes of tolling the Code § 65.2-708 statute of limitations. Code § 65.2-708(C). The statute 

of limitations was thus tolled through April 20, 2005, meaning Gordon’s change-in-condition 

application, filed in 2006, was not time-barred under the statute.8

 

III. CONCLUSION

 For these reasons, we reverse the commission’s decision and remand for further 

proceedings consistent with this opinion. 

 Reversed and remanded. 

 

 8

 Because neither of the first two periods during which Gordon worked in his light-duty 

position for Ford following his compensable injury extended for twenty-four consecutive 

months, as it did in the third period, we need not decide whether the subsection C tolling 

provision runs anew once a claimant has received the benefit of the provision for such a period 

of twenty-four consecutive months. 
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Haley, J., dissenting. 

 I respectfully dissent. I would hold Code § 65.2-708(C) provides only one extension of 

the statute of limitations contained in Code § 65.2-708(A) per compensable injury. Since the 

time provided by the statute of limitations, even with the extension contained in subsection C, 

expired before Gordon filed his claim, I would hold Gordon’s claim time-barred. 

 In relevant part, Code § 65.2-708 states: 

A. 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 be made after 

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

paid, pursuant to an award under this title . . . . 

* * * * * * * 

C. 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. 

 

 When examining the meaning of a statute, we look first to its plain language. Alcoy v. 

Valley Nursing Homes, Inc., 272 Va. 37, 41, 630 S.E.2d 301, 303 (2006). To this end, “we 

examine the statute in its entirety, rather than by isolating particular words or phrases.” Earley v. 

Landsidle, 257 Va. 365, 369, 514 S.E.2d 153, 155 (1999). The Court assumes the General 

Assembly carefully chose the terms used. Simon v. Forer, 265 Va. 483, 490, 578 S.E.2d 792, 

796 (2003). We may not “add language to the statute the General Assembly has not seen fit to 

include,” Jackson v. Fid. & Deposit Co., 269 Va. 303, 313, 608 S.E.2d 901, 906 (2005) (citation 

omitted), or give statutory terms of definite meaning “a construction that amounts to holding that 

the General Assembly meant something other than that which it actually expressed,” Lee County 
- 11 -

v. Town of St. Charles, 264 Va. 344, 348, 568 S.E.2d 680, 682 (2002). When the statutory 

language is clear, “we are bound by the plain meaning of that language.” Vaughn, Inc. v. Beck, 

262 Va. 673, 677, 554 S.E.2d 88, 90 (2001). The statutory interpretation at issue here concerns a 

pure question of law and so we review the commission’s decision de novo. Town of Waverly 

Law Enforcement v. Owens, 51 Va. App. 277, 280, 657 S.E.2d 161, 163 (2008). 

Code § 65.2-708(C) states that when an employee lacks the physical ability to perform 

his work because of a compensable injury, his employer provides him with other work suitable to 

his new capacity, and the wages from that work equal or exceed the pre-injury pay, those wages 

toll the statute of limitations for filing a change-in-condition application under Code 

§ 65.2-708(A) up to twenty-four months. See Scott v. Scott, 16 Va. App. 815, 818, 433 S.E.2d 

259, 261 (1993). An employee meeting the statutory conditions receives “an additional 

twenty-four months before the statute of limitations of Code § [65.2-708(A)] begins to run.” 

Greene v. Gwaltney of Smithfield, Inc., 13 Va. App. 486, 492, 413 S.E.2d 650, 654 (1992). 

Code § 65.2-708(C) “operates solely to extend the limitation period of Code § [65.2-708(A)] 

. . . . Code § [65.2-708(C)] has no applicability, except with reference to Code § [65.2-708(A)].” 

Cohen v. Fairfax Hosp. Ass’n, 12 Va. App. 702, 707, 407 S.E.2d 329, 332 (1991). The General 

Assembly enacted Code § 65.2-708(C) “to prevent employers from lulling partially disabled 

workers into a false sense of security . . . 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.” Nguyen v. Fairfax County Bd. of Supervisors, 26 Va. App. 100, 103, 493 

S.E.2d 391, 392 (1997) (citation omitted). 

 I would hold that the language of Code § 65.2-708(C) provides only one extension of the 

statute of limitations contained in Code § 65.2-708(A) per compensable injury. The Code 
- 12 -

contains this limitation by authorizing tolling of “a period not exceeding twenty-four consecutive

months.” Code § 65.2-708(C) (emphasis added). 

 Although the majority holds the General Assembly intended to permit multiple periods of 

extension, our case law shows the language of “a period” contemplates only one period. Our 

Supreme Court addressed this issue in Corns v. School Board of Russell County, 249 Va. 343, 

454 S.E.2d 728 (1995). There the Court considered the meaning of statutory language requiring 

“[a] probationary term of service for three years” for teachers. Id. at 349, 454 S.E.2d at 732. 

The Court held that while the phrase “service for three years” could “be interpreted as service in 

each of three intermittent school years . . . [t]he words ‘a term’ mean one such period.” Id.; see 

also Van Dresser v. Firlings, 24 N.E.2d 969, 970 (Mass. 1940) (“The word ‘period’ as applied to 

time carries with it the idea of the separation of a designated interval of time from the flow of 

time in general. The words ‘a period’ do not readily expand to include an irregular succession of 

times or periods of varying length . . . .”). As applied here, the language in Code § 65.2-708(C) 

of “a period” likewise means one period. It was not necessary for the General Assembly to use 

the word “one” to indicate one period. 

If the General Assembly had intended to permit multiple periods of tolling under Code 

§ 65.2-708(C), it could have easily done this by writing the statute to authorize “periods not 

exceeding twenty-four consecutive months.” It seems more rational to use the plural to mean the 

plural than to use the singular to mean the plural, as the majority holds. Long ago Justice 

Hudgins suggested as much when he remarked that “it would be unreasonable to state that 

‘periods’ refer to ‘one single term.’” Hudson v. Youell, 179 Va. 442, 465, 19 S.E.2d 705, 716 

(1942) (Hudgins, J., dissenting); cf. Rasmussen v. Commonwealth, 31 Va. App. 233, 237-39, 

522 S.E.2d 401, 403-04 (1999) (holding that where a scientific test took multiple samples to 

produce a single result and the statute gave the defendant the right to observe the “breath test,” 
- 13 -

“sample,” and “blood alcohol reading,” phrased in the singular, the defendant only had the right 

to see the final printed result). 

When combined with the language of a single period, the statutory grant of an extension 

“not exceeding twenty-four consecutive months” also evidences an intent to limit tolling to a 

defined period. Code § 65.2-708(C) (emphasis added). The term “not exceeding” is defined: 

“Usually a term of limitation only, denoting uncertainty of amount.” Black’s Law Dictionary

1061 (6th ed. 1990). Our Supreme Court has referred similarly to the term, calling it “clear 

words of limitation.” Southern Ry. Co. v. Commonwealth, 206 Va. 831, 836, 147 S.E.2d 72, 75 

(1966). Another court stated that “not exceeding” means an amount “shall not be more, but may 

be less.” Stuyvesant Ins. Co. v. Jacksonville Oil Mill, 10 F.2d 54, 56 (6th Cir. 1926). The court 

remarked that any other interpretation “does violence to the plain and unambiguous language.” 

Id. Still another court held that where a contract required a company to operate a business “for a 

period ‘not to exceed sixty days,’” any amount up to sixty days satisfied the contract. Union 

Liquors, Inc. v. Finkel & Lasarow, Inc., 113 P.2d 19, 21 (Cal. Ct. App. 1941). Thus, the words 

“not exceeding” in Code § 65.2-708(C) reveal the General Assembly’s intention to limit the 

tolling of the statute of limitations to up to, but no more than twenty-four consecutive months. 

See also Rohanna v. Commonwealth, 168 Va. 696, 701, 190 S.E. 171, 173 (1937) (holding that 

where a statute authorized a court to require a criminal defendant to give a bond for “a term not 

exceeding one year,” the court lacked power to require bonds beyond the term of the initial 

year); Cox v. Hagan, 125 Va. 656, 680, 100 S.E. 666, 674 (1919) (using “not exceeding” to refer 

to up to a maximum amount). Twenty-four consecutive months represents the maximum 

extension. 

The majority’s conclusion that the term “consecutive” means the period of extension 

described in Code § 65.2-708(C) runs until reaching twenty-four months ignores the statutory 
- 14 -

language of “not exceeding.” “The words ‘not exceeding,’ in themselves, are words not of grant 

or apportionment, but of limitation only, and standing alone are ordinarily so construed.” City of 

Kingsville v. Meredith, 103 F.2d 279, 281-82 (5th Cir. 1939); see also Boston & M.R.R. v. 

United States, 265 F. 578, 579 (1st Cir. 1920). “The words denote uncertainty of amount. Such 

language imposes no duty to adopt the maximum amount rather than some lesser amount 

authorized.” Saxhaug v. County of Jackson, 10 N.W.2d 722, 724 (Minn. 1943) (citation 

omitted). The plain meaning of a term “not exceeding twenty-four consecutive months” is a 

period up to, but no more than twenty-four consecutive months.9 See Chiles v. Phelps, 714 

So. 2d 453, 459 (Fla. 1998) (stating that a provision of the Florida Constitution limiting special 

sessions of the legislature to a period that “shall not exceed twenty consecutive days” set “only 

outer limits on the length of special sessions”). Any length of time from a day to two years is a 

period not exceeding twenty-four consecutive months. As the dictionary states, the time is 

unspecified. Yet for the majority, the statute specifies a twenty-four-month period. This 

changes the language of “a period not exceeding twenty-four consecutive months” to “a period 

equal to twenty-four consecutive months.” I cannot reconcile “not exceeding” with “equal to.” 

It may be objected that the statute could allow multiple single periods not exceeding 

twenty-four consecutive months based on new awards consistent with the above interpretation of 

language. Such an objection fails because of the absurd results it produces plainly contrary to 

the intent of the General Assembly. 

Indeed, an enormous problem in this case is that both the majority and commission 

interpretations cause potentially absurd results under the statute. Our Supreme Court has 

 9

 Consecutive is defined: “Successive; succeeding one another in regular order; to follow 

in uninterrupted succession.” Black’s Law Dictionary, supra, at 304; see also Hudson, 179 Va. 

at 465, 19 S.E.2d at 715 (Hudgins, J., dissenting) (quoting Webster’s International Dictionary to 

define “consecutive” as “‘[f]ollowing in a train; succeeding one another in a regular order; 

having no interval or break; sequent’”). 
- 15 -

repeatedly cautioned that “a statute should never be construed in a way that leads to absurd 

results.” Meeks v. Commonwealth, 274 Va. 798, 802, 651 S.E.2d 637, 639 (2007). An absurd 

result is one “in which the law would be internally inconsistent or otherwise incapable of 

operation.” Cook v. Commonwealth, 268 Va. 111, 116, 597 S.E.2d 84, 87 (2004). Our Supreme 

Court construed language to avoid absurd results in Marsh v. City of Richmond, 234 Va. 4, 360 

S.E.2d 163 (1987). There a city charter permitted city council members to be reimbursed for 

their extraordinary expenses. Id. at 5, 360 S.E.2d at 164. The Court held the General Assembly 

intended that only unusual, unforeseen expenses had eligibility for reimbursement. Id. at 12, 360 

S.E.2d at 168. The Court acknowledged some expenses could be extraordinary simply because 

of the great expense incurred, but warned this situation would be rare. Id. To allow ordinary 

large expenses eligibility for reimbursement “might produce the absurd result that an item of 

expense, admittedly not of a kind or type intended . . . to be reimbursable and, in this sense, not 

extraordinary, may yet be found extraordinary and hence reimbursable simply because the 

claimant expends an exorbitant amount on the item.” Id. at 13, 360 S.E.2d at 168. “[T]he 

General Assembly did not intend such an absurd result.” Id. Similarly, in Valley Acceptance 

Corp. v. Glasby, 230 Va. 422, 431, 337 S.E.2d 291, 296 (1985), the Court found an absurd result 

would occur where a party could “escape the Act by doing exactly what it forbids.” It is 

apparent from these cases that where a construction would plainly go contrary to legislative 

intent in a substantial number of instances, such an interpretation represents an absurd result a 

court should avoid. 

The majority’s holding causes absurd results for several reasons. First, by holding tolling 

re-starts upon each award, the majority permits those having benefits reinstated after a 

termination for non-compliance with the Workers’ Compensation Act to benefit from that 
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disobedience.10 The notion that a court could construe a statute in a way so that violating the 

statute could work in a person’s self-interest was expressly repudiated in Valley Acceptance 

Corp. Second, the majority’s holding inverts the purpose of the statute of limitations by least 

aiding those the statute seeks to protect and most assisting those not requiring protection. As 

previously noted, Code § 65.2-708(C) exists “to prevent employers from lulling partially 

disabled workers into a false sense of security . . . 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.” Nguyen, 26 Va. App. at 103, 493 S.E.2d at 392 (citation omitted). 

Employees diligent in asserting their rights obviously lack a risk of having a “false sense of 

 10 An example of a way that an employee could gain a new tolling period under the 

majority’s holding by violating the Act is found in Code § 65.2-607. That section states: 

A. After an injury and so long as he claims compensation, 

the employee, if so requested by his employer or ordered by the 

Commission, shall submit himself to examination, at reasonable 

times and places, by a duly qualified physician or surgeon 

designated and paid by the employer or the Commission. . . . 

B. If the employee refuses to submit himself to or in any 

way obstructs such examination requested by and provided for by 

the employer, his right to compensation and his right to take or 

prosecute any proceedings under this title shall be suspended until 

such refusal or objection ceases and no compensation shall at any 

time be payable for the period of suspension unless in the opinion 

of the Commission the circumstances justify the refusal or 

obstruction. 

Under the majority’s holding, if an employee unreasonably refused a medical exam and so had 

benefits suspended, but then agreed to the exam, a new award ordering reinstatement of benefits 

would renew the tolling period, even though the issue only arose at all because of the employee’s 

disobedience to the Act. Such a result is plainly erroneous, for a person may not extend the 

tolling provisions otherwise applicable in the Act “by doing exactly what it forbids.” Valley 

Acceptance Corp., 230 Va. at 431, 337 S.E.2d at 296. 

While it is true that reinstatement of compensation after an employee’s breach of the Act 

resulted in termination would toll the statute of limitations under subsection A, such tolling 

would occur with or without the employee’s disobedience. On the other hand, the employee 

would not receive a new award—and hence an additional twenty-four months of tolling under 

subsection C—without the disobedience. 
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security.” Nonetheless, the majority’s holding benefits them the most by giving a new tolling 

period for each award.11 Conversely, employees at risk of being lulled into complacence receive 

the fewest tolling periods. This type of inverted result goes against the holding of Marsh that 

statutes are to be construed consistently with their purpose. Third, the majority’s holding permits 

employees to obtain twenty-four-month tolling periods indefinitely into the future since any 

award for any small period of time, even for something like a doctor’s appointment, gives an 

employee a new period of tolling.12 

The commission’s interpretation may cause absurd results since even such a brief break 

for a doctor’s appointment instantly terminates the single twenty-four-month period.13 This 

 11 The commission’s opinion also recognized that extending the tolling period upon later 

awards does not accord with the purpose of the Act. The commission wrote: 

Moreover, the purpose of Virginia Code 65.2-708(C) is to 

deter an employer from gaining an advantage by bringing an 

employee back to light duty at pre-injury wages and then 

terminating him after the statute of limitations has expired. We do 

not believe this purpose is served by interpreting the statute to 

provide that the tolling provisions begin to run anew after later 

periods of awarded disability. There was no finding that the 

claimant was lulled into a false sense of security causing his filing 

to be delayed. Additionally, the claimant has not been terminated 

by the employer. 

(Citations and internal quotation marks omitted). I agree with the commission in this regard. 

12 It is true that such brief absences could have the same indefinite tolling effect under 

Code § 65.2-708(A). Yet subsection A is not limited to a period not exceeding twenty-four 

consecutive months, whereas subsection C is. For this reason and reasons expressed later in this 

dissent, indefinite tolling under subsection C is problematic. 

13 In Crites v. Slurry Pavers, Inc., VWC File No. 202-99-47 (Feb. 15, 2005), cited with 

favor in the commission’s decision here, the claimant returned to work from a compensable 

injury in June 2001. He was laid off in November 2001, but returned to work in 2002. The 

commission stated “the statute of limitations was tolled for the consecutive period that he 

continued to earn his pre-injury wage while performing restricted duty--that is, until he was laid 

off in November of 2001.” This constituted the “consecutive period of receiving ‘compensation’ 

from the employer as contemplated by Code § 65.2-708(C).” In Phelps v. Safeway Stores, Inc., 

77 OWC 138 (1998), also cited with favor in the commission’s Gordon opinion, the commission 
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could happen to many employees soon after returning from an injury, making the tolling period 

meaningless because of its brevity. 

Thus, in the interpretations of both the majority and the commission, the General 

Assembly’s plain intent that employees receive a limited period of tolling fails in a manifest way, 

rendering the statute “incapable of operation.” Cook, 268 Va. at 116, 597 S.E.2d at 87. 

To avoid these pitfalls and effectuate the intent of the General Assembly, which 

represents “the paramount object of statutory construction,” Vollin v. Arlington County Electoral 

Bd., 216 Va. 674, 678-79, 222 S.E.2d 793, 797 (1976), I would hold the statute provides a single 

twenty-four-month period of tolling per compensable injury and that earnings at or above 

pre-injury levels from any light-duty work falling within these twenty-four months are 

considered compensation, regardless of whether any new awards or breaks from work occur 

within this period. The tolling begins when an employee returns to light-duty work at or above 

his pre-injury wages.14 For the next twenty-four months, those earnings are considered 

compensation. If the employee temporarily leaves work and then returns, the wages remain 

compensation. However, the single twenty-four month period permanently ends for that injury 

twenty-four-months from the start of light-duty work at or above pre-injury wages. 

This interpretation also accords with the principles of language expressed above. The 

statute’s language of “a period” finds fulfillment in a single period. The period does not exceed 

twenty-four months. Furthermore, the period is up to, but not exceeding twenty-four months 

 

wrote that Code § 65.2-708(C) “applies to the twenty-four consecutive months after a claimant 

returns to light-duty work without a wage loss.” 

14 I note I do not read the majority’s opinion, as Ford does on brief, to hold the relevant 

date for re-starting tolling to be the date of the award. Rather, the date the majority holds 

re-starts tolling is the date an employee returns to light-duty work at or above pre-injury pay after 

a period for which compensation has been or will be awarded. See Code § 65.2-708(A). As the 

majority states, the statute of limitations “is triggered on the last day for which compensation 

was paid.” 
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since an employee could leave work and not return before the period’s expiration. Such an 

employee would receive less than the full period in tolling. Finally, the twenty-four months run 

consecutively. 

Support for this interpretation as the fulfillment of the General Assembly’s intent 

becomes clearer when considered in light of workers’ compensation jurisprudence from other 

jurisdictions. 

Although Code § 65.2-708(C) became effective in 1989, the principle it contains has a 

long history. During the Great Depression, in Morrison v. Industrial Accident Commission, 29 

Cal. App. 2d 528, 537, 85 P.2d 186 (1938), it was written that “payment of wages to [an injured 

employee] . . . is likely to lull him into false hopes and cause him to delay presenting his claim 

until the statute of limitations has barred it.” 

To remedy these perceived ills, payments of wages to injured employees were held to toll 

the statute of limitations. Precisely when these wages operate a tolling, however, differs among 

jurisdictions. One leading treatise has summarized a general rule in this way: “A theoretically 

correct rule . . . would be this: Payment of wages tolls the statute if it was intended to be made on 

account of compensation liability, or if the employee reasonably believed it was so intended.” 

7 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 126.07[12] (2004). 

In enacting Code § 65.2-708(C), the General Assembly recognized the policy concerns 

necessitating the statute, but rejected case-specific factual inquiries in favor of a bright-line rule. 

Wages at or above pre-injury levels paid to an injured employee performing light-duty work are 

now considered compensation for up to twenty-four consecutive months. The statute balances 

the interests of employees and employers by (1) providing an automatic tolling for up to 

twenty-four consecutive months, while (2) limiting the tolling period to twenty-four consecutive 

months. 
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The majority’s holding eviscerates the balance struck by Code § 65.2-708(C). Rather 

than providing a rule for the benefit of employees and employers, the majority gives employees 

an essentially indefinite statute of limitations to file a change-in-condition application. While I 

recognize we liberally construe the Workers’ Compensation Act, Masonite Holdings, Inc. v. 

Cubbage, 53 Va. App. 13, 19, 668 S.E.2d 809, 812 (2008), that does not mean we ignore other 

considerations.15 As our Supreme Court has stated, the Act represents “a carefully balanced 

societal exchange between the interests of employers, employees, insurers, and the public.” 

Morris v. Morris, 238 Va. 578, 584, 385 S.E.2d 858, 862 (1989). It is also notable that the Act 

provides that of the three commission members, only one shall represent employees and only one 

shall represent employers. Code § 65.2-200(D). 

In summary, the language of Code § 65.2-708(C) provides one period of extension per 

compensable injury from the statute of limitations in Code § 65.2-708(A). The language 

authorizing “a period” rather than “periods” denotes a single period. Taken together, the words 

“not exceeding” and “consecutive” show the General Assembly desired an extension of the 

statute of limitations up to but no greater than twenty-four consecutive months. The 

twenty-four-month period starts when an employee begins light-duty work at or above pre-injury 

pay and the earnings from such work in the ensuing twenty-four months are considered 

compensation, regardless of whether breaks in work or other awards occur. After twenty-four 

months, the employee may not receive additional tolling for the injury that caused the tolling to 

occur. 

 15 The workers’ compensation regime is wholly a creature of statute. E.I. du Pont de 

Nemours & Co. v. Eggleston, 264 Va. 13, 17, 563 S.E.2d 685, 687 (2002). This Court does not 

re-weigh the General Assembly’s consideration of competing interests, for “[t]he calculus of 

effects, the manner in which a particular law reverberates in a society, is a legislative and not a 

judicial responsibility.” Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 272 (1979). 
- 21 -

 

 Here Gordon returned to light-duty work earning at or above his pre-injury wages in 

October 2000. This started the twenty-four-month tolling provision of Code § 65.2-708(C). For 

the next twenty-four months, the Code considered any wages Gordon received in this work at or 

above his pre-injury pay to be compensation. The twenty-four-month period expired in October 

2002 and could not be renewed thereafter based on the January 2000 injury. However, since 

Gordon last received payment pursuant to an award in February 2003, he had until February 

2005 to file an application based on a change in condition. Yet Gordon did not file his 

application until September 2006.16 This fell outside the time provided by the statute of 

limitations, and the commission correctly held the application time-barred. 

 For the foregoing reasons, I would affirm the judgment of the commission. 

16 As noted in the majority’s opinion, Gordon also earned greater than his pre-injury 

wage from April to June 2002. Even using these dates, the statute of limitations still bars 

Gordon’s claim since he would have needed to file by April 2006.