COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Ju dges Elder, Frank, Humphreys, Mc Clanahan, 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 WORKER S’ COMPENSATION COMMISSION Gregory E. Camden (Charlen e 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’ Co mpensation Commission’s rejection of his change-in-condition application for benefits as time barre d 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 th is statute “extends only once du ring 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. B ACKGROUND The relevant facts are not in dispute. Go rdon suffered a compensable injury by accident on January 9, 2000 while working at Ford’s produc tion plant in Norfolk. Based on this injury,- 2 - the commission entered a series of awards of compensation to Gordon for various periods of temporary total and temporary par tial disability. The last of th ese 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 restri ctions 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 producti on 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 applicatio n for benefits, in part, by arguing that it

was time-barred. Ford asserted that the claim wa s not filed within two years of Gordon’s last payment of compensation (February 23, 2003), that th is 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 appl ication was not time-barred because all the wages he received for the first tw enty-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 treat ed as compensation for purposes of subsection A of the statute, “for a period no t exceeding twenty-four consecutive months.”- 3 - compensation—with those first twenty-f our months ending on April 20, 2005. 2 Gordon

therefore asserted that the two- year statute of limitations in C ode § 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 Go rdon returned to work, in a light-duty position,

in October 2000. Ford reasoned that when Gor don was again awarded temporary total disability benefits in January 2001, the tolling provision wa s no longer applicable. Thus, Ford concluded, “thereafter, all claims for furthe r 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 wa s 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 late r periods of partial disability or temporary total disability fo r which awards are entered.” Ford appealed the deputy commissioner’s decision to the full commission. The commission held that Gordon’s change-in-c ondition application was time-barred. The commission explained its holding as follows:

We have held that the term “c onsecutive” in § 65.2-708(C) means “following successively w ithout 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 (Feb ruary 15, 2005) (finding the

2 This last period (April 20, 2003 to Septem ber 11, 2006) of the three different periods that Gordon worked for Ford in a light-duty cap acity following his compensable injury was the only period that exceeded twenty-four consecutive months.- 4 - statute tolled only for one cons ecutive period). We have additionally held that th is section provides “ an extended limitation period” and the consecutive twen ty-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 th e statute referri ng 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, th e Code § 65.2-708(C) tolling provision does not “‘begin to run anew’ after later periods of awar ded 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 disa bility that may arise from the injury. This appeal followed.

II. A NALYSIS Under Code § 65.2-708(A), 4 a party may ask the commissi on 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 whic h compensation was paid, pursuant to an award under this title . . . .” Code § 65.2-708(A). As such, the twenty-four-mon th limitation of Code § 65.2-708 “is not a statute of limitations in the or dinary 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 w ith 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 increasi ng the compensation previously awarded, subject to the maximum or minimum provided in this title . . . . No such review sha ll be made after twenty-four months from the last day for which comp ensation was paid, pursuant to an award under this title . . . .- 5 - 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, operate s as a tolling provisi on that extends this limitation. This tolling is effected by an expand ed definition of compen sation 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 pr ovided him light-duty work at wages equal to or greater than his pre-injury wage. However, the parties disagree as to th e meaning of the phrase “for a period not exceeding twenty-four consecu tive months” in Code § 65.2-708(C) as applied

in this case. 5

Under well-settled rules of st atutory construction, “we consid er the language of a statute to determine the General Assembly’s intent fr om the plain and natura l 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, “wor ds [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] i ssue does not invoke the [commissi on’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)).- 6 - is apparent that the legisla tive 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 en acted the relevant stat ute, and we are bound by

those words as we inte rpret 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 “dut y . . . ‘to interpret th e 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 aw ard 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 what ever 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 indiscrimi nately from all those of a kind.” (citation and intern al quotation marks omitted)).

7 Pursuant to Code § 65.2-101, a “change in c ondition” is “a change in physical condition of the employee as well as any change in th e conditions under which compensation was awarded, suspended, or terminated which would affect the right to, amount of, or duration of compensation.”- 7 - compensation previously awarded, subject to the maximum or mi nimum provided in this title . . . .” (Emphasis added.) Furthermore, the tw o-year statute of limitations under subsection A is

tolled while the claimant receiv es compensation. Subsection A also provides, however, that (i) a “change in condition (cause of action) must occu r” and (ii) the change -in-condition application must be filed “within twenty-f our 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 pa id under any award is thus the determining factor as to whether a change -in-condition application is ti me-barred under Code § 65.2-708(A), subject to subsection C of the st atute. 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 th e same manner as the payment of compensation. This caveat, in turn, is subject to the condi tion 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 st atutory context, the Virginia Supreme Court recently stated that the “ordinary meaning” of th is 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- 8 - uninterrupted succession.” Black’s Law Dictionary 304 (6th ed. 1990); see also Am. Heritage Dictionary 313 (2d ed. 1982) (“Following one af ter another without interruption.”); Hudson v.

Youell , 179 Va. 442, 465, 19 S.E.2d 705, 715 (1942) (H udgins, 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 “follo w in uninterrupted succession.’” Black’s Law Dictionary , supra , at 304. In other words, the statute does no t permit a combination of multiple periods of shorter duration to end the tolling provisions of Subsection C. And, if mu ltiple periods of shorter duration do not exhaust the twenty-f our consecutive month period, it is illogical to think that a single period of shorter duration would do so. Had the General A ssembly 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) statut e 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. Subsec tion C, in providing for wa ges to be treated as compensation under subsection A, is likewise su bject 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-al one 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-i n-condition/statute of limitations scheme thereby functions, in its en tirety, on an award-by-award basis—not on what amounts to a hybrid award-by-awar d/injury-by-injury basis unde r the commission’s construction

of the statute.- 9 - Here, during three different periods followi ng Gordon’s compensible injury, Ford paid Gordon wages equal to or more than his pre-in jury wage for performing light-duty work while under awards for temporary partial disability. Th e 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 fr om 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, dur ing the first twenty-four months of this third period of Gordon’s light-duty employment for For d, 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 Apr il 20, 2005, meaning Gordon’s change-in-condition application, filed in 2006, was not time-barred under the statute. 8

III. C ONCLUSION For these reasons, we reverse the co mmission’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 inju ry extended for twenty-four consecutive months, as it did in the thir d period, we need not decide wh ether the subsection C tolling provision runs anew once a claimant has received the benefit of the provision for such a period of twenty-four cons ecutive months.- 10 - Haley, J., dissenting. I respectfully dissent. I would hold Code § 65.2-708(C) provides only one extension of

the statute of limitations contai ned in Code § 65.2-708(A) per co mpensable injury. Since the time provided by the statute of lim itations, even with the extensi on 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 hi s 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 languag e to the statute the General A ssembly 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 m eaning “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 issu e 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 empl oyee lacks the physical ability to perform his work because of a compensable injury, his empl oyer 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 stat utory conditions receives “an additional twenty-four months before the statute of limita tions 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 exte nd the limitation period of Code § [65.2-708(A)] . . . . Code § [65.2-708(C)] has no applicability, ex cept 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 preven t employers from lulling partially disabled

workers into a false sense of security . . . by providing employ ees light duty work at their pre-injury wage for two years and then terminating the employ ee 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 Asse mbly intended to permit multiple periods of extension, our case law shows the language of “a period” contempl ates 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 phr ase “service for three years” coul d “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 ti me from the flow of time in general. The words ‘a period’ do not re adily expand to include an irregular succession of times or periods of varying length . . . .”). As applied here, the langua ge 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 seem s 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 unreas onable 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 th e statute gave the defendant the ri ght 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 gr ant of an extension

“ not exceeding twenty-four consecutive months” also ev idences 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 referre d 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 exceedin g” 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 limitati ons 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 cour t 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 reachi ng 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 st anding alone are ordinar ily 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 word s denote uncertainty of amount. Such language imposes no duty to adopt the maximu m 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 tw enty-four consecutive months. 9 See Chiles v. Phelps , 714 So. 2d 453, 459 (Fla. 1998) (stating that a provisi on of the Florida Constitution limiting special sessions of the legislature to a period that “s hall not exceed twenty consecutive days” set “only outer limits on the length of speci al 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 majo rity, the statute specifies a twenty-four-month period. This changes the language of “a period not exceeding tw enty-four consecutive months” to “a period equal to twenty-four consecutive months.” I can not reconcile “not exceeding” with “equal to.” It may be objected that the statute could allow multiple single periods not exceeding twenty-four consecutive months ba sed on new awards consistent w ith 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 cas e is that both the majority and commission interpretations cause potentially absurd results under the statute. Our Supreme Court has

9 Consecutive is defined: “Successive; succeedin g one another in regula r 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 stat ute 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 inconsiste nt 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 Cour t held the General Assembly intended that only unusual, unforeseen expens es 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 warn ed this situation would be rare. Id. To allow ordinary large expenses eligibility for reimbursement “mi ght produce the absurd re sult 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 Ac t by doing exactly what it forbids.” It is apparent from these cases that where a constr uction would plainly go co ntrary 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 fo r several reasons. Firs t, by holding tolling re-starts upon each award, the majority permits those having benefits reinstated after a termination for non-compliance w ith the Workers’ Compensation Act to benefit from that- 16 - 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 sel f-interest was expres sly 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 thos e 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 term inating 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 th eir 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 f ound 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 compen sation and his right to take or prosecute any proceedings under this title shall be suspended until such refusal or objection ceases a nd 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 unr easonably 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 issu e only arose at all becau se 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 di sobedience. On the other hand, the employee would not receive a new award—and hence an ad ditional twenty-four months of tolling under subsection C—without the disobedience.- 17 - security.” Nonetheless, the majority’s holdi ng benefits them the most by giving a new tolling period for each award. 11 Conversely, employees at risk of be ing lulled into complacence receive the fewest tolling periods. This type of inverted result goes ag ainst 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 pe riods 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 absu rd results since even such a brief break for a doctor’s appointment instantly termin ates 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 gaini ng 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 an ew 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 s ubsection 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 cl aimant 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 pe riod 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 th e “consecutive period of receiving ‘compensation’ from the employer as contemplat ed 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- 18 - could happen to many employees soon after returning from an in jury, 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 th e intent of the Gene ral Assembly, which represents “the paramount objec t of statutory construction,” Vollin v. Arlington County Electoral

Bd. , 216 Va. 674, 678-79, 222 S.E.2d 793, 797 (1976), I woul d hold the statute provides a single twenty-four-month period of tolling per compensa ble 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 whethe r 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 m onth period permanently ends for that injury twenty-four-months from the start of light-dut y work at or above pre-injury wages. This interpretation also accords with the pr inciples 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 tw enty-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 ha s 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.”- 19 - since an employee could leave work and not retu rn 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 fulf illment 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 effectiv e in 1989, the principle it contains has a long history. During th e 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 wa ges to injured employees were held to toll the statute of limitations. Precisely when thes e wages operate a tolli ng, 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 be lieved 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 reject ed 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 automa tic tolling for up to twenty-four consecutive months, while (2) limitin g the tolling period to twenty-four consecutive

months.- 20 - The majority’s holding eviscerates the bala nce struck by Code § 65.2-708(C). Rather than providing a rule for the be nefit 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, th e Act represents “a carefully balanced societal exchange between the interests of empl oyers, 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 comm ission 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 th an “periods” denotes a single pe riod. 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 m onths are considered compensation, regardless of whether breaks in work or other awar ds 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 c onsideration of competing intere sts, for “[t]he calculus of effects, the manner in which a particular law reve rberates 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 ear ning 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 peri od expired in October

2002 and could not be renewed th ereafter 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 Go rdon 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 appli cation time-barred. For the foregoing reasons, I would affi rm the judgment of the commission.

16 As noted in the majority’s opinion, Gordon also earned greater th an his pre-injury wage from April to June 2002. Even using thes e dates, the statute of limitations still bars Gordon’s claim since he would have needed to file by April 2006.