COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Bumgardner and 

 Senior Judge Hodges 

GEORGE LEE SEEKFORD 

 MEMORANDUM OPINION*

v. Record No. 0518-01-3 PER CURIAM 

 JULY 3, 2001 

HERSHEY TIRE COMPANY, INC. AND 

 RELIANCE INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Terry L. Armentrout; Armentrout & 

Armentrout, P.L.C., on brief), for appellant. 

 (Dale W. Webb; Monica L. Taylor; Gentry, 

Locke, Rakes & Moore, on brief), for 

appellees. 

 George Lee Seekford (claimant) contends that the Workers' 

Compensation Commission erred in finding that he failed to prove 

that the statute of limitations applicable to his 

change-in-condition application was tolled pursuant to Code 

§ 65.2-708(C). Upon reviewing the record and the briefs of the 

parties, we conclude that this appeal is without merit. 

Accordingly, we summarily affirm the commission's decision. See

Rule 5A:27. 

 Code § 65.2-708 required claimant to file his 

change-in-condition application within twenty-four months from 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 
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the last date for which he was paid compensation pursuant to an 

award. It was undisputed that claimant was last paid 

compensation pursuant to an award on June 15, 1997. It was also 

undisputed that he did not file his change-in-condition 

application until September 27, 1999, more than twenty-four 

months from the last date for which he was paid compensation 

pursuant to an award. Accordingly, unless the tolling provision 

contained in Code § 65.2-708(C) applied to extend the 

limitations period, claimant's September 27, 1999 application 

was time-barred. 

 Code § 65.2-708(C) provides as follows: 

 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) applies to a light duty or selective 

employment situation. If an employee, despite restrictions, can 

perform his or her pre-injury work for pre-injury wages, those 

wages are not considered compensation under the tolling 

provision." Nguyen v. Fairfax County Bd. of Supervisors, 26 Va. 

App. 100, 103, 493 S.E.2d 391, 392 (1997) (footnote omitted). 

 On June 10, 1997, claimant's treating physician, Dr. Donald 

P.K. Chan, released claimant to return to his pre-injury job, 

without restrictions, as of June 16, 1997. Claimant returned to 
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his pre-injury job and worked full duty from June 16, 1997 until 

September 1, 1999, without missing any time from work. He did 

not seek medical treatment during that time. "Though [his] 

method of work was easier, [his] duties were identical, and no 

evidence established that claimant sought or was provided light 

duty work." Id. at 104, 493 S.E.2d at 392 (footnote omitted). 

Thus, credible evidence established that claimant's post-injury 

job was not light duty or selective employment for the purpose 

of the tolling provision contained in Code § 65.2-708(C). 

 Moreover, based upon this credible evidence, the 

commission, as fact finder, was entitled to give little 

probative weight to Dr. Chan's statement in his March 1, 2000 

responses to claimant's counsel's written questions that 

claimant had been restricted and unable to engage in frequent 

heavy lifting since his release to return to work in June 1997. 

The record contained no explanation for Dr. Chan's change in his 

opinion regarding claimant's ability to work beginning in June 

1997. Furthermore, in response to written questions from 

employer dated March 1, 2000, Dr. Chan agreed that claimant had 

been released to return to work, full duty, effective June 16, 

1997. 

 In addition, the fact that the employer retrofitted its 

workplace with an airlift after claimant's accident and before

he returned to work on June 16, 1997, eliminating the need for 
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claimant to lift tires, did not necessitate a finding that 

claimant had been provided light duty or selective employment as 

of June 16, 1997, at a wage equal to or greater than his 

pre-injury wage. No evidence showed that employer retrofitted 

to accommodate claimant's disability or that it changed the 

essential duties of claimant's job. See id. at 103-04, 493 

S.E.2d at 392. 

 For these reasons, we affirm the commission's decision 

finding claimant's change-in-condition application untimely. 

Affirmed.