COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Russell and AtLee Argued at Fredericksburg, Virginia

NORTHAMPTON COUNTY AND VIRGINIA ASSOCIATION OF COUNTIES GROUP SELF-INSURANCE MEMORANDUM OPINION * BY v. Record No. 0542-15-4 JUDGE RICHARD Y. ATLEE, JR. OCTOBER 20, 2015 MARK SOMERS

FROM THE VIRGINIA WORK ERS’ COMPENSATION COMMISSION J. David Griffin (Winchester Law Group, P.C., on briefs), for appellant. Michael A. Kernbach (Law Office of Michael A. Kernbach, P.C., on brief), for appellee.

Northampton County and the Virginia A ssociation of Counties Group Self-Insurance (collectively, “employer”) appeal a decisi on of the Virginia Workers’ Compensation Commission (“the commission”) in favor of Mark Somers (“claimant”). For ease of discussion, we condense employer’s five assignments of error into three: (1) clai mant’s second claim for temporary total disability (“TTD ”) was barred by the statute of limitations, (2) the commission erred by not adopting and enforci ng discovery rules, and (3) cl aimant’s second claim for TTD was not supported by sufficient evidence. 1 Because we agree that the statute of limitations barred claimant’s second claim, we re verse in part and affirm in part.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 Employer’s final assignment of error specifi cally alleges: “The Commission erred in ruling that the claimant has sustai ned his burden of proof that entitl es him to a lost time award.” The breadth of this assignment makes it unclear , because claimant ultimately claimed multiple periods of lost time: TTD from March 8, 2012 to July 29, 2012; temporary partial disabililtyUNPUBLISHED- 2 - I. B ACKGROUND As the parties are fully conversant with the record in this case and because this memorandum opinion carries no precedential value, we recite only those facts and incidents of the proceedings as are necessary to the parties’ understa nding of the dispositi on of this appeal. “On appeal, this Court views th e evidence in the light most fa vorable to the prevailing party below.” Town & Country Hosp., LP v. Davis, 64 Va. App. 658, 660, 770 S.E.2d 790, 791 (2015). In this case, claimant prevailed below. “‘Factual find ings by the commission that are supported by credible evidence are conclusive a nd binding upon this Court on appeal.’” Nurses 4 You, Inc. v. Ferris, 49 Va. App. 332, 339, 641 S.E.2d 129, 132 (2007) (quoting Southern Iron Works, Inc. v. Wallace, 16 Va. App. 131, 134, 428 S.E.2d 32, 34 (1993)). So viewed, the facts are as follows. Cl aimant was a Northampton County Sheriff’s deputy working at the local jail. In 2013, he filed a claim a lleging compensable occupational heart disease. Claimant sought medical benefi ts and TTD from March 8, 2012 (the date of his diagnosis) through July 29, 2012. A hearing on his claim was rescheduled several times, and the parties had discovery disagreements. On Marc h 6, 2014, employer sent a letter to the chief deputy commissioner stating: “After continued study and consultation, the Carrier has agreed to accept the claimant’s claim as compensable. A sti pulated Order is being prepared and circulated

from July 30, 2012 to March 5, 2014; and TTD from March 6, 2014 and continuing. The commission made no award for the period from July 30, 2012 to March 5, 2014, and employer ultimately conceded that claimant was entitled to an award from March 8, 2012 to July 29, 2012. Employer’s briefs focus on the final period of TTD, which the commission ultimately awarded from May 8, 2014 and continuing. Therefore, this opinion interprets the above-quoted assignment of error to mean that employer objects to the TTD awarded for the period from May 8, 2014 and continuing.- 3 - so that further rescheduling of the matter is not necessary.” Clai mant never signed the “stipulated Order” circulated by employer. 2 On April 8, 2014, claimant requested compen sation for the initial period of TTD (from March 8, 2012 to July 29, 2012) as well as, for the first time, temporary partial disability from July 30, 2012 to March 5, 2014, and TTD from Marc h 6, 2014 and continuing. All matters were set for a hearing on August 14, 2014. At the hearing on August 14, 2014, employer apparently offered as an exhibit 3 a document entitled “Stipulation” which stated: “The defendants stipulate that the claimant’s July 25, 2013 application is accepted and th e claimant is entitled to a medical award for heart disease,

and a lost time award for TTD from March 8, 2012-July 29, 2012. The employer requests a

2 Employer took two separate steps. First, it wrote the letter quoted above to the chief deputy commissioner, accepting compensability of th e claim. This acceptance of compensability did not include any agreement as to the specific amount or rate of compensation. Next, employer apparently drafted a “stipulated Order” and se nt such draft order to claimant. (We say “apparently” because the appendix does not include the draft order.) This draft order apparently did include a proposed agreement as to compen sation, and because claimant was uphappy with the terms contained in the draft order, he did not endorse it. This draft order was a proposed stipulation, rather than a sti pulation. (A stipulat ion is “‘an agreement between counsel respecting business before a court.’” Lane v. Lane, 32 Va. App. 125, 129, 526 S.E.2d 773, 775 (2000) (quoting Burke v. Gale, 193 Va. 130, 137, 67 S.E.2d 917, 920 (1951))). In this case, there is no dispute that no agreement was reache d, with claimant noting before us “[w]hen the [proposed] stipulation was received by [c laimant], it was rejected outright and there was never any agreement as to the original claim until the time of the hearing on August 14, 2014 and even then, there was no agreement as to the wage inde mnity claim.” (Emphasis added). As the draft “stipulated Order” was not e ndorsed by both parties, it bound neither. However, employer’s unilateral written accepta nce of compensability of the claim was not contingent upon the occurrence of any other event, and it became binding upon employer at the time the chief deputy commissioner received it.

3 The record is unclear. The undated documen t is included in the appendix and has a handwritten notation at the bottom labeling it “Comm’s exhibit.” Th e transcript from the hearing does not indicate that such exhibit was offered or admitted into evidence. The chief deputy commissioner acknowledged the substance of th e document, however, stating: “We have stipulations that the claimant has suffered compensable heart disease and the claim is accepted and is entitled to an award of be nefits. An agreement to a peri od of temporary total disability from March 8 th through July 29 th 2012.”- 4 - credit 4 when the time is reinstated.” However, em ployer alleged that the additional claims made by claimant on April 8, 2014 were barred by the tw o-year statute of limitations, which expired on March 8, 2014. The chief deputy commissioner disagreed, and found claimant’s April 8, 2014 claim to be a change in condition ap plication, rather than a new claim. The chief deputy commissioner awarded claima nt “temporary total disability during the period from March 9, 2012 through July 29, 2012, and beginning May 8, 2014 and continuing until conditions justify a modification, su spension or termination thereof.” 5 He also awarded claimant medical benefits for occupational heart disease “for as long as necessary pursuant to Va. Code § 65.2-603.” The full commission subse quently affirmed the opinion of the chief deputy commissioner. In explaining its determin ation that the April 8, 2014 claim was a change in condition claim, th e commission stated: At the hearing, the defendants stipulated the disease was compensable and [claimant] was entitled to temporary total disability benefits from Ma rch 9, 2012 through July 29, 2012. These findings could have been made based upon the July 2013 hearing request without defendants’ agreement. After his return to work, the partially disabled claimant worked light duty without wage loss until March 6, 2014 when the employer placed him on leave. The claimant’s April 8, 2014 claim was timely as a change in condition claim. This appeal followed.

4 The chief deputy commissioner denied em ployer’s request for a credit, a finding employer did not appeal to the full commission.

5 No compensation was awarded for the period of July 30, 2012 to March 5, 2014.- 5 - II. A NALYSIS A. Standard of Review This case requires us to review the commission’s interpretati on of statutes, a question of

law we review de novo . Ford Motor Co. v. Gordon, 281 Va. 543, 549, 708 S.E.2d 846, 850 (2011). Although “the practical constructio n given to a statute by public officials charged with its enforcem ent is entitled to great weight by the courts and in doubtful cases wi ll be regarded as decisive,” Southern Spring Bed Co. v. St ate Corp. Comm’n, 205 Va. 272, 275, 136 S.E.2d 900, 902 (1964), “when an issue involves a pure question of statutory interpretati on, that issue does not invoke the agency’s specialized competence but is a question of law to be decided by the courts.” Alliance to Save the Mattaponi v. Commonwealth, 270 Va. 423, 442, 621 S.E.2d 78, 88 (2005). Commonwealth v. Barker, 275 Va. 529, 536, 659 S.E.2d 502, 505 (2008). In interpreting the statutes at issue in this case, howeve r, we must be guided by the purpose and principles underlying the Workers’ Compensation Act. “The purpose of the [Workers’ Co mpensation] Act is to protect employees.” Turf Care, Inc. v. Henson, 51 Va. App. 318, 336, 657 S.E.2d 787, 795 (2008) (citing Elli s v. Commonwealth Dep’t of Highways, 182 Va. 293, 303, 28 S.E.2d 730, 734 (1944)). “Thus, it is to be ‘construed liberally and favorably as to’ employees.” Id. (quoting Ellis, 182 Va. at 303, 28 S.E.2d at 734); see also Hospice Choice, Inc. v. O’Quin, 42 Va. App. 598, 603, 593 S.E.2d 554, 556 (2004) (“[W]e are guided by the general principle that the Workers’ Compensation Act is to be construed liberally in favor of the employee.” (citing Creative Dimensions Group v. Hill, 16 Va. App. 439, 442, 430 S.E.2d 718, 720 (1993))); 7-Eleven, Inc. v. Dep’t of Envtl. Quality, 42 Va. App. 65, 75, 590 S.E.2d 84, 89 (2003) (en banc) (“‘Further, it is a universal rule that statutes . . . which are remedial in nature, are to be construed liberally, so as to suppress the mischief and advance the remedy, as the legislature intended.’” (quoting Bd. of Sup. v. King Land Corp., 238 Va. 97, 103, 380 S.E.2d 895, 897-98 (1989))). Prince William Cty. Sch. Bd. v. Rahim, 58 Va. App. 493, 501, 711 S.E.2d 241, 245 (2011) ( en banc ) (alterations in original), aff’d, 284 Va. 316, 733 S.E.2d 235 (2012). Notwithstanding the- 6 - liberal construction we must give to the Worker s’ Compensation Act, “we have a duty, whenever possible, to interpret the several parts of a statute as a consistent and harmonious whole so as to effectuate the legislative goal. . . . [T]he various parts of the st atute shall be harmonized so that, if practicable, each is given a sensible and in telligent effect.” Id. at 500, 711 S.E.2d at 245 (quoting Ford Motor Co., 281 Va. at 549-50, 708 S.E.2d at 850). B. Statute of Limitations Employer’s statute of limitations argument is dispositive. Code § 65.2-406(A) addresses the relevant limitation period controlling the fili ng of initial claims for compensation under the Workers’ Compensation Act. That Code section states: The right to compensation under th is chapter shall be forever barred unless a claim is filed wi th the Commission within one of the following time periods:

* * * * * * *

6. For all other 6 occupational diseases, tw o years after a diagnosis of the disease is first communicated to the employee or within five years from the date of the last injurious exposure in employment, whichever first occurs. Pursuant to Code § 65.2-400(A), an “occupational disease” is “a dise ase arising out of and in the course of employment, but not an ordinary disease of life to wh ich the general public is exposed outside of the employment.” Code § 65.2-402(B) establishes the presumption present in this

case: Hypertension or heart disease caus ing the death of, or any health condition or impairment resulting in total or partial disability of . . . (iv) sheriffs and deputy sher iffs . . . shall be presumed to be occupational diseases, suffered in th e line of duty, that are covered

6 The “other” diseases, listed in paragr aphs 1 through 5, respectively, of Code § 65.2-406(A), are pneumoconiosis, by ssinosis, asbestosis, human i mmunodeficiency virus, and “diseases directly attributable to the rescue and relief efforts at the Pentagon following the terrorist attack of September 11, 2001.”- 7 - by this title unless such presumption is overcome by a preponderance of competent evidence to the contrary. Employer conceded that claimant’s July 25, 2013 cl aim for heart disease was compensable. The claim was governed by the statute of limitations in Code § 65.2-406(A)(6), requiring the filing of a claim within “two years after a diagnosis of the disease is first communicated to the employee.” Because the date of communication was March 8, 2012, the statute of limitations for the initial claim expired on March 8, 2014. Claimant filed a claim on April 8, 2014. The chief deputy commissioner found this to be a change in condition claim, not a new claim. A “change in condition” is a term of art. Code § 65.2-708 governs change in condition claims and states in part: A. Upon its own motion or upon th e application of any party in interest, on the ground of a cha nge in condition, the Commission may review any award of compensation and on such review may make an award ending, diminishing or increasing the compensation previously awarded . . . . No such review shall be made after 24 months from the last day for which compensation was paid, pursuant to an award unde r this title, except [in certain situations not present here]. The commission erroneously found claimant’s Ap ril 8, 2014 claim to be a change in condition claim, a finding that had the practical effect of extending the statute of li mitations significantly. By the terms of Code § 65.2-708(A), there must be some previous award to modify in order for

the commission to address a clai m as a change in condition. 1. Subsection C of Code § 65.2-708 In his brief and again at oral argument, claimant asserts that subsection C of Code § 65.2-708 transmutes his April 8, 2014 claim from a new claim into a change in condition claim. Code § 65.2-708(C) states: All wages paid, for a period not exceeding 24 consecutive months, to an employee (i) who is physic ally unable to return to his pre-injury work due to a compen sable injury and (ii) who is provided work within his capacity at a wage equal to or greater- 8 - than his pre-injury wage shall be considered compensation paid pursuant to an award for compensation . . . . From July 30, 2012 until March 5, 2014, employer accommodated claimant and allowed him to work in a light-duty position. No award wa s in place at the time of the accommodation. Claimant argues that Code § 65.2-708(C) means that all of the wages paid by employer to claimant during this period must be “treated as ‘compensation.’” Viewing subsection C in this manner would mean that any subsequent claim w ould be treated as a change in condition under subsection A of Code § 65.2-708. More significantly for claima nt, viewing subsection C this way would mean that the statute of limitati ons would not begin running until March 6, 2014, and would not end until March 6, 2016, thus preserving a ll of the claims made by claimant on April 8, 2014. Claimant’s analysis is faulty, however , and it misinterprets the relationship between subsections A and C of Code § 65.2-708. This Court explained the in terplay between those two s ubsections in Rahim. In explaining the purpose of subsection C, this Cour t observed: “‘Code § 65.2-708(C) operates as a tolling provision that extends subsection A’ s limitation by expanding the definition of “compensation” under subsection A to include wa ges which meet certain conditions.’” Rahim, 58 Va. App. at 502, 711 S.E.2d at 246 (quoting Ford Motor Co., 281 Va. at 550, 708 S.E.2d at 850). Furthermore, “the two subsections ‘operat[e] in conjunction with e ach other. Subsection C is not a stand-alone provision — it instead pr ovides a definition for the tolling mechanism applied to subsection A, where a claimant has received wages (rather than compensation) as provided in subsection C.’” I d. at 503, 711 S.E.2d at 246 (altera tion in original) (quoting Ford Motor Co., 281 Va. at 551, 708 S.E.2d at 851 (quo ting Gordon v. Ford Motor Co., 55 Va. App. 363, 373, 685 S.E.2d 880, 885 (2009))). Finally, this Court held: “Therefore, once an award is

entered , the statute of limitations provided in Code § 65.2-708(A) then begins to run after the- 9 - date of the entry of the award from either the date compensation was last paid pursuant to the award or pursuant to subsection C.” Id. at 506, 711 S.E.2d at 247-48 (emphasis added). 7

A claimant cannot invoke subsection C of Code § 65.2-708 unless there has been a previous award of compensation. We are left to determine if an award of compensation was paid during this two-year period.

2. De Facto Awards There are two types of compensation award: de jure and de facto . A de jure award of compensation is an actual award by the commi ssion. Neither party asse rts that the commission

made a de jure award between March 8, 2012 and March 8, 2014. That leaves open the question

of whether there was a de facto award in place during that time.

“A de facto award is a legal ficti on crafted by the courts, ‘a creature of case law not statutory law.’” Lysable Transp., Inc. v. Patton, 57 Va. App. 408, 414, 702 S.E.2d 596, 598 (2010) (quoting Ryan’s Family Steak Hous es v. Gowan, 32 Va. App. 459, 465, 529 S.E.2d 720, 723 (2000) (Bumgardner, J., concurring)). “The de facto award doctrine permits the commission to impute an award based on an actual agreement or stipulation. . . . [A]n actual agreement or

7 The primary issue in Rahim was the meaning of the portion of Code § 65.2-708(A) stating that “the Commission may review any award . . . .” Specifi cally, the question was whether the phrase “any award” meant only an awar d of compensation, or whether the term also encompassed a medical-only award. This Court found that the phrase “an y award” encompassed both an award of compensation a nd a medical-only award and that a medical-only award within the twenty-four-month period, even in the absenc e of any award of compensation, was sufficient to toll the statute of limitations and to permit a claimant to invoke subsection C. In 2013, the year after the Supreme Court’ s affirmance of this Court’s en banc decision in Rahim, the General Assembly amended Code § 65.2-708(A), changing the relevant phrase to read that “the Commission may review any award of compensation . . . .” (Emphasis added). 2013 Va. Acts ch. 445. The General Assembly also amended subsection C of Code § 65.2-708. Id. Although these amendments affect Rahim’s holding as to whether a medical-onl y award, without more, can extend the statute of limitations and thus permit a change in condition claim, the amendments do not affect the validity of Rahim’s discussion of the relationship between subsections A and C of Code § 65.2- 708, for which we cite the case.- 10 - stipulation has been an essential element in ever y case in which we have applied the doctrine.” Id. at 416, 702 S.E.2d at 599.

Patton listed the factors that mu st be present to establish a de facto award, recognizing the need to be “careful not to extend the judge-made concept beyond its original parameters.” Id. at 415, 702 S.E.2d at 599.

The de facto award doctrine applies only when “the employer has stipulated to the compensability of the claim, has made payments to the employee for some significant period of time without filing a memorandum of agreement, and fail s to contest the compensability of the injury . . . .” Id. (emphasis omitted) (quoting Gowan, 32 Va. App. at 463, 528 S.E.2d at 722). Once these conditions are present, it is “‘r easonable to infer that the par ties have reached an agreement,’ . . . regarding compensability of the claim.” Id. (quoting Gowan, 32 Va. App. at 463, 528 S.E.2d at 722). In the case at bar, employer conceded the compensability of the medical claim and the initial TTD claim. From July 30, 2012 to Ma rch 5, 2014, employer accommodated claimant and allowed him to work in a light-duty position. Although employer did pay claimant during the time claimant worked in this light-duty posit ion, these were not payments pursuant to an agreement on claimant’s claim for TTD benefits. In 2003, this Court decided two cases factua lly similar to claimant’s case, in both instances finding that no de facto award had been established. In White v. Redman Corp., 41 Va. App. 287, 584 S.E.2d 462 (2003), the employer did not contest compensability of the claim, and made voluntary payments to the clai mant. The claimant and the employer, however, never arrived at a specific agreement because th e “[c]laimant elected not to sign the agreement form because he did not agree with the average weekly wage calculation.” Id. at 291, 584 S.E.2d at 464. In Watts v. P & J Hauling, 41 Va. App. 278, 584 S.E.2d 457 (2003), as in White, the claimant urged this Court to find that there had been a de facto award, since “the parties- 11 - stipulated that there was a compensable injury by accident and that employer made voluntary payments to claimant for a substantial period of time . . . .” Id. at 285, 584 S.E.2d at 461. Although the employer in Watts co nceded the compensability, a nd even made payments, “the amount of compensation clearly remained in di spute.” Id. at 286, 584 S.E.2d at 461. In both White and Watts, the lack of agreement between the claimant and the employer as to the amount of compensation to be paid was fatal to the claimant’s attempt to establish a de facto award of compensation. So too, any implied finding 8 of a de facto award fails here for the same deficiency. “[T]he concept of a de facto award is grounded in the well -established principle of estoppel . . . . [I]n order for th ere to be any estoppel there must be detrimental reliance by the party claiming estoppel.” Roske v. Culb ertson Co., 62 Va. App. 512, 521-22, 749 S.E.2d 550, 555 (2013). Claimant, at the time the statute of limitations expired, could not have relied upon

the existence of a de facto award, because the parties had not agreed upon all relevant terms. Claimant conceded this lack of agreement in his position statement to the commission: “The stipulation prepared by the employer was outright rejected by counsel fo r the claimant. The employer refused to reinstate workers’ comp ensation benefits as of the date of the stipulation . . . .” The most the employer did wa s agree that the injury was compensable. In order to preserve a new claim, it was incumben t upon claimant to file such claim within two years of the date of diagnosis. At the hearing, the chief depu ty commissioner acknowledged the lack of specific agreement between the parties when he stated: “There is no stipulation for

8 The commission did not discuss de facto awards at length, nor di d it find explicitly that a de facto award had been established. Ho wever, given the lack of any de jure award, and claimant’s filing of a claim more than two years after the date of diagnos is, only the existence of a de facto award could justify the commission’s findi ng that “[t]he claimant’s April 8, 2014 claim was timely as a change in condition.”- 12 - pre-injury average weekly wage.” In light of this lack of a specific agreement, there was no de facto award, and thus no resulting extens ion of the statute of limitations. C. Other Assignments of Error Because we agree that the statute of limita tions barred claimant’s filings on April 8, 2014 (to the extent they differed from his 2013 claim), we do not reach employer’s assignments of error alleging the commission failed to adopt and apply rules of disc overy. It is likewise unnecessary to address employe r’s assignment of error alle ging that the evidence was insufficient to support claimant’s second lost ti me claim, as we find such claim barred by the

statute of limitations.

III. C ONCLUSION The new claims contained in claimant’s Apri l 8, 2014 filing were barre d by the statute of limitations, as the filing was not a change in condition applicati on. Accordingly, the commission’s decision affirming the chief deput y commissioner’s award to claimant of TTD “beginning May 8, 2014 and continuing until cond itions justify a modification, suspension or

termination thereof” is reversed and is re manded to the commission for further proceedings consistent with this opinion. The remaining awards made by the chief deputy commissioner, and affirmed by the commission, are affirmed. Affirmed in part and reversed in part.