Augusta County School Baord and Sedgwick CMS, Inc. v. Carol A. Humphreys

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Felton, Judge McClanahan and Senior Judge Coleman
Argued at Salem, Virginia
AUGUSTA COUNTY SCHOOL BOARD AND
SEDGWICK CMS, INC.
OPINION BY
v. 	Record No. 0940-08-3 	JUDGE ELIZABETH A. McCLANAHAN
FEBRUARY 10, 2009
CAROL A. HUMPHREYS
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
J. David Griffin (Winchester Law Group, P.C., on brief), for
appellants.
George L. Townsend (The Chandler Law Group, on brief), for
appellee.
The Augusta County School Board and its insurer (collectively, the “school board”)
appeal a decision of the Workers’ Compensation Commission awarding temporary total
disability benefits to claimant, Carol A. Humphreys, on her change-in-condition application.
The school board argues the commission erred in rejecting the school board’s statute of
limitations defense. For the following reasons, we affirm the decision of the commission.
BACKGROUND
On March 12, 2003, Humphreys, a teacher for the school board, was injured at work
when a table fell on her leg, causing an abrasion. The injury developed into an ulceration.
Humphreys missed a total of nine and a half days of work for related medical appointments.
Subsequently, she filed a workers’ compensation claim seeking indemnification for lost wages
and medical benefits. The parties stipulated to the compensability of her injury and medical
treatment (excluding pain management). However, among its defenses, the school board

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asserted Humphreys suffered no actual wage loss because she took sick leave for the nine and a
half days of work she missed for her medical appointments, and received full pay for each of
those days.
In his May 17, 2005 opinion, the deputy commissioner found, inter alia, that Humphreys
did not lose any actual wages, but lost sick leave due to her injury. He then awarded her
“reimbursement of sick leave used to date for medical appointments related to her industrial
accident,” and medical benefits “for as long as necessary.”
The school board appealed to the full commission that portion of the deputy
commissioner’s opinion awarding reimbursement of sick leave, asserting the commission had no
jurisdiction to make such an award. While the appeal was pending, the parties agreed to a
settlement entered in the form of a stipulated order by the deputy commissioner on August 22,
2005, which modified his May 17, 2005 award and ended the appeal. The parties stipulated in
the order as follows:
1. The [e]mployer’s appeal is withdrawn.
2. The May 17, 2005 [o]rder of the [d]eputy [c]ommissioner is
modified as follows:
a. The parties agree that the [c]laimant has not exhausted the
waiting period for payment of indemnity of the first seven days,
and therefore those days are not yet payable.[1] In the event they
do become payable, the parties agree to re-instate sick time at a
rate of .75 days in exchange for each day payable, but only in
multiples of one.
1 This is consistent with Code § 65.2-509’s waiting period, which provides:
No compensation shall be allowed for the first seven calendar days
of incapacity resulting from an injury except the [medical] benefits
provided for in § 65.2-603; but if incapacity extends beyond that period,
compensation shall commence with the eighth day of disability. If,
however, such incapacity shall continue for a period of more than three
weeks, then compensation shall be allowed from the first day of such
incapacity.

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b. For the remaining days lost, the parties agree that the
[e]mployer shall only be responsible for the reinstatement of two
days sick time.
It is undisputed that the parties “abided by this agreement.”
On March 1, 2006, Humphreys filed an application for benefits based on a change in
condition. She sought an award of temporary total disability benefits for work missed on
February 8, 2006 to attend a medical appointment related to her original compensable injury.
She later amended the application to include six additional days of missed work due to medical
appointments. In defending the claim, the school board contended, inter alia, that the claim was
barred by the two-year statute of limitations for change-in-condition applications, as set forth in
Code § 65.2-708.2 The deputy commissioner rejected the school board’s defenses and awarded
payment of compensation to Humphreys for the seven days at issue (within a time frame of
February 2006 to May 2006).
The school board appealed the decision to the full commission, continuing to argue
Humphreys’ change-in-condition application was time-barred under Code § 65.2-708. 	The
school board asserted that no compensation was awarded under the original May 17, 2005
award—only medical benefits, and, thus, the limitations period expired two years from the date
of the March 12, 2003 accident—long before Humphreys’ subsequent March 1, 2006 claim
based on an alleged change in condition.
The commission determined that Humphreys’ March 1, 2006 change-in-condition
application was not barred by the Code § 65.2-708 two-year statute of limitations, but reached
that decision only after re-evaluating the basis for the deputy commissioner’s May 17, 2005
award on Humphreys’ original claim. As the commission explained, “[t]his decision is
complicated by the fact that the [d]eputy [c]ommissioner’s May 17, 2005 [a]ward was
2 The school board’s other defenses to the claim are not at issue in this appeal.

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improper.” In that award, the deputy commissioner ordered “reimbursement” of Humphreys’
sick leave used for medical appointments, which “exceed[ed] the [c]ommission’s statutory
authority.” However, according to the commission, it was “obvious” the deputy commissioner
“intended to award temporary total disability benefits but mistakenly entered the wrong award.”
The commission then reasoned that the award was
the equivalent of an award for temporary total disability benefits with a
credit to the employer for the sick pay that was reinstated. Thus, we will
utilize our equitable powers grounded in the doctrine of imposition to
correct this mistake and enter the proper award for nine days of disability.
The May 17, 2005 [a]ward [o]rder is hereby amended, in relevant part, for
payment of temporary disability benefits for [the nine days in March,
April and May 2003 when Humphreys missed work for medical
appointments].
“While these amendments change the form of the [a]ward entered by the [d]eputy
[c]ommissioner,” the commission stated, they do not “change the substance or effect of the
award order. Accordingly, we find that the present claim was filed within two years from the
last day for which compensation benefits were awarded [as required by Code § 65.2-708].” That
is, the commission concluded that Humphreys filed her change-in-condition application within
two years from the date of the final order on her original claim, affirming the deputy
commission’s opinion and then remanding for a determination of Humphreys’ pre-injury average
weekly wage.
ANALYSIS
The school board argues the commission had no authority to award benefits to
Humphreys on her change-in-condition application in light of the deputy commissioner’s May
17, 2005 “medical benefits only” award and the parties’ stipulated order, which became final.
According to the school board, the commission did so only by “chang[ing] the nature of the case
and remov[ing] a statute of limitations bar.” In other words, the commission “[did] not have

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authority to unilaterally change either a final [o]rder or a [s]tipulated [o]rder eighteen months
after its entry” on the basis of the doctrine of imposition.
While recognizing that upon a change-in-condition application the commission, pursuant
to Code § 65.2-708, may increase the compensation previously awarded within two years from
the last day for which compensation was paid, the school board contends “no compensation
benefits were ever paid” to Humphreys under the deputy commissioner’s May 17, 2005 award
on her original claim. Rather, it was a “medical benefits only” award. Thus, the school board
argues, Humphreys’ application for compensation, filed more than two years from the date of her
compensable injury, was time-barred.
The school board correctly asserts that, where the commission has entered a “medical
benefits only” award for a compensable injury, any subsequent claim for compensation (i.e., lost
wages) arising from that injury must be filed within two years from the date of the injury. See
Keith v. Ball Metal Beverage Container, 45 Va. App. 50, 608 S.E.2d 501 (2005); Mayberry v.
Alcoa Bldg. Prods., 18 Va. App. 18, 441 S.E.2d 349 (1994). And, here, at the time of its
execution, the deputy commissioner’s May 17, 2005 award provided only medical benefits, as
the deputy commissioner’s attempt at awarding reinstatement of Humphreys’ sick leave was
erroneous.3
We conclude, however, that under the parties’ stipulated order, which modified the
deputy commissioner’s award and settled the dispute over Humphreys’ original claim,4 a portion
3 Humphreys does not contest the full commission’s ruling that the deputy commissioner
was without authority to order the school board to reinstate sick leave, which, as discussed infra,
has long been the commission’s position on the issue of reinstating sick leave in relation to its
interpretation of Code § 65.2-520.
4 The stipulated order is in the nature of a contract between the parties, and is to be
construed as such by this Court. See Newman v. Newman, 42 Va. App. 557, 568, 593 S.E.2d
533, 539 (2004) (“‘While a consent decree is a court order, it is ‘contractual in its nature and
should be construed as though it were a contract.’” (quoting Gazale v. Gazale, 219 Va. 775, 779,

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of Humphreys’ salary was treated as payment of compensation for lost wages under the
Workers’ Compensation Act (the “Act”). The parties agreed that the nine and a half days
Humphreys missed for medical appointments were, in fact, compensable under the Act, subject
to the Code § 65.2-509 seven-day waiting period, that Humphreys’ last two and a half days of
sick leave were currently due and payable, and that a portion of Humphreys’ salary for those last
two and a half days of sick leave was to be treated as the payment of workers’ compensation
benefits. We thus hold that Humphreys’ change-in-condition application was not barred by the
applicable two-year statute of limitations, and affirm the commission’s ruling to that effect, but
on grounds other than the doctrine of imposition.5
Despite the import of the terms of the parties’ stipulated order, the school board contends
on appeal that, as a matter of law, the payment of wages to Humphreys could not subsequently
be deemed payment of compensation to her under the Act. We disagree. Code § 65.2-520
states, in relevant part, that “[a]ny payment made by the employer to the injured employee
during the period of disability . . . which by the terms of this title were not due and payable when
made, may, subject to the approval of the Commission, be deducted from the amount to be paid
as compensation . . . .” (Emphasis added.)
While the Virginia appellate courts have not addressed Code § 65.2-520 in the context
here presented in a published decision, the commission, in applying this statute, has consistently
held, at least since 1988, that
250 S.E.2d 365, 367 (1979))); Albert v. Ramirez, 45 Va. App. 799, 807, 613 S.E.2d 865, 869
(2005) (“‘A consent decree is a contract or agreement between the parties to the suit, entered of
record in the cause with the consent of the court, and is binding unless secured by fraud or
mistake.’” (quoting Orlandi v. Orlandi, 23 Va. App. 21, 26, 473 S.E.2d 716, 719 (1996))).
5 We may affirm the judgment of the commission for reasons other than those upon
which the commission reached its decision. See Granados v. Windson Dev. Corp., 257 Va. 103,
109, 509 S.E.2d 290, 293 (1999); Mercy Tidewater Ambulance Serv. v. Carpenter, 29 Va. App.
218, 226, 511 S.E.2d 418, 421 (1999).

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the payment of wages to the employee based upon sick or annual leave
may be credited to the employer under the provisions of Code § 65.1-72
[now Code § 65.2-520] when leave is reinstated. In the absence of an
outstanding award of compensation, salary paid to the employee during
his disability may be considered to be payment of compensation in the
discretion of the Industrial Commission for purposes of “credit” under
Code § 65.1-72.
Dyson v. Commonwealth, VWC File No. 129-25-08, 1988 VA Wrk. Comp. LEXIS 68, at *3
(Oct. 11, 1988) (emphasis added).
As the commission more recently stated in Myers v. City of Danville Police, VWC File
No. 179-46-44, 1998 VA Wrk. Comp. LEXIS 4342, at *5 (April 28, 1998):
[T]he employer is entitled to a credit, pursuant to 65.2-520 of the Code of
Virginia, for the wages paid to the claimant based upon sick leave and
annual leave benefits for the periods of disability awarded because the
uncontradicted evidence [in Myers, as in the instant case,] establishes that
the leave used by the claimant was reinstated to his leave balance.
Although we found in Lucas v. Research Analysis Corp., 61 OIC 166
(1969) that the employer is not entitled to any credit for salary paid if it
was charged against the claimant’s sick leave or annual leave, we held in
Dyson v. Commonwealth of Virginia Department of Transportation, 67
OIC 237 (1988) that the employer is entitled to a credit for wages paid
based on sick or annual leave “when leave is reinstated.” We agree with
the Chief Deputy Commissioner that the Commission has no jurisdiction
to consider the employer’s policies regarding sick leave or annual leave
and as long as reinstatement of those benefits is proved, the employer is
entitled to a credit for wages previously paid. See Perkins v. Crown
Central Petroleum, VWC File No. 159-72-55 (June 15, 1993).
See also Epps v. Inova Fair Oaks Hosp., VWC File No. 213-55-21, 2007 VA Wrk. Comp.
LEXIS 481 (March 23, 2007) (explaining that, while the commission does not have authority to
order the employer to reinstate sick leave, the employer, pursuant to Code § 65.2-520, would be
entitled to a credit for salary paid where it was charged against the claimant’s sick leave if the
leave is reinstated (citing Lucas, Dyson, and Myers)); Adkinson v. H & H Indus., VWC File No.
225-11-41, 2007 VA Wrk. Comp. LEXIS 756 (June 15, 2007) (same); Robbins v. County of Lee
Sch. Bd., VWC File No. 209-20-79, 2004 VA Wrk. Comp. LEXIS 987 (Dec. 8, 2004) (same).

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Accordingly, under the commission’s construction of Code § 65.2-520, as applicable in a
case such as this one, the claimant is not required to “‘buy back’ her leave balances,” and the
employer is “entitled to a credit” for wages it paid for sick leave, where such leave has been
reinstated. Saul v. Total Action Against Poverty, VWC File No. 196-47-46, 2000 VA Wrk.
Comp. LEXIS 343, at *4 (June 21, 2000). “In other words, the claimant gets her leave restored,
and her workers compensation benefits[,] while the employer is granted credit against owed
workers’ compensation indemnity benefits for wages paid through the now-restored leave.” Id. 6
We are persuaded the commission’s construction of Code § 65.2-520 is correct. As so
applied, the statute dictates that a portion of Humphreys’ sick leave pay be viewed as the
equivalent of the school board’s payment of compensation on her original claim, pursuant to the
terms of the parties’ stipulated order.7 Indeed, under settled principles, the commission’s
6 By comparison, the parties in the instant case could have settled the matter by providing
in the stipulated order that the school board was required to currently make payment to
Humphreys for her last two and a half days of sick leave in the amount of 66 2/3% of her average
weekly salary (pursuant to Code § 65.2-502), that her first seven days of sick leave were subject
to future compensation (pursuant to Code § 65.2-509’s waiting period), that the school board was
required to reinstate all of Humphreys’ nine and a half days of sick leave, and that Humphreys
was required to reimburse the school board all of the salary she received for those nine and a half
days. This would have placed the parties in the same position as if the school board had paid
Humphreys no salary during her absence, she had taken no sick leave, and she had then been
awarded compensation for lost wages for that portion of her absence from work that was
currently due and payable as compensation. The parties, however, chose not to settle the claim
in that manner. Instead, they chose to give the school board credit for wages already paid to
Humphreys as payment of compensation (at such time as compensation was or would “become
payable”), along with reinstatement of portions of her sick leave, and, under those terms,
Humphreys was not required to buy back her sick leave.
7 We also note that Code § 65.2-708(C) sets forth another example of the payment
of wages being treated as the payment of compensation under the Act. For purposes of
tolling the statute of limitations on a change-in-condition application, this provision
mandates 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

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construction of the statute “‘is entitled to be given weight’” on appeal, Cox v. Oakwood Mining,
Inc., 16 Va. App. 965, 969, 434 S.E.2d 904, 907 (1993) (quoting Peyton v. Williams, 206 Va.
595, 600, 145 S.E.2d 147, 151 (1965)), where its construction has been “‘consistently and
regularly applied’” over a long period of time, and does not conflict with the language of the
statute,8 id. (quoting Commonwealth v. May Bros., Inc., 11 Va. App. 115, 119, 396 S.E.2d 695,
697 (1990)); see Cross v. Newport News Shipbuilding & Dry Dock Co., 21 Va. App. 530, 533,
465 S.E.2d 598, 599 (1996); City of Waynesboro v. Harter, 1 Va. App. 265, 269, 337 S.E.2d
901, 903 (1985).
Under the terms of the stipulated order, the parties agreed (a) to credit the school board
for a portion of the salary previously paid to Humphreys as payment of compensation, and (b) to
reinstate certain corresponding portions of Humphreys’ sick leave, as such compensation
benefits were due and payable (both presently and in the future).9 This is initially evidenced by
the parties’ stipulation that Humphreys’ first seven sick leave days (out of her total nine and a
half days of sick leave) were “not yet payable” under the award because she had “not exhausted
the waiting period [under Code § 65.2-509] for payment of indemnity of [those] first seven days,
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) (emphasis added). See Scott v. Scott, 16 Va. App. 815, 819, 433 S.E.2d
259, 262 (1993).
8 That is to say, the commission’s construction of Code § 65.2-520 in the instant context
does not “involve[] a pure question of statutory interpretation,” thus giving rise to our deference
to the agency’s “practical construction” of the statute based on its “specialized competence” to so
construe the statute. Commonwealth v. Barker, 275 Va. 529, 536, 659 S.E.2d 502, 505 (2008)
(citations and internal quotation marks omitted).
9 It is apparent that the parties agreed to the reinstatement of less than all of Humphreys’
sick leave for each day on which she was entitled to compensation based on the fact that, in
receiving her full salary, Humphreys was paid more than she was owed in compensation for each
of those days. The actual formula the parties used for calculating the amount of sick leave to be
reinstated is not in dispute.

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and therefore those days [were] not yet payable.” The order then establishes for those first seven
days a formula for reinstating sick leave “in exchange for each day payable” to the extent “they
do become payable”—i.e., “ re-instate[ment] [of] sick time at a rate of .75 days in exchange for
each day payable, but only in multiples of one.” Finally, a portion of Humphreys’ salary for her
last two and a half sick leave days is treated in the order as payment of workers’ compensation as
evidenced by the parties’ stipulation that “[f]or the remaining days lost” the school board “shall
only be responsible for the reinstatement of two days sick time.” In other words, unlike
Humphreys’ first seven sick leave days, compensation for her last two and a half days was
currently due and payable; and, therefore, the school board, in taking a credit for wages already
paid to Humphreys as payment of compensation, was reinstating two days of her sick leave.
Humphreys thus received the equivalent of an award of compensation under the deputy
commissioner’s May 17, 2005 award, as modified by the stipulated order, dated August 22,
2005. This means that, pursuant to Code § 65.2-708, Humphreys had two years from the date of
the stipulated order to file her change-in-condition application, which she filed on March 1,
2006. Her application was therefore timely filed.
CONCLUSION
Under the stipulated order setting forth the parties’ settlement agreement, the school
board was credited with a portion of its sick leave pay to Humphreys as the payment of workers’
compensation in exchange for reinstatement of a portion of her sick leave taken as a result of her
compensable injury. Humphreys thus received, for purposes of the Act, the equivalent of an
award of compensation on her original claim under the deputy commissioner’s May 17, 2005
award, as modified by the stipulated order. Accordingly, Humphreys’ change-in-condition
application, filed on March 1, 2006, within two years of the stipulated order, dated August 22,
2005, was timely filed.

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For these reasons, we affirm the commission’s decision awarding benefits to Humphreys
on her change-in-condition application.
Affirmed.