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Stanton v. Virginia Beach – Fire Operations, Record No. 0344-23-1 (Va. Ct. App. Jan. 30, 2024)

Case Briefs

January 30, 2024

By: Juli M. Porto

Virginia Appellate Law Blog

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The Court of Appeals interprets the tolling provisions of the Workers’ Compensation Act’s change-in-condition statute.


Facts. Joshua Stanton fractured his hip while working as a firefighter paramedic for the City of Virginia Beach, requiring hip surgery. He was awarded temporary total disability benefits from August 2014 through October 2014 and received partial disability benefits from June 2015 through August 2015. In September 2015, Stanton returned to full duty. About six years later, in August 2021, he required a hip replacement. He was placed on light duty from October 2021 through November 2021, then returned to full duty.

Afterward, Stanton filed applications with the Workers’ Compensation Commission, alleging a change in condition. He alleged that the tolling provisions of Code § 65.2-708(C) extended the statute of limitations under Code § 65.2-708(A).

Code § 65.2-708(A) allows the Commission to modify an award if a worker has a change in condition, but “no such review shall be made after 24 months from the last day for which compensation was paid, pursuant to an award” (with certain exceptions). Code § 65.2-708(C) states that wages paid to an employee under certain conditions are “considered compensation paid pursuant to an award for compensation.” Stanton argued that he met those conditions.

The deputy commissioner denied the claim and the full Commission affirmed, stating that Stanton “did not dispute that he last received compensation payments on or about August 22, 2015.” Thus, the tolling provision of subsection (C) did not apply because Stanton “worked for the employer for over six years since the date he last received compensation pursuant to an award.” Stanton appealed.


Issue. Whether Code § 65.2-708(A)’s limitations period is reset whenever the conditions of Code § 65.2-708(C) are met.


Holding. No. The tolling provisions of Code § 65.2-708(C) only apply during Code § 65.2-708(A)’s limitations period.


Notes. When reviewing “change of condition” awards pursuant to Code § 65.2-708(A), the Commission must first determine if the change occurred “within the 24-month timeline following the last day for which compensation was paid pursuant to an award under this title.” Next, the Commission can consider the tolling provisions of Code § 65.2-708(C). Here, the date on which “compensation was last paid pursuant to an award” was in September 2015 when Stanton returned to full duty work and received his pre-injury wages. Stanton worked more than 24 months on full duty after he stopped receiving compensation pursuant to his 2014 award, thus the tolling provision of Code § 65.2-708(C) did not apply.


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