TOLLING OF THE STATUTE

TOLLING OF THE STATUTE OF LIMITATIONS UNDER § 65.2-708

Ford Motor Company v. Gordon, Record No. 100070, (April 21, 2011)

The Virginia Supreme Court in Ford Motor Company v. Gordon, has clarified the question of whether the provision in § 65.2-708(C), for a change-in-condition application, tolls the statute of limitations set out in § 65.2-708(A) runs anew under each successive award of compensation for a compensable injury. The Claimant received several awards for temporary total and temporary partial disability, the last of which was entered on January 13, 2003. The last direct payment pursuant to this award that the Claimant received was February 23, 2003.

Following Claimant’s injury, he continued to work for the Employer in light-duty capacity, earning wages at or above his pre-injury wage, for various periods, including April 20, 2003 through September 11, 2006 when the Ford plant was shut down and the Claimant was laid off. Fourteen days later, the Claimant filed a change-in-condition application. The Employer argued this application was time-barred as it was not filed within two years of Claimant’s last payment of compensation. Claimant argued that his application was timely because all of the wages he received for the first twenty-four months of the last period he worked for Ford in a light-duty capacity, from April 20, 2003 through September 11, 2006, were considered “compensation” under the Act and because of this, the two-year statute of limitations did not begin to run until April 20, 2005. The Virginia Supreme Court agreed with the Claimant’s interpretation of the Act and held that his application was timely, as it was filed within two years of the last date he received compensation, that is wages in light-duty capacity, pursuant to the January 13, 2003 award.

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