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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. v. Record No. 0940-08-3 OPINION BY 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

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.

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This is consistent with Code

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