Geraldine T. Prophet v. Bullock Corporation and Cincinnati Casualty Company

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Petty, McCullough and Senior Judge Bumgardner
Argued at Richmond, Virginia
GERALDINE T. PROPHET
OPINION BY
v. 	Record No. 0818-11-2 	JUDGE STEPHEN R. McCULLOUGH
DECEMBER 20, 2011
BULLOCK CORPORATION AND
CINCINNATI CASUALTY COMPANY
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Jean M. McKeen (Peter M. Sweeny; Tomlin & McKeen, PLLC, on
brief), for appellant.
Robert M. Himmel (Christopher M. Kite; Lucas & Kite, PLC, on
brief), for appellees.
Amicus Curiae: Virginia Trial Lawyers Association (Louis D.
Snesil; Marks & Harrison, on brief), for appellant.
At issue in this appeal is whether the Workers’ Compensation Commission (“the
commission”) erred in concluding that a claim for medical benefits, specifically, a prescription
for a drug used to treat weight loss caused by another drug, is time-barred under Code
§ 65.2-708(A). We conclude that the time bar found in Code § 65.2-708(A) does not apply to
appellant’s claim for medical benefits. Therefore, we reverse the decision of the commission.
BACKGROUND
Geraldine T. Prophet sustained a work-related injury to her back in 1997, while employed
as a certified nursing assistant. She received compensation in various amounts, and pursuant to a
number of awards, for 500 weeks, the maximum allowed by statute. See Code § 65.2-518.
Over the years, the claimant has treated her pain with a great variety of drugs. In June
2007, the claimant’s physician, Dr. Lawrence J. Winikur, prescribed Opana. Opana is an opioid

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drug prescribed to treat pain. After she began taking Opana, the claimant noticed that she was
losing weight. She testified that she “looked like a skeleton.” Dr. Winikur found her appearance
so striking that he inquired of the claimant if she was being tested for cancer. Dr. Winikur
diagnosed the claimant as suffering from “narcotic induced anorexia,” or weight loss triggered
by long term use of opioid medications. To address the weight loss, Dr. Winikur prescribed
Marinol, an appetite stimulant. The Marinol prescription was dated November 29, 2007. The
treatment was successful, and the claimant regained weight. Dr. Winikur later discontinued the
claimant’s use of Marinol.
On November 14, 2008, Prophet filed a claim for benefits in which she sought payment
of medication expenses totaling $39,000. The employer ultimately agreed that it was responsible
for all of the medications except for the Marinol. Following a hearing, Deputy Commissioner
Bruner ruled in favor of the claimant. The employer appealed to the commission, contending
that the claim for Marinol was time-barred by operation of Code § 65.2-708(A).
The commission, chiefly relying on Berglund Chevrolet, Inc. v. Landrum, 43 Va. App.
742, 601 S.E.2d 693 (2004), and Tricord Homes, Inc. v. Smith, No. 0863-08-2 (Va. Ct. App.
Dec. 30, 2008), reversed the deputy commissioner and held that the claim for Marinol was
untimely under Code § 65.2-708(A).
ANALYSIS
The issue before the Court is one of statutory interpretation, and we review such
questions de novo. Town of Waverly Law Enforcement v. Owens, 51 Va. App. 277, 280, 657
S.E.2d 161, 162 (2008). “As with any question of statutory interpretation, our primary objective
is ‘to ascertain and give effect to legislative intent,’ as expressed by the language used in the
statute.” Ruby v. Cashnet, Inc., 281 Va. 604, 609, 708 S.E.2d 871, 873-74 (2011) (quoting
Conger v. Barrett, 280 Va. 627, 630, 702 S.E.2d 117, 118 (2010)).

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Code § 65.2-708(A) provides in relevant part:
Upon its own motion or upon the application of any party in
interest, on the ground of a change in condition, the Commission
may review any award and on such review may make an award
ending, diminishing or increasing the compensation previously
awarded, subject to the maximum or minimum provided in this
title, and shall immediately send to the parties a copy of the award.
. . . No such review shall be made after twenty-four months from
the last day for which compensation was paid, pursuant to an
award under this title . . . .
I. S TATUTORY TEXT AND PURPOSE COMPEL THE CONCLUSION THAT THE LIMITATIONS PERIOD IN
CODE § 65.2-708(A) DOES NOT APPLY TO THE PRESCRIPTION DRUG AT ISSUE.
In arguing that the claim for Marinol is time-barred under Code § 65.2-708(A), the
employer notes that the claimant last received “compensation” in November of 2005, when the
maximum period for receiving compensation expired. See Code § 65.2-518 (generally providing
that “[t]he total compensation payable under this title shall in no case be greater than 500
weeks”). The claimant made a request for medical reimbursement on November 14, 2008. The
employer contends that this claim was made more than 24 months after she received
compensation and, therefore, was beyond the time limit established in Code § 65.2-708(A).
Provided that a change-in-condition claim is timely filed, the commission is authorized
under Code § 65.2-708(A) to “review any award and on such review may make an award ending,
diminishing or increasing the compensation previously awarded, subject to the maximum or
minimum provided in this title.”1 The employer focuses on the language “any award.” Under
the construction of this statute advanced by the employer, the commission can review “any
award” provided that the application for a change in condition is filed within 24 months after
compensation was last received. The difficulty with this argument is that it focuses on two
words – “any award” – while ignoring the entire thrust of the provision. The phrase “any award”
1 An “award” is defined by statute as “the grant or denial of benefits or other relief under
this title or any rule adopted pursuant thereto.” Code § 65.2-101.

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is tethered to the next clause, which specifies that the commission, upon reviewing any award,
may make an award “ending, diminishing or increasing the compensation previously awarded.”
Code § 65.2-708(A). In other words, the statute of limitations applies to an application for a
change in condition that seeks “compensation.” If the claim is not for compensation, the time
bar found in Code § 65.2-708(A) does not apply.
The term “compensation” in this setting does not encompass medical benefits. See
Uninsured Emplrs. Fund v. Wilson, 46 Va. App. 500, 503-05, 619 S.E.2d 476, 478-79 (2005)
(“[T]he ‘conventional meaning’ of compensation includes only ‘wage loss compensation, also
commonly known as “indemnity payments.’” . . . That definition would necessarily exclude
medical benefits, which usually involve payments to third-party medical providers.”). Indeed,
the employer does not contend that a claim for medical benefits constitutes “compensation.”
Because the claim for a prescription drug at issue here does not constitute a claim for
“compensation,” the time bar in Code § 65.2-708(A) does not apply.2
This conclusion is strengthened by the fact that, unlike compensation, which is payable
for a maximum duration of 500 weeks under Code § 65.2-518, Code § 65.2-603(A)(1) requires
an employer, “[a]s long as necessary after an accident” to “furnish or cause to be furnished . . . a
physician . . . and such other necessary medical attention.” These medical benefits can last for a
lifetime. Reading Code § 65.2-708(A) in the way the employer argues would create a conflict
between the limitations period found in Code § 65.2-708(A) and the medical benefits provision
found in Code § 65.2-603(A)(1). “Proper construction seeks to harmonize the provisions of a
2 Even if Code § 65.2-708(A) were ambiguous as to its scope, that would not help the
employer. It has long been settled that “the provisions of the Workers’ Compensation Act
‘should be liberally construed to carry out [its] humane and beneficial purposes.’” Dinwiddie
County Sch. Bd. v. Cole, 258 Va. 430, 436, 520 S.E.2d 650, 653 (1999) (quoting Baggett
Transp. Co. v. Dillon, 219 Va. 633, 637, 248 S.E.2d 819, 822 (1978)). Therefore, “should doubt
remain, [the claimant] is entitled to the benefit of the doubt.” Id. Under this settled canon of
construction, the claimant would still prevail with respect to her claim for medical benefits.

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statute both internally and in relation to other statutes.” Hulcher v. Commonwealth, 39 Va. App.
601, 605, 575 S.E.2d 579, 581 (2003).
Read in its entirety, and in the broader context of the Workers’ Compensation Act, the
statute of limitations in Code § 65.2-708(A), which governs changes in condition, bars claims for
compensation rather than for medical benefits.
II. P RIOR PRECEDENT DOES NOT COMPEL A READING OF C ODE § 65.2-708(A) THAT WOULD BAR
THE CLAIMANT’S PRESCRIPTION FOR M ARINOL.
The employer’s chief argument is not one of statutory construction. Instead, the
employer principally contends that our decision in Berglund, 43 Va. App. 742, 601 S.E.2d 693,
requires this Court to affirm the decision of the commission. We disagree with the employer.
The “doctrine [of stare decisis] plays a significant role in the orderly administration of
justice by assuring consistent, predictable, and balanced application of legal principles.”
Selected Risks Ins. Co. v. Dean, 233 Va. 260, 265, 335 S.E.2d 579, 581 (1987). As the employer
notes, stare decisis “applies not merely to the literal holding of the case, but also to its ratio
decidendi – the essential rationale in the case that determines the judgment.” Clinchfield Coal
Co. v. Reed, 40 Va. App. 69, 73-74, 577 S.E.2d 538, 540 (2003). “In other words, ‘it is not only
the result but also those portions of the opinion necessary to that result by which we are bound.’”
Newman v. Newman, 42 Va. App. 557, 566 n.1, 593 S.E.2d 533, 538 n.1 (2004) (quoting
Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67 (1996)). If Berglund is in fact controlling,
under the interpanel accord doctrine, the “decision of one panel ‘becomes a predicate for
application of the doctrine of stare decisis’ and cannot be overruled except by the Court of
Appeals sitting en banc or by the Virginia Supreme Court.” Clinchfield Coal Co., 40 Va. App. at

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73, 577 S.E.2d at 540 (quoting Johnson v. Commonwealth, 252 Va. 425, 430, 478 S.E.2d 539,
541 (1996)).3
The phrase ratio decidendi, Latin for “the reason for the decision,” means “the principle
or rule of law on which a court’s decision is founded.” Black’s Law Dictionary 1290 (8th ed.
2004). The ratio decidendi of an appellate decision is discovered by examining the opinion of
the court. The claimant in Berglund suffered a back injury at work. 43 Va. App. at 747, 601
S.E.2d at 695. Soon after the accident, he began to experience a “severe” and “steady constant
pain” in his “private area.” Several months afterwards, the claimant suffered intermittent
episodes of sexual dysfunction. Id. The question before this Court was whether Code
§ 65.2-601 barred a claim for a Viagra prescription to treat this sexual dysfunction. The claimant
contended before the commission that his sexual dysfunction was a compensable consequence of
a workplace injury to his back. Id. at 746-49, 601 S.E.2d at 695-96. The employer defended the
claim, in part, by arguing that it was barred by the statute of limitations found in Code
§ 65.2-601.
This Court rejected the employer’s argument, reasoning that Code § 65.2-601 did not
apply. The Court explained that the time bar found in Code § 65.2-601 applies to new injuries.
When an injury arises from a change in condition, rather than a new injury, the provisions of
Code § 65.2-708(A) are applicable. Id. The Court concluded that the claimant’s sexual
dysfunction constituted “a change in condition, not a new and separate injury.” Id. at 754, 601
S.E.2d at 699. Therefore, the longer statute of limitations found in Code § 65.2-708(A) applied.
The Court ultimately held that because the claimant had filed his claim while under an open
3 In contrast, unpublished opinions do not constitute binding authority on a subsequent
panel. See Rule 5A:1(f). Therefore, our decision in Tricord Homes, No. 0863-08-2 (Va. Ct.
App. Dec. 30, 2008), is not binding.

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award of temporary total disability benefits, the claimant “acted before the time limitation
outlined in Code § 65.2-708(A) even began to run.” Id.
The ratio decidendi of Berglund turns on the Court’s rejection of the applicability of
Code § 65.2-601 to a discrete set of facts. The Berglund Court did not make any broad
pronouncement about the effect of Code § 65.2-708(A) on a claim for medical benefits. Indeed,
it had no occasion to do so.4 True, the decision assumed that a claim for medical benefits fell
within the scope of Code § 65.2-708(A), but the Court did not address the issue. A case is not
authority for a point that was not actually considered or decided by the Court. See Brecht v.
Abrahamson, 507 U.S. 619, 631 (1993) (holding that, when a court assumes a legal conclusion
without squarely addressing the question, its assumption bears no stare decisis effect).
Principles of stare decisis, therefore, do not conflict with the conclusion we reach here: that a
claim for a prescription drug used to treat the side effects of prior medications does not constitute
“compensation” and, therefore, does not fall within the time bar of Code § 65.2-708(A).
CONCLUSION
Prophet’s claim for Marinol is not time-barred by Code § 65.2-708(A). That statute bars
untimely claims for “compensation” when a change in circumstance has occurred, and the claim
here is for medical benefits, not compensation. We, therefore, reverse and remand for further
proceedings consistent with this opinion.
Reversed and remanded.
4 In Berglund, the claimant did not file a brief. The only brief before the Court was the
brief for the employer and it simply did not address the question at issue in this case. The
briefing in Tricord Homes also was lopsided – no brief was filed on behalf of the claimant. The
case at bar thus presents the first opportunity for this Court to squarely address the applicability
of the time bar found in Code § 65.2-708(A) to a claim for medical benefits.