Dorah Maeda Ogolo v Pie Gourmet Ltd., et al.

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Coleman and Willis
DORAH MAEDA OGOLO
MEMORANDUM OPINION*
v. 	Record No. 3011-98-4 	PER CURIAM
JUNE 8, 1999
PIE GOURMET, LTD. AND
NATIONWIDE MUTUAL INSURANCE COMPANY
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Onyebuchi Enechionyia; Chidi A. Ogolo, on
brief), for appellant.
(Barbara T. Jones; Siciliano, Ellis, Dyer &
Boccarosse, on brief), for appellees.
Dorah Maeda Ogolo contends that the Workers' Compensation
Commission erred in finding that (1) her claim for temporary
partial disability benefits filed on November 24, 1997 was barred
by the applicable limitations period contained in Code
§ 65.2-708(A); and (2) the limitations period was not tolled
pursuant to Code § 65.2-708(C). 	Upon reviewing the record and the
briefs of the parties, we conclude that this appeal is without
merit. 	Accordingly, we summarily affirm the commission's
decision. 	See Rule 5A:27.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. 	See R.G. Moore Bldg. Corp. v.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 	So
viewed, the evidence proved that Ogolo injured her left ankle on
August 14, 1994, while working for Pie Gourmet, Ltd. (employer).
On October 19, 1995, Ogolo filed a claim for compensation for
temporary total wage loss benefits beginning September 25, 1995,
through October 9, 1995, compensation for partial wage loss, and
compensation for permanent disability. 	Employer accepted the
claim as compensable, and the parties executed a Memorandum of
Agreement. 	On March 6, 1996, the commission awarded Ogolo
temporary total wage loss benefits beginning October 2, 1995
through October 8, 1995. 	By Agreed Statement of Fact, the parties
agreed that Ogolo returned to her pre-injury work on October 9,
1995, at a wage equal to or greater than her pre-injury wage.
Although given the opportunity by the commission, neither party
expressed any disagreement with the information contained in the
Memorandum of Agreement or the Agreed Statement of Fact, which
were the basis for the March 6, 1996 award. 	In addition, Ogolo
did not ask that additional consideration be given to her request
for permanent partial disability benefits. 	On November 24, 1997,
Ogolo filed a claim requesting compensation for temporary total
wage loss beginning September 16, 1997 through November 19, 1997,
compensation for partial wage loss, and compensation for permanent
disability benefits.
Code § 65.2-708(A) required that a change-in-condition
application be filed within twenty-four months from the last day
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for which compensation was paid. 	It is undisputed that Ogolo
returned to work October 9, 1995, and did not file her
change-in-condition application until November 24, 1997.
Accordingly, unless the tolling provision contained in Code
§ 65.2-708(C) applied to extend the limitations period beyond
October 8, 1997, the commission correctly determined that the
claim was not timely filed.
Code § 65.2-708(C) provides that "[a]ll wages paid, for a
period not exceeding twenty-four consecutive months, to an
employee (i) who is physically unable to return to [her]
pre-injury work due to a compensable injury and (ii) who is
provided work within his capacity at a wage equal to or greater
than his pre-injury wage, shall be considered compensation." 	The
commission found that when Ogolo returned to work she "was able to
perform fully the duties of her pre-injury position." 	The
evidence supports that finding.
Dr. M. David Tremaine's office notes established that as of
November 16, 1995, Ogolo was "doing very well" and she was "back
to her job as a baker and manager of a bakery." 	On December 22,
1995, Dr. Tremaine noted that "[a]t this time she is to continue
wearing the aircast which she has been wearing. 	She is to
continue working. 	She is working full-time doing her normal job
as a baker, manager." 	On April 2, 1996 and July 9, 1996, the
medical records again reflect that Ogolo was "doing well" and
"working full-time." 	No evidence proved that when Ogolo returned
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to her pre-injury work as a baker and a manager on October 9,
1995, that employer provided her selective employment; that her
work-week was reduced from forty to thirty-five hours; or that she
was unable to perform the duties of her pre-injury work.
Based upon this record, the commission did not err in finding
that the tolling provision contained in Code § 65.2-708(C) did not
apply to extend the limitations period. 	Accordingly, we affirm
the commission's decision.
Affirmed.
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