RANDOLPH A. BEALES, Judge.
The Workers' Compensation Commission (commission) is authorized to review awards on the ground of a change in condition under Code § 65.2-708, which states in pertinent part:
Code § 65.2-708(A) (emphasis added).
In this appeal, Kathryn Saffert (Saffert) challenges the commission's finding that a prosthesis was removed from her ankle during a September 12, 2008 surgery—but was not replaced within the meaning of Code § 65.2-708(A)(ii). For the following reasons, we affirm the commission's holding.
While working as an elementary school teacher for the Fairfax County School Board (employer), Saffert suffered a compensable injury on September 18, 2002, when she stepped in a hole at the school playground and fractured her ankle. Saffert was awarded reasonable and necessary lifetime medical benefits. Saffert was also awarded various periods of wage loss benefits. The last period of Saffert's wage loss benefits ended on March 11, 2005.
On June 23, 2005, Saffert underwent a total ankle replacement surgery. During this procedure, a titanium prosthesis was placed in Saffert's ankle area. This prosthesis was designed to simulate her ankle's natural motion.
However, in the years following her total ankle replacement surgery, Saffert's range of motion was unsatisfactory and her pain continued—leading Dr. Kitaoka of the Mayo Clinic to conclude that the total ankle replacement had failed. Dr. Kitaoka recommended removing the prosthesis and performing "an arthrodesis in order to provide stability and relief." The commission's record in this case states that an arthrodesis is a procedure that fuses a joint into a fixed position.
On September 12, 2008, Dr. Kitaoka performed the arthrodesis of Saffert's left ankle, noting the following procedure: "1. Removal of total ankle replacement. 2. Removal of retained compression screws. 3. Ankle arthrodesis with intercalated iliac crest bone graft and internal fixation." At his final evaluation of Saffert, in March 2009, Dr. Kitaoka noted that Saffert's pain had improved somewhat—but that Saffert had "permanent stiffness of her ankle and hindfoot" due in large part to the September 12, 2008 arthrodesis procedure.
On April 3, 2009, Saffert filed a change-in-condition application in the commission, requesting permanent partial disability benefits. Employer asserted that Saffert's change-in-condition application was untimely under Code § 65.2-708(A) because Saffert filed this application more than 24 months after March 11, 2005—the last date that compensation had been paid to her. In response, Saffert contended that her total ankle replacement prosthesis was actually replaced during the September 12, 2008 arthrodesis procedure. Thus, Saffert claimed that her April 3, 2009 change-in-condition application was timely under Code § 65.2-708(A)(ii) because the arthrodesis was a surgical procedure "to repair or replace" a prosthesis.
At the evidentiary hearing before the deputy commissioner, Saffert was asked on cross-examination whether the prosthesis used in the June 23, 2005 total ankle replacement surgery was supposed to enable a range of motion "[j]ust like" she had before her ankle injury. Saffert responded in the affirmative. Saffert then testified that the prosthesis was removed and that her ankle joint was fused during the September 12, 2008 surgery. Saffert's cross-examination continued accordingly:
Based on the medical evidence and Saffert's own testimony, the deputy commissioner found that the prosthesis was removed— but not repaired or replaced—during the arthrodesis procedure on September 12, 2008. Therefore, the deputy commissioner found that Code § 65.2-708(A)(ii) was inapplicable—and that Saffert's change-in-condition application was untimely under the general 24-month limitations period mentioned in Code § 65.2-708(A).
Saffert also argued to the full commission that her total ankle replacement prosthesis had actually been replaced by a "longitudinal Steinmann pin" during the September 12, 2008 arthrodesis procedure. However, the commission majority found:
Accordingly, the commission found that the change-in-condition application that Saffert filed on April 3, 2009 was untimely under Code § 65.2-708(A).
"According to Code § 65.2-708(A), a party may ask the commission to `review any award' of benefits based upon `the ground of a change in condition.'" Ford Motor Co. v. Gordon, 281 Va. 543, 550, 708 S.E.2d 846, 850 (2011) (quoting Code § 65.2-708(A)). "`[I]n an application for review of any award on the ground of change in condition, the burden is on the party alleging such change to prove his allegations by a preponderance of the evidence.'" Herbert Clements & Sons, Inc. v. Harris, 52 Va.App. 447, 458, 663 S.E.2d 564, 570 (2008) (quoting Great Atl. & Pac. Tea Co. v. Bateman, 4 Va.App. 459, 464, 359 S.E.2d 98, 101 (1987)).
In addition, as the Supreme Court noted in Gordon, Code § 65.2-708(A) "also includes language that acts, in effect, as a statute of limitations." Gordon, 281 Va. at 551, 708 S.E.2d at 851. Relevant to this appeal, Code § 65.2-708(A)(ii) permits review of an award within "twenty-four months from the day that the claimant undergoes any surgical procedure compensable under § 65.2-603 to repair or replace a prosthesis or orthosis."
Saffert argues that the commission misinterpreted Code § 65.2-708(A)(ii) by requiring that a prosthesis be replaced by another prosthesis that serves the same function or purpose as the prosthesis being replaced. Saffert contends that the commission interpreted Code § 65.2-708(A)(ii) too narrowly, and, therefore, failed "to liberally construe the provisions" of the Workers' Compensation Act and "to carry out its humane and remedial" purposes. Frey v. Gunston Animal Hosp., 39 Va.App. 414, 421, 573 S.E.2d 307, 310 (2002); see Dinwiddie Cnty. Sch. Bd. v. Cole, 258 Va. 430, 436, 520 S.E.2d 650, 653 (1999). Saffert raises an issue of statutory interpretation, which we review de novo on appeal. Prince William Co. School Bd. v. Rahim, 58 Va.App. 493, 500, 711 S.E.2d 241, 244 (2011) (en banc).
The Workers' Compensation Act does not expressly define what it means to "replace" a prosthesis for the purposes of Code § 65.2-708(A)(ii). When, as here, "`a statute contains no express definition of a
Saffert argues that a "surgical procedure... to replace a prosthesis" occurs under Code § 65.2-708(A)(ii) any time a prosthesis is removed and "something" else is inserted in place of the prosthesis. However, Saffert's reading of the verb "replace" simply "is not consistent with that word's ordinary meaning." Carey v. Saffold, 536 U.S. 214, 219, 122 S.Ct. 2134, 2138, 153 L.Ed.2d 260 (2002); see Ruby v. Cashnet, Inc., 281 Va. 604, 609, 708 S.E.2d 871, 874 (2011) (stating that, when a statutory term is undefined, that term must be accorded its ordinary meaning). Saffert's interpretation of Code § 65.2-708(A)(ii) essentially would permit its 24-month limitations period to apply in situations where a prosthesis is removed during a surgical procedure—but not actually replaced.
The plain language of Code § 65.2-708(A)(ii) uses the words "replace a prosthesis"—not "remove a prosthesis." "[W]hen analyzing a statute, we must assume that `the legislature chose, with care, the words it used... and we are bound by those words as we interpret the statute.'" City of Va. Beach v. ESG Enters., Inc., 243 Va. 149, 153, 413 S.E.2d 642, 644 (1992) (quoting Barr v. Town & Country Props., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990)). To interpret Code § 65.2-708(A)(ii) so as to apply in cases where a prosthesis has simply been removed, but not replaced, would "`defeat the obvious intention of the legislature,'" Willis v. Commonwealth, 10 Va.App. 430, 441, 393 S.E.2d 405, 411 (1990) (quoting Huddleston v. United States, 415 U.S. 814, 831, 94 S.Ct. 1262, 1272, 39 L.Ed.2d 782 (1974)), "which a court simply should not and cannot do," Chapman, 56 Va.App. at 734, 697 S.E.2d at 25.
Furthermore, just because a prosthesis has been removed does not mean that the prosthesis has been replaced. The Supreme Court has explained that the word "replace" means "`to take the place of: serve as a substitute for ... to put in place of: provide a substitute.'" Seoane v. Drug Emporium, 249 Va. 469, 475, 457 S.E.2d 93, 96 (1995) (emphasis added) (quoting Webster's Third New International Dictionary 1925 (1986)). A "substitute" is something that "is available for use instead of something else." Webster's Third New International Dictionary 2280 (1981) (emphasis added); see also Day v. Abernathy, 204 Va. 723, 729, 133 S.E.2d 299, 303 (1963) (explaining that the word "substituted" in "its ordinary sense and well-known meaning designates something placed in a position previously occupied by another thing" (emphasis added)).
Thus, in order to "replace" a prosthesis under Code § 65.2-708(A)(ii), a substitute must "take the place of" the prosthesis that is removed during the surgical procedure. See Seoane, 249 Va. at 475, 457 S.E.2d at 96. A "substitute" is often defined as an "equivalent" of the item being replaced. See R.D. Offutt Co. v. Lexington Ins. Co., 494 F.3d 668, 673 (8th Cir.2007) ("The [dictionary] listing for `replacement' refers to `replace' which is defined as `to provide or procure a substitute or equivalent in place of.'" (quoting 2 Oxford English Dictionary 2495 (compact ed.1971))). The close association between a
By its very nature, a prosthesis is a functional or cosmetic substitute (or equivalent) for an actual body part.
As the commission here noted, under Saffert's very broad definition of "replace," even surgical sutures could qualify as a replacement for a prosthesis. Although it is true that the Workers' Compensation Act "should be liberally construed" to carry out its "humane and beneficial purposes," Cole, 258 Va. at 436, 520 S.E.2d at 653, this Court must always "ascertain and give effect to the intention of the legislature," Chase v. Daimler-Chrysler Corp., 266 Va. 544, 547, 587 S.E.2d 521, 522 (2003). Saffert's reading of Code § 65.2-708(A)(ii) would essentially permit this subsection's 24-month limitations period to apply in cases where a prosthesis has only been removed. However, the plain language of Code § 65.2-708(A)(ii) simply does not apply to cases where a prosthesis has only been removed. This Court "may not interpret [statutory] language in a way that effectively holds that the General Assembly did not mean what it actually expressed." Hicks v. Mellis, 275 Va. 213, 218, 657 S.E.2d 142, 144 (2008).
Given the use of the specific word "replace," the disputed portion of Code § 65.2-708(A)(ii) applies when a prosthesis has been removed and a substitute or equivalent for the prosthesis has been put in its place— i.e., when the prosthesis has been replaced. Accordingly, the commission's interpretation of Code § 65.2-708(A)(ii) was consistent with the plain language of that statute.
Saffert also challenges the commission's finding that "[t]here is simply no sense in which the claimant's prosthesis was replaced" during the September 12, 2008 arthrodesis procedure. Saffert contends that the prosthesis was replaced by a "longitudinal Steinmann pin" during this procedure.
On appeal from the commission, this Court reviews the facts in the light most favorable to employer, as the prevailing party in the commission. Apple Constr. Corp. v. Sexton, 44 Va.App. 458, 460, 605 S.E.2d 351, 352 (2004). "[W]e must defer to the commission's findings of fact if supported by credible
In this case, the commission defined the term "prosthesis" as "an artificial substitute for a missing body part, such as an upper limb, lower limb, eye, or tooth, used for functional or cosmetic reasons, or both." During oral argument before this Court, Saffert's counsel acknowledged that the commission's definition of this term was appropriate. Applying the commission's definition of the term "prosthesis," we conclude that credible evidence supported the commission's finding that Saffert's ankle prosthesis was not replaced during the September 12, 2008 arthrodesis procedure.
Here, the commission found that the purpose of the total ankle replacement prosthesis was to simulate the function of Saffert's ankle joint and permit motion—but that "the purpose of removing the claimant's prosthesis, and fusing the joint, was to prevent any motion of the joint." This factual finding was certainly supported by credible evidence in the record. Saffert herself acknowledged at the evidentiary hearing that the prosthesis was supposed to "simulate" the motion of her ankle joint. Saffert testified that her ankle joint was completely immobile after the September 12, 2008 arthrodesis procedure—which removed the prosthesis—explaining that it remained "stationary" and did not "move at all" any longer following this surgery.
Viewing the evidence in the light most favorable to employer (as the prevailing party in the commission), nothing in this record even suggests that any of the materials used during the September 12, 2008 arthrodesis procedure were designed to simulate motion of Saffert's natural ankle joint—which was the purpose of the prosthesis that was removed during that procedure. No substitute or equivalent for the prosthesis took the place of the prosthesis that was removed during the procedure. The record in this case reflects that the September 12, 2008 arthrodesis procedure did not involve a replacement of the prosthesis, but instead was an alternative treatment, having a different medical purpose than her earlier ankle replacement surgery. Therefore, credible evidence supported the commission's finding that the September 12, 2008 arthrodesis procedure was not a surgical procedure to "replace" a prosthesis under Code § 65.2-708(A)(ii).
For the 24-month limitations period of Code § 65.2-708(A)(ii) to apply, a prosthesis must be not only removed but actually replaced by a substitute or equivalent for the prosthesis that has been removed. On appeal, we "must defer to the commission's finding[]" that the September 12, 2008 arthrodesis procedure was not a surgical procedure to replace a prosthesis under Code § 65.2-708(A)(ii) because that finding is "supported by credible evidence in the record." Diaz, 56 Va.App. at 114, 691 S.E.2d at 522. Accordingly, for the foregoing reasons, we affirm the commission's conclusion that Saffert's April 3, 2009 change-in-condition application was untimely filed under Code § 65.2-708(A), as it was filed more than 24 months after March 11, 2005—the last day on which employer paid Saffert compensation.
Affirmed.