Life Insurance Company of Georgia v. Gale McCracken

• Court: Court of Appeals of Virginia
• Decided: February 13, 2001
• Docket: 1495002
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Clements and Senior Judge Coleman Argued at Richmond, Virginia

LIFE INSURANCE COMPANY OF GEORGIA MEMORANDUM OPINION* BY v. Record No. 1495-00-2 JUDGE ROBERT J. HUMPHREYS FEBRUARY 13, 2001 GALE P. McCRACKEN

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Dawn E. Boyce (Trichilo, Bancroft, McGavin, Horvath & Judkins, P.C., on brief), for appellant.

(Gale P. McCracken, pro se, on brief). Appellee submitting on brief.

Appellant, Life Insurance Company of Georgia, appeals a

finding of the Workers' Compensation Commission awarding

benefits to Gale P. McCracken. Appellant contends that the

commission erred in finding that McCracken filed her claim for

benefits within the statutory limitations period.

I. Background

McCracken was injured at work on May 7, 1996 as a result of

a slip and fall. The Employer's First Report of Accident, which

described the injury as "lumbar and cervical strains," was

prepared and signed by James P. Kirtland, the appellant's risk

manager, on May 27, 1996, and filed with the commission on

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. June 3, 1996. McCracken filed a Claim for Benefits on June 24,

1996, which described the nature of injury as "acute lumbar &

cervical sprain." Appellant accepted McCracken's claim as

compensable on July 1, 1996. A Memorandum of Agreement was

prepared by Kirtland on July 2, 1996. McCracken signed the

Memorandum of Agreement, and it was filed with the commission on

July 25, 1996. The Memorandum listed the nature of the back

injury as "back strain," and required appellant to pay McCracken

temporary total disability benefits, as well as medical benefits

for as long as necessary. An award order approving the

Memorandum of Agreement was entered on August 6, 1996.

During the following year, appellant paid benefits to

McCracken as she continued to seek treatment for her injury.

Appellant also paid benefits involving various examinations of

McCracken's reported neck pain. However, on October 30, 1997,

the commission received a letter from McCracken alleging that

appellant had continued to fail to pay certain sums pursuant to

the Memorandum of Agreement. The commission treated McCracken's

letter as an application for hearing and placed the case back on

its docket. The commission received another letter from

McCracken on February 19, 1999, alleging that appellant had

still failed to pay certain sums as required. The commission

then set the matter for hearing.

On April 27, 1999, McCracken filed another letter with the

commission, clarifying the benefits for which she sought relief.

- 2 - It was in the April 27, 1999 letter that McCracken first

complained of appellant's failure to approve benefits for her

neck condition. Specifically, for her anticipated cervical

surgery. 1

After a hearing on the issue, a deputy commissioner found

that McCracken "abandoned her original claim for cervical

injuries by executing the Memorandum of Agreement" in 1996.

Accordingly, since McCracken had failed to resubmit any claim

for cervical injury within two years of the date of injury, she

was barred from now pursuing the claim under Code § 65.2-601. 2

The full commission reversed the deputy's decision and

awarded McCracken benefits. It found that the parties' failure

to include the cervical strain in the Memorandum of Agreement

was unintentional and that the term "back strain" was

sufficiently broad to include her injuries to both her neck and

back. As a result, the commission modified the award to

specifically include McCracken's neck injury.

1 McCracken also raised issues pertaining to anticipated nerve conduction testing, liver testing and physician management of pain medication. However, these issues are not before us on this appeal. 2 The deputy commissioner also ruled that McCracken's neck injury was not a "compensable consequence . . . or a change in condition from, the earlier back strain." The full commission did not address these findings in its decision, and neither issue has been raised on appeal.

- 3 - I. Analysis

This Court is bound by the findings of fact of the

commission, but only where there is a conflict of evidence as to

the facts. Where the evidence is not in conflict, the question

is one of law as to whether or not it is sufficient to support

the commission's ruling. See Morris v. Pulaski Veneer Corp.,

183 Va. 748, 754-55, 33 S.E.2d 190, 192-93 (1945) (if in fact

there be no evidence upon which an award can be legally based,

then clearly an award which is unsupported by evidence is an

illegal award).

The only issues raised by the parties on appeal are the

statute of limitations question and the commission's

interpretation of the term "back sprain." The parties raised no

argument concerning the commission's ability to modify its own

awards, nor its ability to interpret terms contained in

Memoranda of Agreements after they have been accepted by the

commission as binding on the parties. 3

Code § 65.2-601 provides that "[t]he right to compensation

under [the Workers' Compensation Act] shall be forever barred,

unless a claim be filed with the Commission within two years

after the accident." Unlike the claimants in the cases relied

upon by the appellant, here, it is clear that McCracken filed

3 Although not an issue on appeal, we note that the commission interpreted the terms of the Agreement and consequently modified its award, without any citation to legal authority or reasoning supporting its ability to do so.

- 4 - her claim for her back injury, as well as her neck injury,

within the statutory time period. See Shawley v. Shea-Ball, 216

Va. 442, 219 S.E.2d 849 (1975); Williams v. Capital

Distributors, 74 V.W.C. 79 (1995).

Subsequently, pursuant to Code § 65.2-701, McCracken

voluntarily entered into a settlement of her claims with

appellant, and the settlement was approved by the commission by

way of its 1996 award. Prior to the entry of the award,

McCracken's claims consistently included both her back and neck

injuries, as reflected in the use of the terms "lumbar and

cervical" strains/sprains in the First Report of Accident and

the Claim for Benefits. Other than using only the term "back

strain" in the Memorandum of Agreement, there is no evidence in

the record that suggests appellant intended to exclude the

cervical strain as a compensable injury when it prepared the

Memorandum of Agreement.

Accordingly, on the facts of this case, we cannot hold that

the finding of the commission interpreting the term "back

sprain" to encompass McCracken's neck injury, is unsupported by

the evidence. See Russell Loungewear v. Gray, 2 Va. App. 90,

92, 341 S.E.2d 824, 825 (1986) (the commission's findings of

fact are conclusive and binding on this Court if supported by

credible evidence).

Affirmed.

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