COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Clements and Agee Argued at Salem, Virginia
McKEE FOODS CORPORATION AND ST. PAUL FIRE & MARINE INSURANCE COMPANY MEMORANDUM OPINION * BY v. Record No. 2727-00-3 JUDGE G. STEVEN AGEE JULY 3, 2001 TONY DUANE ATKINS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
R. Ferrell Newman (Thompson, Smithers, Newman, Wade & Childress, on brief), for appellants.
A. Thomas Lane, Jr., for appellee.
On this appeal, McKee Foods Corporation and its insurer,
St. Paul Fire & Marine Insurance Company, (collectively referred
herein as "the employer"), appeal the decision of the Virginia
Workers' Compensation Commission ("the commission") in which it
found it had jurisdiction to adjudicate a claim filed by Tony
Duane Atkins ("the claimant") on April 12, 2000. The employer
contends that the statute of limitations barred the commission
from asserting jurisdiction in this matter and, for the
following reasons, we agree with the employer and reverse the
decision.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. BACKGROUND
The claimant was employed with the employer as a truck
driver on October 15, 1997, when he was involved in a motor
vehicle accident in which his right arm was injured. Each
physician who treated the claimant consistently diagnosed his
symptoms as relating to an injury to his right arm or shoulder.
The incident was timely reported, and the employer accepted the
injuries as compensable. After surgery was performed on
November 26, 1997, the claimant was released to return to work
without restrictions and remained so engaged for over a year.
A Memorandum of Agreement ("the agreement"), reflecting the
injury as a "strain of upper extremity," was executed by the
parties and filed with the commission on November 19, 1997.
Pursuant to the agreement, the commission entered an award
providing for the payment of disability and medical treatment
for the claimant's injury.
In June 1999, the claimant returned to the orthopedist who
performed surgery on his shoulder after the accident and
complained of renewed problems with his shoulder. The
orthopedist, Dr. Burgess, found "no evidence of cervical
radioculopathy." He referred the claimant for a neurological
examination, which found "no neurologic[al] evidence of cervical
radioculopathy." Claimant's symptoms were "muscular in nature
related to his shoulder injury."
- 2 - On October 25, 1999, the claimant again returned to the
orthopedist. Subsequent testing revealed that the claimant's
current symptoms were likely due to a disc bulge at C4-5. The
claimant submitted his medical bills for payment under the 1997
agreement. The employer advised the claimant that it would only
cover the bills associated with treatment of the right shoulder,
not for a neck injury. On April 12, 2000, the claimant filed an
application with the commission requesting that his "neck and/or
cervical conditions" be considered injuries covered under the
agreement.
The employer defended averring the commission was without
jurisdiction to hear the claim as it was barred by the
expiration of the statute of limitations in Code § 65.2-601.
The deputy commissioner agreed with the employer and denied the
claimant's application, noting that it was filed over two years
after the accident date and, therefore, the commission was
without jurisdiction to consider the matter. This decision was
reversed upon review by the full commission, which held the
statute of limitations did not bar the claimant's application.
Simply stated, the commission, broadly construing the agreement,
found it covered the alleged cervical injury and, therefore, was
not barred by the statute of limitations. Commissioner Tarr
dissented. We disagree with the commission and reverse the
commission's decision.
- 3 - ANALYSIS
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Factual findings made by the commission will be upheld on appeal
only if supported by credible evidence. See James v. Capitol
Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488
(1989). However, the commission's application of statutory and
case law is a finding of law not binding on this Court. See
Robinson v. Salvation Army, 20 Va. App. 570, 572, 459 S.E.2d
103, 104 (1995).
The right to compensation under the Workers' Compensation
Act ("the Act") "shall be forever barred, unless a claim be
filed with the Commission within two years after the accident."
Code § 65.2-601. The issue in this case is whether the claimant
asserted all his injuries within two years of the October 15,
1997 accident.
The full commission found that under a broad interpretation
of the agreement and in light of the "interrelatedness" of the
neck and shoulder, the cervical injury was claimed within the
two-year period. It further held that the Supreme Court of
Virginia's decision in Shawley v. Shea-Ball, 216 Va. 442, 219
S.E.2d 849 (1975), was inapplicable to the case at bar because
of the interrelatedness of the body parts, finding Shawley to
- 4 - apply only "where there is an unconnected and unrelated body
part . . . ."
However, upon our review of the facts and applicable law,
we hold the commission erred in its interpretation and
application of Shawley. The injury identification of "strain of
upper extremity" in the agreement and the treatment to the arm
and shoulder did not amount to putting the employer on notice as
to its potential liability for the claimed injury to the other
body parts. This is particularly true in this case as there was
an explicit medical finding during the statutory period that no
cervical problem regarding the claimant's neck existed.
In Shawley, the claimant fell from a ladder and injured his
left foot and ankle. The Memorandum of Agreement described the
nature of the injury as "right hip and left ankle." After the
statute of limitations had run, the claimant asked the
commission to grant as part of his claim for a left ankle injury
an additional claim for alleged back and right leg injuries.
The commission refused the request and found that "'[n]o written
claim for injury to the back or right leg was filed with the
Commission within [the requisite time period] as required
. . . . Moreover and admittedly, it was only beginning [after
the statute had run] that the first reference was made or
appears in reports to any back or right leg condition.'" Id. at
443-44, 219 S.E.2d at 849.
- 5 - The Supreme Court affirmed the decision and held:
Appellant argues here that it was not necessary for him to specify all injuries in his original claim, or to assert them within [the statutory period] . . . . We disagree. Clearly it is the intent of [the statute] that . . .
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COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Clements and Agee Argued at Salem, Virginia
McKEE FOODS CORPORATION AND ST. PAUL FIRE & MARINE INSURANCE COMPANY MEMORANDUM OPINION * BY v. Record No. 2727-00-3 JUDGE G. STEVEN AGEE JULY 3, 2001 TONY DUANE ATKINS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
R. Ferrell Newman (Thompson, Smithers, Newman, Wade & Childress, on brief), for appellants.
A. Thomas Lane, Jr., for appellee.
On this appeal, McKee Foods Corporation and its insurer,
St. Paul Fire & Marine Insurance Company, (collectively referred
herein as "the employer"), appeal the decision of the Virginia
Workers' Compensation Commission ("the commission") in which it
found it had jurisdiction to adjudicate a claim filed by Tony
Duane Atkins ("the claimant") on April 12, 2000. The employer
contends that the statute of limitations barred the commission
from asserting jurisdiction in this matter and, for the
following reasons, we agree with the employer and reverse the
decision.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. BACKGROUND
The claimant was employed with the employer as a truck
driver on October 15, 1997, when he was involved in a motor
vehicle accident in which his right arm was injured. Each
physician who treated the claimant consistently diagnosed his
symptoms as relating to an injury to his right arm or shoulder.
The incident was timely reported, and the employer accepted the
injuries as compensable. After surgery was performed on
November 26, 1997, the claimant was released to return to work
without restrictions and remained so engaged for over a year.
A Memorandum of Agreement ("the agreement"), reflecting the
injury as a "strain of upper extremity," was executed by the
parties and filed with the commission on November 19, 1997.
Pursuant to the agreement, the commission entered an award
providing for the payment of disability and medical treatment
for the claimant's injury.
In June 1999, the claimant returned to the orthopedist who
performed surgery on his shoulder after the accident and
complained of renewed problems with his shoulder. The
orthopedist, Dr. Burgess, found "no evidence of cervical
radioculopathy." He referred the claimant for a neurological
examination, which found "no neurologic[al] evidence of cervical
radioculopathy." Claimant's symptoms were "muscular in nature
related to his shoulder injury."
- 2 - On October 25, 1999, the claimant again returned to the
orthopedist. Subsequent testing revealed that the claimant's
current symptoms were likely due to a disc bulge at C4-5. The
claimant submitted his medical bills for payment under the 1997
agreement. The employer advised the claimant that it would only
cover the bills associated with treatment of the right shoulder,
not for a neck injury. On April 12, 2000, the claimant filed an
application with the commission requesting that his "neck and/or
cervical conditions" be considered injuries covered under the
agreement.
The employer defended averring the commission was without
jurisdiction to hear the claim as it was barred by the
expiration of the statute of limitations in Code § 65.2-601.
The deputy commissioner agreed with the employer and denied the
claimant's application, noting that it was filed over two years
after the accident date and, therefore, the commission was
without jurisdiction to consider the matter. This decision was
reversed upon review by the full commission, which held the
statute of limitations did not bar the claimant's application.
Simply stated, the commission, broadly construing the agreement,
found it covered the alleged cervical injury and, therefore, was
not barred by the statute of limitations. Commissioner Tarr
dissented. We disagree with the commission and reverse the
commission's decision.
- 3 - ANALYSIS
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Factual findings made by the commission will be upheld on appeal
only if supported by credible evidence. See James v. Capitol
Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488
(1989). However, the commission's application of statutory and
case law is a finding of law not binding on this Court. See
Robinson v. Salvation Army, 20 Va. App. 570, 572, 459 S.E.2d
103, 104 (1995).
The right to compensation under the Workers' Compensation
Act ("the Act") "shall be forever barred, unless a claim be
filed with the Commission within two years after the accident."
Code § 65.2-601. The issue in this case is whether the claimant
asserted all his injuries within two years of the October 15,
1997 accident.
The full commission found that under a broad interpretation
of the agreement and in light of the "interrelatedness" of the
neck and shoulder, the cervical injury was claimed within the
two-year period. It further held that the Supreme Court of
Virginia's decision in Shawley v. Shea-Ball, 216 Va. 442, 219
S.E.2d 849 (1975), was inapplicable to the case at bar because
of the interrelatedness of the body parts, finding Shawley to
- 4 - apply only "where there is an unconnected and unrelated body
part . . . ."
However, upon our review of the facts and applicable law,
we hold the commission erred in its interpretation and
application of Shawley. The injury identification of "strain of
upper extremity" in the agreement and the treatment to the arm
and shoulder did not amount to putting the employer on notice as
to its potential liability for the claimed injury to the other
body parts. This is particularly true in this case as there was
an explicit medical finding during the statutory period that no
cervical problem regarding the claimant's neck existed.
In Shawley, the claimant fell from a ladder and injured his
left foot and ankle. The Memorandum of Agreement described the
nature of the injury as "right hip and left ankle." After the
statute of limitations had run, the claimant asked the
commission to grant as part of his claim for a left ankle injury
an additional claim for alleged back and right leg injuries.
The commission refused the request and found that "'[n]o written
claim for injury to the back or right leg was filed with the
Commission within [the requisite time period] as required
. . . . Moreover and admittedly, it was only beginning [after
the statute had run] that the first reference was made or
appears in reports to any back or right leg condition.'" Id. at
443-44, 219 S.E.2d at 849.
- 5 - The Supreme Court affirmed the decision and held:
Appellant argues here that it was not necessary for him to specify all injuries in his original claim, or to assert them within [the statutory period] . . . . We disagree. Clearly it is the intent of [the statute] that . . . an employee must assert against his employer any claim that he might have for any injury growing out of an accident. . . . [I]t is this notice to the employer and his insurance carrier that gives them knowledge of the accident and of their potential liability. Failure to give such notice within [the statutory time period] from an accident would seriously handicap the employer and the carrier in determining whether or not there was in fact an injury, the nature and extent thereof, and if related to the accident. The reason for the limitation prescribed by [the statute] is a compelling one.
Id. at 446, 219 S.E.2d at 853.
Despite the commission's ruling in the case at bar that a
claimant is not required to "identify with precision every body
part involved," the Supreme Court made it clear that notice made
with specificity and asserted within the statute of limitations
is required. In the case at bar, the claimant failed to meet
this requirement.
The claimant was required to identify all his injuries by
October 15, 1999. Therefore, the cervical injury claim, made
after the statute of limitations had run, bars the commission's
consideration of this matter as its jurisdictional authority
terminated at the two-year mark. See Code § 65.2-601. Further,
- 6 - the commission has no authority to rewrite the agreement to
encompass the injury or to determine if adjacent body parts not
identified in the agreement are "close enough" to be covered. 1
See Shawley, 216 Va. at 446, 219 S.E.2d at 853.
While the claimant is correct in stating the Act must be
liberally construed in harmony with its humane purposes,
"statutory construction may not be used to extend the rights
created by the Act beyond the limitations and purposes set out
therein." Garcia v. Mantech International Corp., 2 Va. App.
749, 754, 347 S.E.2d 548, 551 (1986). To construe the Act and
the agreement to find the cervical injury claim filed within the
statutory period ignores the fundamental notice requirement of
Code § 65.2-601 as established in Shawley and Garcia.
In summary, we hold, pursuant to Shawley, that the claimant
failed to file a timely claim for his cervical injury within the
meaning of Code § 65.2-601. This resulted in the employer not
being timely put on notice of the alleged cervical injury, as
required by Shawley.
To vitiate the notice requirement by permitting an untimely
claim would be fundamentally unfair to the employer. Therefore,
the claim and the commission's jurisdiction are barred by the
1 Such an action by the commission disregards its own precedent. See e.g., Gross v. Wyeth-Ayerst Laboratories, V.W.C. No. 182-73-27 (April 11, 2000).
- 7 - statute of limitations. Accordingly, the decision of the
commission is reversed.
Reversed.
- 8 -