Roanoke County v. Mason Walter Ferris

• Court: Court of Appeals of Virginia
• Decided: January 11, 1996
• Docket: 0781953
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Elder and Fitzpatrick

ROANOKE COUNTY AND CONSOLIDATED RISK MANAGEMENT SERVICE, INC. MEMORANDUM OPINION * v. Record No. 0781-95-3 PER CURIAM JANUARY 11, 1996 MASON WALTER FERRIS

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION (Gregory P. Cochran; Caskie & Frost, on brief), for appellants.

(Gary L. Lumsden; Rhonda L. Overstreet, on brief), for appellee.

Roanoke County and its insurer (hereinafter collectively

referred to as "employer") contend that the Workers' Compensation

Commission erred in finding that the applicable two-year statute

of limitations contained in Code § 65.2-601 did not bar the

commission from awarding compensation to Mason Walter Ferris.

Specifically, employer contends that (1) because it filed a

"Report of Minor Injuries," claimant was not prejudiced by its

failure to file the Employer's First Report of Accident; and (2)

even without considering the Report of Minor Injuries, claimant

was not prejudiced by employer's failure to file the Employer's

First Report of Accident. 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 * Pursuant to Code § 17-116.010 this opinion is not designated for publication. decision. Rule 5A:27.

I. Report of Minor Injuries

Any theory of recovery or argument not raised before the

commission will not be considered by this Court for the first

time on appeal. Rule 5A:18. See also Kendrick v. Nationwide

Homes, Inc., 4 Va. App. 189, 192, 355 S.E.2d 347, 349 (1987).

Employer did not raise the issue of how its filing of the Report

of Minor Injuries impacted upon the prejudice suffered by

claimant. Accordingly, we will not consider this argument on

appeal. II. Prejudice to Claimant Caused by Employer's Failure to Timely

File the Employer's First Report of Accident

On appeal, we review the evidence in the light most

favorable to the prevailing party below. R.G. Moore Bldg. Corp.

v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

The parties stipulated that claimant sustained a compensable

injury by accident on January 24, 1992 resulting in left leg and

knee injuries. On the date of the accident, claimant sought

medical treatment from Dr. Curtis S. Mull, who diagnosed a torn

medial meniscus related to his January 24, 1992 injury by

accident. On April 6, 1992, Dr. Mull noted that claimant's knee

was doing well, but that he might need surgery in the future.

Dr. Mull discharged claimant from his care on that date and he

returned to his pre-injury work. Between April 7, 1992 and April

27, 1994, claimant did not seek medical treatment for his left

2 knee, except to obtain a new knee brace. On April 27, 1994,

claimant returned to Dr. Mull complaining that his knee was

locking. Dr. Mull recommended that claimant undergo an

arthroscopy and a partial meniscectomy on his left knee. Dr.

Mull related this surgery to the January 24, 1992 injury by

accident.

Claimant filed a claim for benefits on July 20, 1994, more

than two years after the January 24, 1992 injury by accident. On

August 10, 1994, employer filed the Employer's First Report of

Accident. Claimant testified that he never received the notice

set forth in Code § 65.2-602. Pursuant to Code § 65.2-602, the two-year statute of

limitations is tolled where employer received notice of the

accident, employer failed to file an Employer's First Report of

Accident, and employer's conduct prejudiced the employee's right

with respect to filing a timely claim. Bristol Newspapers, Inc.

v. Shaffer, 16 Va. App. 703, 706-07, 432 S.E.2d 23, 25 (1993). 1

Here, employer did not dispute that it received notice of

claimant's accident when it occurred, and that it did not file an 1 This case is distinguishable from Bristol Newspapers. In Bristol Newspapers, unlike this case, employer filed the Employer's First Report of Accident three months after the employee's industrial accident and the employee received the "blue letter" and "employee's guide" from the commission. 16 Va. App. at 707, 432 S.E.2d at 25. Moreover, Hervey v. Newport News Shipbuilding & Drydock Co., 12 Va. App. 88, 402 S.E.2d 688 (1991), cited by employer, was decided under former Code § 65.1-87.1, before the General Assembly added the provisions pertaining to the failure to file an Employer's First Report of Accident to present Code § 65.2-602.

3 Employer's First Report of Accident until August 10, 1994, after

the expiration of the two-year statute of limitations. Employer

presented no evidence to show that claimant received notice from

the commission concerning his right to file a claim prior to the

expiration of the limitations period. Therefore, under these

facts, the commission did not err in finding that employer's

conduct prejudiced claimant from filing a timely claim.

For these reasons, we affirm the commission's decision.

Affirmed.