COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and Clements
Argued at Alexandria, Virginia
FAIRFAX COUNTY SCHOOL BOARD
OPINION BY
v. Record No. 2498-02-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
JULY 8, 2003
JUDITH L. HUMPHREY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Michael N. Salveson (Hunton & Williams, on
briefs), for appellant.
James J. Faughnan (Quagliano & Seeger, P.C.,
on brief), for appellee.
Fairfax County School Board (employer) contends the
Workers' Compensation Commission (commission) erred in finding
(1) that a Memorandum of Agreement that was later vacated
properly constituted a timely filed Claim for Benefits and (2)
that Judith L. Humphrey's (claimant) claim was not barred by
Code § 65.2-701. Finding no error, we affirm the commission's
decision.
I. Facts
"On appeal, we view the evidence in the light most
favorable to the claimant, who prevailed before the commission."
Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 672, 508 S.E.2d
335, 340 (1998) (citations omitted). The commission's factual
findings are conclusive and binding on this Court when those
findings are based on credible evidence. See James v. Capitol
Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488
(1989); Code § 65.2-706.
Claimant, a music specialist, sustained a variety of
injuries during her employment with the Fairfax County Public
Schools. She claimed injuries on November 9, 1994, June 8,
1995, September 14, 1995, January 23, 1997, February 13, 1998,
March 24, 1998, May 14, 1999, October 19, 1999 and October 19,
2001. 1 The November 9, 1994 claim for benefits is the only
matter before us in this appeal.
On November 9, 1994, claimant, while teaching a folk dance
to third graders, twisted her left ankle and felt a pop in her
back. She stumbled but did not fall. Claimant received
extensive medical treatment from a variety of physicians,
accupuncturists, chiropractors and psychotherapists from
November 9, 1994 through the present. She had surgery on
December 14, 1995, but it was unsuccessful.
Employer filed its Employer's First Report of Accident on
March 29, 1995, and the claim was assigned a Virginia Workers'
Compensation Commission (VWC) file number (174-01-44). The
commission sent its standard notification letter or "blue
1
The February 13, 1998 and May 14, 1999 claims were found
compensable. The June 19, 2001 claim was denied because it did
not arise out of and in the course of her employment. All of
the remaining claims except the November 9, 1994 claim were
denied as having been untimely filed. See Code § 65.2-601.
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letter" on April 4, 1995. Employer offered claimant a
Memorandum of Agreement form which she signed on January 18,
1996 and an employer's representative signed on February 5,
1996. He mailed the executed form to the commission, and it was
received on February 9, 1996.
Before the entry of an award, employer wrote the commission
and asked that the award not be entered. Notwithstanding
employer's request, the commission entered the award on April 8,
1996. Employer wrote the commission and asked that the award be
vacated. A copy of that letter was mailed to claimant. The
commission vacated the award on May 31, 1996 and stated:
On March 11, 1996, the carrier's
representative who signed the Memorandum of
Agreement advised the Commission that he had
reopened his investigation to obtain further
medical reports regarding possible
pre-existing conditions and that he withdrew
his agreement to the previously-submitted
memorandum. Nevertheless, the Commission
entered its award on April 8, 1996.
When either party withdraws its
approval of a Memorandum of Agreement prior
to the entry of the award, the award will
not be entered and the case will be
scheduled for a hearing. If, however, the
request is made after the award has been
entered, the request for review must be made
within twenty days in order for the award to
be vacated without the necessity of
establishing fraud, mutual mistake, or
imposition. In the present matter, the
carrier's representative advised the
Commission before the entry of the award
that he withdrew the carrier's approval of
the documents which had been submitted. In
spite of this written information, the
Commission entered the award. The employer
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and carrier have now petitioned for review
of that award in a timely manner.
Therefore, the Commission VACATES the April
8, 1996, Award of the Commission.
This matter is hereby removed from the
Review Docket.
(Internal citation omitted.)
Claimant agreed she received the opinion vacating the award
on June 1, 1996. She appealed that decision to this Court but
withdrew the appeal on August 19, 1996. By letter dated
November 5, 1996, employer confirmed an earlier conversation
with claimant's attorney that the claim of November 9, 1994 and
several others "should be regarded as denied."
The deputy commissioner found that claimant, pursuant to
Code § 65.2-601, failed to file a timely claim for benefits for
the November 9, 1994 claim. The deputy commissioner found that
claimant was on sufficient notice of a
dispute concerning the November 9, 1994
accident within two years of the accident
date that the employer's conduct would not
result in a finding of any detrimental
reliance upon the earlier offer and filing
of the memorandum of agreement or conduct
such as would require the Commission to step
in to do full justice. . . . The filing
requirement "is satisfied only by filing the
claim with the commission, not by filing it
with the employer or anyone else. By giving
information and filing reports with his
employer, the employee did not satisfy the
requirement that the claim be filed with the
commission . . . ."
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(Internal citations omitted.) Claimant appealed to the full
commission.
The commission reversed the deputy commissioner.
Here, the parties submitted a written
request that the Commission process an
Award. The request included every detail
for an "original claim" required by
Commission Rule 1.1: The employer's and
employee's addresses, the date of the
accident ("11/9/94"), the nature of the
injury ("Injury - Hip & Back"), and the
benefits being sought ("Temporary Total" for
the period beginning November 18, 1995). It
was signed by the claimant and clearly
requested that the Commission take action
based on the facts as stated. The
Commission thereafter took action and
entered an Award of benefits. The Award was
later vacated, but the Memorandum of
Agreement was never withdrawn by the
claimant or dismissed by the Commission. We
find that this document constituted an
original Claim for benefits and because it
was filed February 9, 1996, was timely.
From that decision, employer appeals.
II. Statute of Limitations
A. Mailing the Claim for Benefits
Employer first contends that the fully executed Memorandum
of Agreement cannot be considered a "claim for benefits" because
it was filed, i.e., mailed to the commission, by the employer
rather than the claimant. This argument is without merit.
"The right to compensation under this title shall be
forever barred, unless a claim be filed with the Commission
within two years after the accident. . . ." Code 65.2-601.
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"An employee's original claim for benefits shall be filed
within the applicable statutes of limitation. . . ." Commission
Rule 1.1.
Claimant, at employer's request, executed the Memorandum of
Agreement for filing and returned it to employer who was to take
the final step of mailing it to the commission. Employer's
reliance on Cheski v. Arlington County, 16 Va. App. 936, 434
S.E.2d 353 (1993), as precluding this process is misplaced. In
Cheski, we held that "[b]ecause the evidence fails to establish
. . . that [claimant] or anyone on her behalf filed her claim"
she was time-barred. Id. at 937, 434 S.E.2d at 354. In that
case, the claimant provided information only to the employer,
rather than information the employer was to forward to the
commission. The employee never timely invoked the commission's
jurisdiction. Additionally, the letters ultimately provided by
the employer to the commission failed to contain the information
necessary to state a claim. See Commission Rule 1.1. The facts
in Cheski are distinguishable from those presently before us.
Here, we find the analysis in Chalkley v. Nolde Brothers,
Inc., 186 Va. 900, 45 S.E.2d 297 (1947), more analogous. In
Chalkley, the Supreme Court held that a letter from employer's
counsel to the commission requesting a determination of
employer's rights and that the employee be made a party to
proceedings contained enough information to be considered a
timely filed claim. The Supreme Court noted that "[a]ll parties
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knew the claim was pending . . . . We must construe the Act
liberally to accomplish its remedial purpose." Id. at 912, 45
S.E.2d at 302. "The purpose of filing with the commission is to
provide all parties with notice of the potential issues in a
case." Johnson v. Paul Johnson Plastering, 37 Va. App. 716,
723, 561 S.E.2d 40, 44 (2002). Clearly, all parties in this
case knew claimant sought benefits, knew the issues and were
aware that the November 9, 1994 claim was contested. No
statutory language delineates who must deliver the claim for
benefits to the commission or how it should be filed. We hold,
on these facts, that it is legally insignificant that the
employer mailed the signed Memorandum of Agreement to the
commission. 2
B. Memorandum of Agreement as Claim for Benefits
Employer next argues that, when it revoked its consent to
the terms of the Memorandum of Agreement, the agreement became a
nullity and void. Employer relies on Code § 65.2-701 which
provides "[i]f approved, the agreement shall be binding, and an
award of compensation entered upon such agreement shall be for
2
We also note that Code § 65.2-701(B) provides:
An employer or insurance carrier which fails
to file a memorandum of such agreement with
the Commission within fourteen calendar days
of the date of its complete written
execution as indicated thereon may be
subject to a fine not to exceed $1,000 and
to any other appropriate sanctions of the
Commission.
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all purposes enforceable as provided by § 65.2-710. If not
approved, the same agreement shall be void." (Emphasis added.)
Employer contends that, because the award was vacated at the
employer's request, the Memorandum of Agreement was "not
approved," within the meaning of Code § 65.2-701 and,
consequently, the memorandum was "void." It reasons that any
content in the agreement that might arguably constitute a claim
was likewise vacated and void. We disagree.
"The commission's construction of the Act is entitled to
great weight on appeal." Cross v. Newport News Shipbuilding and
Dry Dock Co., 21 Va. App. 530, 533, 465 S.E.2d 598, 599 (1996)
(citing City of Waynesboro v. Harter, 1 Va. App. 265, 269, 337
S.E.2d 901, 903 (1985)). "While we generally give great weight
and deference, on appeal, to the commission's construction of
the Workers' Compensation Act, 'we are not bound by the
commission's legal analysis in this or prior cases.'" Peacock
v. Browning Ferris, Inc., 38 Va. App. 241, 248, 563 S.E.2d 368,
372 (2002) (quoting U.S. Air, Inc. v. Joyce, 27 Va. App. 184,
189 n.1, 497 S.E.2d 904, 906 n.1 (1998)).
Unlike questions of fact, however, we review questions of
law de novo. Sinclair v. Shelter Constr. Corp., 23 Va. App.
154, 156-57, 474 S.E.2d 856, 857-58 (1996) (citing Harter, 1
Va. App. at 269, 337 S.E.2d at 903). We construe the Workers'
Compensation Act liberally for the benefit of employees and give
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great weight to the commission's construction of the Act. See
Harter, 1 Va. App. at 269, 337 S.E.2d at 903.
It is well settled that a claimant
under the [workers'] compensation law must
show that his original claim was timely
filed, for such filing within the statutory
period is jurisdictional. . . . The
language of § [65.2-601], relating to the
filing of an original claim, is clear. It
deals with the right to compensation under
the [Workers' Compensation Act], and the
same statute which gives the right provides
that the right shall be forever barred
unless exercised within [two] years.
Binswanger Glass Co. v. Wallace, 214 Va. 70, 73, 197 S.E.2d 191,
193 (1973).
"The basic nature of the notice required by
[the Workers' Compensation Act] and the
necessity for an applicable jurisdictional
limitation are apparent. Such notice is
often the first knowledge that an employer
and his insurance carrier have of an
accident and of their potential liability.
It is this notice that sets in motion the
machinery to determine whether or not an
employee has in fact been injured, the
nature of the injury, whether it arose out
of and in the course of his employment,
whether permanent or temporary, and whether
compensable or not. This is the notice
which activates the right of the employee to
compensation and which invokes the
jurisdiction of the . . . Commission."
Massey Builders Supply Corp. v. Colgan, 36 Va. App. 496, 503,
553 S.E.2d 146, 150 (2001) (quoting Binswanger, 214 Va. at 73,
197 S.E.2d at 194).
"Despite requiring the timely filing of a claim, the Act
does not give a definition of claim." Garcia v. Mantech Int'l
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Corp., 2 Va. App. 749, 752, 347 S.E.2d 548, 550 (1986). "As the
record in this case reveals, the commission disseminates a
standardized claim form on which an injured employee may report
an industrial injury, but neither the Act nor the commission's
rules require that a claim must be filed on that or any other
form." Massey Builders, 36 Va. App. at 503, 553 S.E.2d at 150
(internal citations omitted).
Commission Rule 1.1(A) provides the requirements for a
Claim for Benefits.
An original claim for benefits shall be in
writing, signed and should set forth:
1. Employee's name and address;
2. Employer's name and address;
3. Date of accident or date of
communication of occupational disease;
4. Nature of injury or occupational
disease;
5. Benefits sought: temporary total,
temporary partial, permanent total,
permanent partial or medical benefits;
6. Periods of disability, if appropriate.
"The word 'shall' is primarily mandatory, whereas the word
'should' ordinarily implies no more than expediency and is
directory only." Brushy Ridge Coal Co. v. Blevins, 6 Va. App.
73, 78, 367 S.E.2d 204, 206 (1998).
Here, the facts are not in dispute. Employer offered
claimant a Memorandum of Agreement, which both employer and
claimant signed. Prior to the entry of the award but after the
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commission received the memorandum, employer requested the
commission to "hold off on entering any award on this file at
this time," in order to further investigate the nature of
employee's injuries. The commission entered the award, but
within the appropriate time period, employer submitted its
Request For Review of that award stating: "Upon further
reflection and examination of the available medical records, the
employer is unable to agree to the entry of an Award accepting
the claimant's herniated lumbar disc, or the surgery and lost
time related thereto, as compensable under VWC File No.
174-01-44." Employer then asks "For the reasons set forth
above, the employer respectfully requests that the April 8, 1996
Award be vacated." The commission then vacated the award and
removed the case from the review docket.
Employer argues that the agreement including the
information it contained became void when the commission vacated
the award. See Code 65.2-701. The commission, however, found
that, although the agreement to accept the claim as compensable
and pay the appropriate benefits was vacated, the underlying
information constituted a claim for benefits that remained
operative and was properly filed with the commission. We agree.
Neither of employer's letters to the commission contested
that an accident occurred on November 9, 1994 or that claimant
was injured as a result of that accident. Employer contested
only the entry of an award based on the possibility of
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pre-existing conditions, unrelated accidents, and possible
non-compensable injuries, and asked only to be relieved of its
legal obligation to pay compensation pursuant to the award
entered. It, accordingly, asked the commission to vacate the
award. Once vacated, the award and the underlying agreement no
longer obligated the employer to accept employee's claim as
compensable or make any additional compensable payments. The
information contained in the memorandum describing the parties,
the claimant's injuries and her request for benefits was
unaffected by the withdrawal of the agreement to pay. It
contained the correct employer name and address, employee name
and address, date of loss, nature of injury, benefits sought,
and periods of disability. See Commission Rule 1.1. Credible
evidence supports the commission's finding that the information
provided was sufficient to constitute a timely filed Claim for
Benefits.
For the foregoing reasons, the decision of the commission
is affirmed.
Affirmed.
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