COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Bray
Argued at Richmond, Virginia
LYNCHBURG FOUNDRY COMPANY AND
ARGONAUT INSURANCY COMPANY
OPINION BY
v. Record No. 1748-95-3 JUDGE RICHARD S. BRAY
APRIL 16, 1996
SILAS E. McDANIEL
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
J. Gorman Rosenberger, Jr. (Wilson, Garbee &
Rosenberger, on briefs), for appellants.
Ronald D. Henderson (Pendleton, Martin,
Henderson & Garrett, P.C., on brief), for
appellee.
Silas E. McDaniel (claimant) was awarded permanent partial
disability benefits by the Workers' Compensation Commission
(commission) pursuant to Code § 65.2-503. Lynchburg Foundry
Company and its insurer (employer) appeal, arguing that the claim
was barred by the limitations period prescribed by Code
§ 65.2-601. We disagree and affirm the commission.
The facts are uncontroverted. On December 4, 1991, claimant
accidentally injured his left foot incidental to employment, and
his counsel lodged a "letter claim" with the commission on April
2, 1992. This correspondence noted counsel's representation of
claimant with respect "to his workmen's compensation claim
arising from [the subject] injury" and requested "a hearing . . .
in reference to the carrier's failure to pay medical mileage and
prescriptions." The commission acknowledged receipt of
claimant's "application" and notified employer of the pending
claim. In response, employer challenged claimant's entitlement
to "medical mileage" but assured the commission that employer had
provided claimant with prescription drugs necessitated by the
accident.
The claim was thereafter placed "in suspense" by the
commission, awaiting further documentation from claimant. By
letter dated August 7, 1992, claimant advised the commission that
"reimbursement . . . for a pair of boots," was the "only unpaid
item at [that] time" and, on November 4, 1992, requested a
hearing relative to that issue. However, following subsequent
verification of payment for the boots by employer, the commission
declined to schedule a hearing, without objection from claimant.
The claim remained dormant until claimant's correspondence
to employer, dated February 4, 1994, with a copy to the
commission, advised employer that claimant had suffered a "10%
permanent partial disability to left foot as a result of the
injury" and requested employer to "go ahead and submit the
appropriate paperwork to us . . . for [claimant's] signature."
On December 2, 1994, claimant's counsel wrote the commission
seeking a hearing to resolve "this matter." Relying upon the
two-year limitation period of Code § 65.2-601, employer countered
that the disability claim was time-barred. The commission,
however, disagreed, concluding that the claim was protected by
the extended period prescribed by Code § 65.2-708(B), and awarded
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claimant disability compensation.
Code § 65.2-601 provides that "compensation . . . shall be
forever barred, unless a claim [is] filed with the Commission
within two years after the accident." During this period, the
employee must "assert against his employer any claim that he
might have for any injury growing out of the accident." Shawley
v. Shea-Ball Constr. Co., 216 Va. 442, 446, 219 S.E.2d 849, 853
(1975) (emphasis added); Mayberry v. Alcoa Bldg. Prods., 18 Va.
App. 18, 20, 441 S.E.2d 349, 350 (1994). Code § 65.2-601 is
jurisdictional and failure to file within the allotted time bars
the claim. Mayberry, 18 Va. App. at 20, 441 S.E.2d at 350.
However, Code § 65.2-708(A) permits the commission, "on the
ground of a change of condition," 1 to "review any award and on
such review . . . make an award ending, diminishing or increasing
the compensation previously awarded," provided that
[n]o such review shall be made after twenty-four months
from the last day for which compensation was paid,
pursuant to an award under this title, except: (i)
thirty-six months from the last day for which
compensation was paid shall be allowed for the filing
of claims payable under § 65.2-503 . . . .
A review pursuant to Code § 65.2-708(A) is predicated upon a
prior award. Mayberry, 18 Va. App. at 21, 441 S.E.2d at 350-51
(citation omitted); see also Shawley, 216 Va. at 445-46, 219
S.E.2d at 852. "In those cases where no compensation has been
1
"[A] change in physical condition of the employee . . .
which would affect the right to, amount of, or duration of
compensation." Code § 65.2-101.
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paid, the Commission may make an award under § 65.2-503 within
thirty-six months from the date of the accident." Code
§ 65.2-708(B) (emphases added).
Here, claimant's original application for benefits embraced
only "medical mileage and prescriptions," and employer
voluntarily satisfied these expenses, without an award by the
commission. Claimant made no mention of permanent partial
disability either to the commission or employer until February 4,
1994, twenty-six months after the accident, and did not request a
hearing on this "matter" until December 2, 1994. Thus, the
provisions of Code § 65.2-708(A) did not save the disability
claim from the jurisdictional bar of Code § 65.2-601. See
Shawley, 216 Va. at 446, 219 S.E.2d at 852-53; Mayberry, 18 Va.
App. at 20-21, 441 S.E.2d at 350-51.
Nevertheless, the commission, noting that the original
"claim was filed within two years of the accident" and that the
contested "second claim" was "made within 36 months from the
. . . accident," applied Code § 65.2-708(B) to exempt the later
claim from the preclusive effect of Code § 65.2-601. Clearly,
the disability claim sought an award under Code § 65.2-503, had
2
not been preceded by the payment of compensation, and was
asserted within thirty-six months of the accident which was
2
Compensation within the intendment of Code § 65.2-708
"refers only to compensation paid to the employee," not
"voluntary payment of medical expenses by the employer." Meade
v. Clinchfield Coal Co., 215 Va. 18, 19-20, 205 S.E.2d 410, 411
(1974).
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subject of the earlier claim. Unlike Code § 65.2-708(A), Code
§ 65.2-708(B) does not require the existence of a prior award.
Thus, the later claim qualified for relief pursuant to Code
§ 65.2-708(B).
Accordingly, we affirm the decision of the commission.
Affirmed.
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