COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Clements
Argued at Salem, Virginia
HARDEE'S OF CLINTWOOD AND
BODDIE NOELL ENTERPRISES, INC.
MEMORANDUM OPINION* BY
v. Record No. 1753-02-3 JUDGE RUDOLPH BUMGARDNER, III
FEBRUARY 11, 2003
ESTHER JEAN ROBINSON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Monica Taylor Monday (Dale W. Webb; Gentry
Locke Rakes & Moore, on briefs), for
appellants.
(Paul L. Phipps; Lee & Phipps, P.C., on
brief), for appellee. Appellee submitting on
brief.
Hardee's of Clintwood contends the commission erred in
awarding benefits for an injury not included in the original
award and barred by the statute of limitations, Code § 65.2-601. 1
It also argues the commission erred in finding a causal
connection between the injury and the accident. We conclude the
claim is barred and reverse the commission's decision.
On July 11, 1999, the worker slipped and fell on steps
while at work. The employer accepted the claim as compensable,
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
"The right to compensation . . . shall be forever barred,
unless a claim be filed with the Commission within two years
after the accident." Code § 65.2-601.
and the parties signed a memorandum of agreement that listed the
injury as "fractured coccyx." The commission entered an award,
and the worker received benefits through August 1, 1999. The
worker did not amend the memorandum of agreement.
On June 29 and July 23, 2001, the worker filed claims for
lost wages. She received injections to her left hip and was
unable to work. The claim forms stated the date of injury and
the dates for which benefits are sought, but did not state the
nature of the injury. Further, medical records were submitted
after the statute of limitations expired. 2
The deputy commissioner denied the claim because "the
disability claimed results from injury to a different part of
claimant's anatomy separate and apart from the coccyx." The
statute of limitations barred the claim because more than two
years had passed since the accident. 3 The full commission
reversed with one commissioner dissenting. It ruled: "We find
that it is inappropriate to require or expect an employee to
petition to amend a Memorandum of Agreement prepared by her
employer to expand coccyx to include sacrum, pyriformis, or
2
The 2000-2001 medical records were filed with the
commission on July 23, 2001, August 3, 2001, August 27, 2001,
and September 13, 2001.
3
In the alternative, the deputy concluded that the worker
failed to prove that the injury to her piriformis or sciatic
nerve was causally related to the July 11, 1999 accident.
- 2 -
posterior hip. Such an interpretation of the Act is too
restrictive."
We view the evidence and all reasonable inferences fairly
deducible therefrom in the light most favorable to the worker.
R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390
S.E.2d 788, 788 (1990). We uphold the commission's factual
findings supported by credible evidence. James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
However, we are not bound by its conclusions of law. Cibula v.
Allied Fibers & Plastics, 14 Va. App. 319, 324, 416 S.E.2d 708,
711 (1992).
After her fall on July 11, 1999, the worker reported to the
emergency room with bruising and tenderness of her coccygeal
area. X-rays showed she fractured her coccyx. Two days later
Dr. Alderman diagnosed her with mild lumbar muscle strain on the
right side and referred her to Dr. Kotay, an orthopedic surgeon.
Dr. Kotay did not examine the worker until September 7,
2000. At that time, she complained of intermittent back pain
with pain that occasionally radiated down the left upper thigh.
Dr. Kotay suspected mild degenerative disc disease, but an MRI
was normal. On October 17, 2000, the worker reported increased
back pain and left leg pain that occasionally radiated to the
knee and foot. Dr. Kotay noted the symptoms had been present
over a year and had progressively gotten worse. On November 7,
2000, he added, "Clinically [the worker's] back pain is
- 3 -
radiating to the left upper thigh. . . . There is obviosu [sic]
evidence of SI joint involvement."
On March 8, 2001, the worker reported her "left leg feels
like its trying to give out and feels like it shakes."
Dr. Kotay suspected the worker might be suffering from
piriformis syndrome. The worker reported pain in her upper
thigh and, on March 15, 2001, she reported pain and aching in
her hips. Dr. Kotay recommended injections to the piriformis
area, which were administered in June and July 2001.
An "employee must assert against his employer any claim
that he may 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). The requirement is jurisdictional, and failure
to file a claim within the two years of the accident bars the
claim. Barksdale v. H.O. Engen, Inc., 218 Va. 496, 497, 237
S.E.2d 794, 795 (1977). The purpose of Code § 65.2-601 is to
provide the parties with notice of the potential issues in the
case. Proper notice enables the employer to determine whether
the 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." Shawley, 216 Va. at 446, 219 S.E.2d at
852.
In Shawley, the parties signed a memorandum of agreement
and the commission entered an award for injury to the right hip
- 4 -
and left ankle. The worker first reported and sought benefits
for back and right ankle pain after the statute of limitations
expired. The Supreme Court held that the claims for injuries to
body parts not identified on the memorandum of agreement were
time barred. In Johnson v. Paul Johnson Plastering, 37 Va. App.
716, 561 S.E.2d 40 (2002), notice of a head injury did not
constitute notice of a brain injury. "Nothing in the record
provided notice that injury to the brain was a possible claim in
this case." Id. at 726, 561 S.E.2d at 45.
In this case, the deputy commissioner determined that the
injury to the piriformis, sacrum, or posterior hip was to a
separate and distinct body part from the compensable injury to
the fractured coccyx. The commission did not amend the finding
that the coccyx was a separate and distinct body part. It
reversed by holding that to require the worker to distinguish
between those body parts was "too restrictive" an interpretation
of the Act. The holding relieved the claimant from the
necessity of specifying all injuries in the original claim or
within two years. That was the argument rejected in Shawley.
While the Workers' Compensation Act is to be liberally construed
in favor of the worker, "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 Int'l Corp., 2
Va. App. 749, 754, 347 S.E.2d 548, 551 (1986) (notice must be
provided to proper employer).
- 5 -
While the worker maintains in her brief that the coccyx and
sacrum are the same body part, she testified that the coccyx and
hip were not the same. The employer had no notice of the hip,
piriformis, or sacrum injury. Cf. Boxley v. Onorato, 218 Va.
931, 243 S.E.2d 201 (1978) (commission awarded benefits for
claim for new injury filed after statute of limitations because
medical records provided employer with timely notice). The
memorandum of agreement only listed a fractured coccyx, and the
employer only accepted that injury as compensable. The worker
failed to notify the employer of all injuries sustained in her
accident. Since the worker is seeking benefits for injuries not
included in the memorandum of agreement or the original award,
the two-year statute of limitations bars the claim.
Concluding the commission adopted an incorrect standard, we
do not address the other issues raised by the employer.
Accordingly, we reverse and remand for further proceedings
consistent with this opinion.
Reversed and remanded.
- 6 -