COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Humphreys
Argued at Richmond, Virginia
JOHN EDWARD JENKINS
MEMORANDUM OPINION* BY
v. Record No. 3065-01-2 JUDGE JERE M. H. WILLIS, JR.
JUNE 11, 2002
DYNATRAN, INC. AND
ZURICH INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Leila H. Kilgore (Benjamin M. Smith, Jr.;
Kilgore & Smith, on brief), for appellant.
Edward H. Grove, III (Brault Palmer Grove
Zimmerman White & Steinhilber LLP, on brief),
for appellees.
John Jenkins appeals a decision of the Workers'
Compensation Commission finding that he failed to submit a claim
for a brain injury within two years of his compensable accident
and that his claim for permanent total disability is barred by
Code § 65.2-601. We affirm the commission's decision.
I. BACKGROUND
A. INJURIES
On July 30, 1991, Jenkins was working in a "cherry picker"
bucket, over traffic, changing a light bulb in a traffic signal.
A truck hit the bucket, causing the arm supporting the bucket to
break. Jenkins fell onto the truck, was knocked out, was
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
carried some distance down the road, and then fell off the truck
onto the ground.
The medical records indicate that Jenkins was "alert and
oriented at the scene with stable vital signs." He was
transported by emergency personnel to Fairfax Hospital, where he
was diagnosed as having suffered a distal ulnar and radial
fracture to the right upper extremity and an L1 compression
fracture (arm and back injuries). The records report that
during his evaluation in the emergency room he was
"neurologically intact and the neurologic status has not changed
over the last two days." He was hospitalized from July 30 to
August 7, 1991.
On June 26, 1992, Jenkins was referred to Robert Fetrow, a
licensed clinical social worker. Mr. Fetrow examined Jenkins
and diagnosed major depression, single episode. He ruled out
post-concussive syndrome. On July 23, 1992, Dr. Andrew
Schiavone, a neurologist, examined Jenkins and noted the
following:
As noted above apparently there was head
trauma that was associated with the fall
because of the period of unconsciousness and
to this day the incidents from the time that
he reached for the light to the time he woke
up by the side of the road are gone and his
relating the story is apparently what he
deduced and what was told to him by those at
the scene.
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He diagnosed Jenkins with "depressive disorder secondary to
chronic pain and loss," and a "possible post-concussive
disorder."
On November 17, 1992, David W. Hebda, Ph.D., saw Jenkins
for a neuropsychological assessment. Following an examination,
Dr. Hebda stated, "Although the existence of a preexisting
attention disorder must be considered, Mr. Jenkins' pattern of
responses on a variety of attentional tasks is consistent with a
mild head injury . . . ." On July 10, 1997, Jenkins was
referred to Amy B. Taylor, a licensed clinical social worker,
for counseling. The purpose of the referral was to assist him
in dealing with depression, anger control, and anxiety. Jenkins
was seen by Ms. Taylor until September 1998.
B. PROCEDURAL HISTORY
Jenkins filed a claim for compensation related to his
injuries sustained in the July 30, 1991 accident. His claim was
accepted as compensable and a memorandum of agreement ("MOA")
was executed on May 1, 1992. The MOA recited that Jenkins was
injured when he "[f]ell to the ground while changing [a] light
bulb in [a] traffic signal." It described his injuries as a
broken right wrist and a hurt back.
On May 2, 1992, based on the MOA, the commission awarded
Jenkins ongoing temporary total disability benefits beginning on
August 7, 1991. In November, 1992, the parties submitted a
second MOA to the commission, correcting the average weekly
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wage. A second award, dated November 17, 1992, described the
nature of Jenkins' injury or illness and the body parts
affected, stating that he "[f]ell to ground changing [a] traffic
signal bulb, injur[ing the] back & fractur[ing the] right
wrist."
On February 23, 1997, Jenkins filed an application for
hearing seeking payment of bills accrued while in Ms. Taylor's
care. He made no claim for head or brain injury. Following a
complete review of the medical records, the deputy commissioner
found that Dynatran, Inc. would be responsible for Ms. Taylor's
charges, because Jenkins' psychological problems related
directly to the occupational injury. The full commission
affirmed.
On March 23, 2001, Jenkins filed an application for hearing
alleging permanent total disability benefits pursuant to Code
§ 65.2-503(3) for "injury to the brain which is so severe as to
render the employee permanently unemployable in gainful
employment." In support of that application, he submitted a
letter from Dr. Schiavone dated June 18, 2001.
To my knowledge he was gainfully, steadily
employed for years leading up to this
incident. He tried to return to work after
the accident.
Post accident he sustained a head injury
significant enough to cause loss of
consciousness. This led to emotional,
cognitive, behavioral and ultimately
employment difficulties.
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Following a hearing, the deputy commissioner ruled that the
commission lacked jurisdiction to award benefits under Code
§ 65.2-503, because Jenkins had filed no claim for brain trauma
within two years of the July 30, 1991 accident and no "injury to
the brain" had been accepted originally as compensable. The
deputy commissioner noted that while the possibility of head
trauma had been referenced in medical reports within five months
after the accident, no claim for head injury had been included
in the May 1, 1992 MOA or the November, 1992 amended MOA or
covered by the resulting awards.
On October 12, 2001, the full commission affirmed. It
held:
After carefully reviewing the record in its
entirety, we have found neither a specific
claim for "brain injury," nor inclusion of
such an injury in either of the two MOA
executed within two years of the accident on
July 30, 1991. The employer's "knowledge"
or "notice" of the claimant's injury --
without more -- is insufficient to toll the
statute of Code § 65.2-601. A claim for
each such injury must be lodged with the
employer and Commission.
Jenkins appeals that decision.
II. ANALYSIS
On appeal, "[d]ecisions of the commission as to questions
of fact, if supported by credible evidence, are conclusive and
binding on this Court." Manassas Ice & Fuel Co. v. Federated
Mutual Ins. Co., 13 Va. App. 227, 229, 409 S.E.2d 824, 826
(1991). "The fact that contrary evidence may be found in the
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record is of no consequence if credible evidence supports the
commission's finding." Id. We view the evidence in the light
most favorable to the party prevailing below. Creedle Sales Co.
v. Edmonds, 24 Va. App. 24, 26, 480 S.E.2d 123, 124 (1997).
However, "[t]his Court is not bound by the legal determinations
made by the commission." Robinson v. Salvation Army, 20
Va. App. 570, 572, 459 S.E.2d 103, 104 (1995).
Code § 65.2-503(C)(3) provides in pertinent part:
C. Compensation shall be awarded pursuant
to § 65.2-500 for permanent and total
incapacity when there is:
3. Injury to the brain which is so
severe as to render the employee
permanently unemployable in gainful
employment.
Jenkins contends that the commission erred in holding that his
claim for permanent total disability under Code § 65.2-503(C)(3)
was time-barred because he failed to submit his claim within two
years following his compensable accident.
To receive compensation, an injured employee must file a
notice of claim within two years after the accident. See Code
§ 65.2-601. This notice must specify all injuries that are
claimed to be compensable. Shawley v. Shea-Ball Constr. Co.,
216 Va. 442, 446, 219 S.E.2d 849, 853 (1975). "[I]t is this
notice to the employer and his insurance carrier that gives them
knowledge of the accident and of their potential liability."
Id.
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Jenkins argues that his medical record provided notice of a
brain injury within the two-year statutory period. It did not.
See Johnson v. Paul Johnson Plastering, 37 Va. App. 716, 561
S.E.2d 40 (2002).
In Johnson, the claimant, while working on stilts, fell,
hitting his right arm and forehead. He was diagnosed with a
broken right wrist and a lacerated eyebrow. Several months
after the fall, he began complaining of headaches, back and neck
pain, blurred vision, and lack of alertness. Instead of
improving, his condition deteriorated. The medical reports made
no mention of a brain injury. However, they included
discussions of depression and of psychiatric and cognitive
problems. Id. at 719-20, 561 S.E.2d at 42. The employer filed
a first report of accident with the commission and Johnson
followed by notifying the commission and his employer of the
"Nature of Injury" as "rt. wrist, head, back, left leg and
foot." The parties reached a settlement on the claim and
executed an MOA. The only injury listed on the MOA was "arm."
The agreement was approved, and Johnson began receiving
disability compensation. Id. at 720-21, 561 S.E.2d at 42.
Nine years after his injury, Johnson filed a claim for
permanent total disability, pursuant to Code § 65.2-503(C)(3),
asserting a brain injury. We held that his claim was
time-barred. We said:
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Claimant argues that these medical reports
of cognitive problems placed employer on
notice of an injury to the brain. However,
none of the medical evaluations conducted
within two years of the accident mention any
physical trauma to the brain. . . .
While employer clearly knew claimant had
mental problems, nothing suggested the cause
of these problems was an injury to the brain
. . . . These facts do not support the
claimant's contention that he filed notice
of an injury to the brain within the
two-year statute of limitations established
by Code § 65.2-601.
* * * * * * *
Additionally, the memorandum of agreement
executed by the parties did not mention an
injury to the brain, but instead described
the "nature of injury" as "claimant slipped
and fell from drywall slat and injured arm."
This characterization of the injury
indicates employer believed the only injury
from the fall was to the arm.
Use of the single word, "head," generally is
not sufficient filing of a claim for injury
to the brain, especially where the only
evidence to suggest this type of injury is a
minor laceration to the eyebrow. Nothing in
the record provided notice that injury to
the brain was a possible claim in this case.
The initial claim letter, the medical
reports, the memorandum of agreement, the
settlement letters -- none of these
documents indicate the employer was informed
of an injury to the brain.
The requirements of Code § 65.2-601 were not
met.
Johnson, 37 Va. App. at 724-26, 561 S.E.2d at 44-45 (citations
omitted).
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As in Johnson, nothing in the record before us provided
Dynatran, within two years of Jenkins' injury, notice of a brain
injury. The medical records report that when Jenkins arrived in
the emergency room, he was "alert and oriented" with "stable
vital signs." He was diagnosed only with arm and back injuries.
Jenkins' subsequent medical record provides little
suggestion of a brain injury. On June 26, 1992, Robert Fetrow,
a licensed clinical social worker, examined Jenkins and reported
major depression and ruled out post-concussive syndrome. On
July 23, 1992, Dr. Schiavone noted that "apparently there was
head trauma that was associated with the fall . . ." but
diagnosed Jenkins with depressive disorder secondary to chronic
pain and loss, and a possible post-concussive disorder.
On November 17, 1992, Jenkins received a neuropsychological
assessment from Dr. Hebda. Dr. Hebda noted that "[a]lthough the
existence of a preexisting attention disorder must be
considered, Mr. Jenkins' pattern responses on a variety of
attentional tasks is consistent with a mild head injury . . . ."
Although the medical records suggest the possibility that
Jenkins suffered head trauma in his accident, that suggestion is
insufficient to assert that he suffered a brain injury and to
serve as notice of such to his employer.
The two MOAs made no mention of a brain injury and did not
put the employer on notice of such. The May 1, 1992 MOA stated
that Jenkins had suffered a broken right wrist and back
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injuries. The November, 1992 MOA modified only the average
weekly wage. It included no amendment to the section
designating the injury or illness. Nothing in the record
provided, within the two-year statute of limitation, notice that
brain injury was a claim in the case.
The decision of the commission is affirmed.
Affirmed.
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