COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Agee and Senior Judge Coleman
Argued at Salem, Virginia
FLEETWOOD HOMES OF VIRGINIA, INC. AND
LUMBERMEN'S UNDERWRITING ALLIANCE
MEMORANDUM OPINION* BY
v. Record No. 2236-00-3 JUDGE ROBERT P. FRANK
JUNE 5, 2001
PATRICIA S. McNEAL
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Monica L. Taylor (Dale W. Webb; Gentry,
Locke, Rakes & Moore, on brief), for
appellants.
No brief or argument for appellee.
Fleetwood Homes of Virginia, Inc., (employer) appeals the
Workers' Compensation Commission's (commission) finding that
Patricia McNeal's (claimant) claim for benefits for injury to
her neck was not barred by the statute of limitations. We find
that the commission erred in its application of the statute of
limitations and reverse the award.
I. BACKGROUND
On October 2, 1987, claimant sustained an injury during her
employment as an assembler with employer, a mobile home
manufacturer. The initial diagnosis by Dr. Francis Amos was
"local" contusions and abrasions. He ordered an x-ray to
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
determine whether claimant had fractured a rib. On October 5,
1987, Dr. Amos reported that claimant was "sore along the right
lateral rib cage" and "over the right line crest." He also
noted that she had "extreme tenderness on the dorsum of the
right shoulder." His diagnosis was "soreness secondary to
trauma to the right side." On October 12, 1987, Dr. Amos had
the x-ray results, which indicated claimant had a fractured rib.
On October 14, 1987, claimant was examined by Dr. Charles
Bray, an orthopedist. He wrote that claimant sustained "soft
tissue injuries except the fractured rib."
Employer accepted the claim as compensable and claimant
signed a memorandum of agreement as to the payment of
compensation. The memorandum of agreement described the injury
as a "bruised shoulder & ribs." On November 19, 1987, the
commission entered an award pursuant to the memorandum of
agreement, which entitled claimant to benefits beginning on
October 10, 1987.
Claimant returned to her pre-injury work on November 4,
1987, and the compensation benefits were terminated under an
agreed statement of fact.
Claimant then relocated to Pennsylvania, where she
continued to work for employer. There, she was treated by
Dr. J. Paul Lyet, an orthopedist, who, on April 28, 1988,
diagnosed her with "post traumatic muscle imbalance" of the
right shoulder and "secondary rotator cuff tendonitis and
- 2 -
chronic impingement." Claimant received benefits pursuant to a
supplemental award from April 6, 1988 to May 2, 1988, when she
returned to work for employer.
On December 27, 1988, Dr. Lyet communicated his findings to
employer's insurance adjuster and stated that claimant
"certainly" had "permanent bone and joint pathology which" would
"most likely cause problems at a later time."
Claimant received further treatment from Dr. Stoner, a
chiropractor. By her account, she did not want to pay for
further chiropractic care and requested permission to see
another doctor. On April 6, 1994, employer's insurance adjuster
directed claimant to see Dr. Balog, an orthopedist. On October
3, 1994, he diagnosed claimant with "cervical sprain with
moderate right sided cervical radiculitis and . . . some degree
of right shoulder subacromial bursitis," which he related to
"her injury in question several years" before. On December 5,
1994, Dr. Balog referred claimant to Dr. Santo, an
anesthesiologist, for "trial of cervical epidural" steroid
injections. On January 30, 1995, Dr. Balog referred claimant to
Dr. Stoner for treatment of the cervical radiculitis.
In September 1994, claimant suffered a second accidental
injury during the course of her employment with employer. The
second accident involved injury to her lower back and left leg.
She was treated by Dr. Santo and Dr. Stoner for these injuries.
- 3 -
On August 5, 1998, claimant was evaluated by Dr. Lewis
Irwin, a pain management specialist, who indicated claimant's
"upper body pain" was "initiated by trauma received [eleven]
years before."
On October 8, 1998, ten years after the initial injury,
claimant filed a claim for benefits that requested payment of
incurred medical and mileage expenses for treatment of her neck
injury by Dr. Balog, Dr. Santo, and Dr. Stoner.
On April 8, 1999, claimant testified before the deputy
commissioner. The deputy commissioner questioned claimant about
the neck injury and the following exchange occurred:
Q: Okay. Now, was the neck pain
immediate or did it start later or when did
you start having the neck pain?
A: The whole thing that I have right
now I had then but Dr. Amos, he did, that
day, he said it was bruised.
Q: That day being when?
A: The day I went to him, October 2.
Q: The day of the accident?
A: Yes.
Q: Did you have neck pain that day?
A: My whole upper part of my body was
hurting.
Q: Okay. So to answer your question
though, did you have neck pain that day?
A: That was a long time ago, but I
would say, yeah. I mean, it all hurt. It
still hurts.
- 4 -
On April 9, 1999, the deputy commissioner awarded claimant
benefits, finding that the treatment of claimant's neck was
causally related to the October 2, 1987 accident. On August 14,
2000, the full commission affirmed the deputy commissioner's
ruling with Commissioner Tarr dissenting.
II. ANALYSIS
On appeal, employer contends the commission erred in
finding that claimant's claim for injury to her neck was not
barred by the two-year statute of limitations. We agree and
reverse the award of the commission.
"Pursuant to Code § 65.2-706(A), an award of benefits by
the Commission upon review 'shall be conclusive and binding as
to all questions of fact.'" A New Leaf, Inc. v. Webb, 257 Va.
190, 196, 511 S.E.2d 102, 104 (1999).
Code § 65.2-601 states, "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."
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.
Lynchburg Foundry Co. v. McDaniel, 22 Va. App. 307, 310, 469
S.E.2d 85, 87 (1996).
- 5 -
However, Code § 65.2-708(A) permits the
commission, "on the ground of a change of
condition," 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.
Id. at 310-11, 469 S.E.2d at 87.
First, we consider whether claimant's neck injury
constituted a change in condition pursuant to Code § 65.2-708.
The doctrine of compensable consequences provides
"[w]hen the primary injury is shown to have
arisen out of and in the course of
employment, every natural consequence that
flows from the injury likewise arises out of
the employment, unless it is the result of
an independent intervening cause
attributable to claimant's own intentional
conduct."
Bartholow Drywall Co., Inc. v. Hill, 12 Va. App. 790, 793-94,
407 S.E.2d 1, 3 (1991) (quoting Morris v. Badger Powhatan/Figgie
Int'l., Inc., 3 Va. App. 276, 283, 348 S.E.2d 876, 879 (1986)).
"A change of condition claim based on the aggravation of a prior
compensable injury falls within this doctrine." Southern Iron
- 6 -
Works, Inc. v. Wallace, 16 Va. App. 131, 134, 428 S.E.2d 32, 34
(1993) (citing Bartholow, 12 Va. App. at 797, 407 S.E.2d at 5).
"'The simplest application of this principle is the rule that
all the medical consequences and sequelae that flow from the
primary injury are compensable.'" American Filtrona Co. v.
Hanford, 16 Va. App. 159, 163, 428 S.E.2d 511, 513 (1993)
(citation omitted).
In this case, we find that claimant's neck injury was not a
medical consequence that flowed from the primary injury.
Claimant testified before the deputy commissioner that she
injured her neck on October 2, 1987, the date of the accident.
Thus, according to claimant's own testimony, her neck injury was
a primary injury, not a subsequent condition that developed as a
result of the accident. Therefore, the limitation period in
Code § 65.2-708(A) is inapplicable to claimant's neck injury
claim.
Because we find that claimant's neck injury was a primary
injury, the two-year limitation period in Code § 65.2-601
applies.
In Shawley, 216 Va. at 446, 219 S.E.2d at 853, the Supreme
Court of Virginia held that "within [the limitation period] an
employee must assert against his employer any claim that he
might have for any injury growing out of the accident." The
facts in Shawley are very similar to the facts in this case. In
Shawley, Shawley fell from a ladder and injured himself during
- 7 -
his employment with Shea-Ball. Id. at 443, 219 S.E.2d at 850.
Shea-Ball and its workmen's compensation carrier recognized the
claim as compensable and entered into a memorandum of agreement
with Shawley. Id. The memorandum of agreement stated Shawley
injured his "'right hip and left ankle.'" Id. After Shea-Ball
submitted a change in condition application, which was dismissed
by the deputy commissioner, the full commission found the
maximum improvement of Shawley's left leg had been attained and
entered an award based on a twenty percent "[p]ermanent partial
loss of the use of the left leg . . . ." Id. at 443, 219 S.E.2d
at 851. On appeal to the Supreme Court, Shawley argued the
commission refused to consider his additional claim for injuries
to his back and right leg. Id. Shawley did not claim the
injuries to his back and right leg in his original claim, and
none of the medical documents submitted during the limitation
period indicated he sustained an injury to his back or right
leg. Id. at 443-44, 219 S.E.2d at 850-51.
The Court rejected Shawley's argument that he did not need
to specify all injuries in his original claim or to assert them
within the limitation period. Id. at 446, 219 S.E.2d at 853.
The Court wrote that the assertion of any claim growing out of
the accident was necessary because
it is this notice to the employer and his
insurance carrier that gives them knowledge
of the accident and of their potential
liability. Failure to give such notice
within [the limitation period] would
- 8 -
seriously handicap the employer and the
carrier in determining whether or not there
was in fact an injury, the nature and extent
thereof, and if related to the accident.
Id.
Clearly, Shawley does not create an exception for adjacent
body parts to the requirement that all claims growing out of an
accident must be timely asserted. The memorandum of agreement
stated Shawley injured his right hip and left ankle, yet his
subsequent claim for injury to his right leg was rejected by the
Supreme Court. Thus, despite the relationship between the right
hip and right leg, the Court rejected Shawley's claim for the
right leg injury because such injury was not specified within
the limitation period.
In this case, claimant did not indicate she suffered injury
to her neck in her original claim, and the neck injury was not
reported in the medical documents submitted within the two-year
limitation period following the date of the accident. Under
Shawley, claimant was required to assert the claim for her neck
injury within the limitation period because, according to her
testimony, she suffered the neck injury on the date of the
accident. Her claim for the injury to her neck is, therefore,
barred by the statute of limitations.
For these reasons, we hold the commission erred in finding
that the two-year statute of limitations did not act to bar the
- 9 -
claim for claimant's neck injury. We, therefore, reverse the
award of the commission.
Reversed.
- 10 -
Coleman, J. dissenting.
In my opinion the majority applies the Supreme Court's
holding in Shawley v. Shea-Ball Const. Co., 216 Va. 442, 446,
219 S.E.2d 849, 853 (1975), much too broadly and in so doing has
circumvented the fact finding function of the commission, which
in this case was to determine whether McNeal's neck injury was
part of the compensable injury that the memorandum of agreement
described as "bruised shoulder & ribs." As the Supreme Court
clearly pointed out in Shawley, when the commission makes such a
determination of whether a claimed injury was part of the
original compensable injury or whether an injury is a new or
unrelated injury it is exercising a fact finding function. See
Shawley, 216 Va. at 444, 219 S.E.2d at 851 ("These findings of
fact are conclusive and binding upon this Court.").
In Shawley, the Supreme Court upheld the commission's
factual finding that the evidence failed to prove that Shawley's
claim for back pain and a right ankle injury were related to his
compensable left ankle injury. However, here, because credible
evidence supports the commission's factual finding that McNeal's
neck or cervical spine injury for which she now seeks medical
treatment was part of the same original injury that was
designated in the memorandum of agreement as "bruised shoulder &
ribs," I would affirm the commission's award. The commission,
in its opinion, reviewed the evidence and the several medical
reports on which it relied that, if accepted, proved that McNeal
- 11 -
had suffered a crushing injury to her upper body and shoulders,
which included the neck or cervical spine. The commission
accepted and relied upon those reports and testimony in finding
that McNeal's "shoulder" injury included an injury to the neck
or cervical spine injury. Because credible evidence supports
the commission's factual finding that McNeal's neck injury was
part of her original compensable injury, I would affirm the
commission's decision.
Furthermore, in my opinion, the majority's extension of the
Shawley holding creates an enormous pitfall for the unwary
claimant who has no obvious reason or incentive to not accept
the benefits to which he or she will be entitled under a
memorandum of agreement in which the employer or insurance
carrier has chosen, and will now be encouraged, to list only one
of the several compensable injuries that the employee may have
received or to describe the injury to the most precise or
restricted body part.
For the foregoing reasons, I respectfully dissent from the
majority opinion.
- 12 -
Fleetwood Homes of VA v. Patricia S. McNeal
Combined Opinion