COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
BRENDA W. GROSS
MEMORANDUM OPINION*
v. Record No. 1081-00-2 PER CURIAM
OCTOBER 10, 2000
WYETH-AYERST LABORATORIES AND
CIGNA INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Brenda W. Gross, pro se, on brief).
(Patricia C. Arrighi; Taylor & Walker, P.C.,
on brief), for appellees.
Brenda W. Gross contends that the Workers' Compensation
Commission erred in finding that (1) her claim alleging a neck
injury arising out of an October 8, 1996 injury by accident was
barred by the applicable statute of limitations; and (2) her
neck symptoms were not causally related to her compensable
October 8, 1996 injury by accident. Although her brief contains
six other questions presented, the first two issues were the
only issues considered by the commission in its review opinion.
Accordingly, those are the only issues we will address on
appeal.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Upon reviewing the record and the briefs of the parties, we
conclude that this appeal is without merit. Accordingly, we
summarily affirm the commission's decision. See Rule 5A:27.
"The right to compensation under [the Workers' Compensation
Act] shall be forever barred, unless a claim be filed with the
Commission within two years after the accident." Code
§ 65.2-601.
[I]t is the intent of Code § 65.1-87 that
within [the time prescribed by the section,]
an employee must assert against his employer
any claim that he might have for any injury
growing out of the accident. . . . Failure
to give such notice within [the statutorily
prescribed period] would seriously handicap
the employer . . . in determining whether or
not there was in fact an injury, the nature
and extent thereof, and if related to the
accident. The reason for the limitation
. . . is a compelling one.
Shawley v. Shea-Ball Constr. Co., 216 Va. 442, 446, 219 S.E.2d
849, 853 (1975) (construing former Code § 65.1-87).
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. See James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
The commission denied Gross's claim for a neck injury on
the grounds that it was barred by the applicable statute of
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limitations and that employer was not estopped from raising the
defense. In so ruling, the commission found as follows:
[Gross] initially claimed injuries to her
left elbow and shoulder. On December 10,
1996, she signed [a Memorandum of Agreement]
reflecting injuries to her left arm, hand,
elbow, and shoulder. Accordingly, the
Commission entered an award for those
injuries. . . . [T]here has not been an
award for a neck injury. [Gross] did file a
Claim for Benefits on September 10, 1998,
wherein a neck injury was alleged in an
attached letter. That claim was heard on
November 12, 1998, but the alleged neck
injury was not pursued. Deputy Commissioner
Mercer's December 16, 1998, Opinion did not
address the alleged neck injury. The
November 12, 1998, Hearing and the December
16, 1998, Opinion resolved the September 10,
1998, claim since no issues alleged in that
claim were reserved for a later
determination. The Claim for Benefits for
the neck injury, which is the subject of
this proceeding, was filed on February 9,
1999. The injury by accident occurred in
October 1996. This claim is untimely as it
relates to an alleged neck injury, and the
Commission lacks subject matter
jurisdiction. . . .
Contrary to [Gross's] argument, her
September 10, 1998, Claim for Benefits did
not preserve a neck injury within the
statute of limitations. This claim sought
temporary total disability benefits from
August 11 to August 13, 1998. At the
November 12, 1998, Hearing, the parties
agreed that the sole issue concerned alleged
disability. There was no mention of a neck
condition, nor did [Gross] present evidence
of a neck injury. . . . While the December
16, 1998, Opinion did not make any finding
regarding a neck condition, [Gross] did not
appeal this decision. Also, the alleged
neck claim was not reserved or continued.
The Commission does not try cases piecemeal
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and did not defer the issue of the neck
condition to a later Hearing. The effect is
that [Gross] did not pursue a claim for an
alleged neck injury before February 9, 1999.
[T]he record does not reflect that the
doctrine of imposition should estop the
employer from alleging the statute of
limitations defense. [Gross] had not shown
by clear, precise, and unequivocal evidence
that she detrimentally relied upon the
employer's actions and statements to refrain
from filing a claim. . . . [E]mployer
timely sent her [a Memorandum of Agreement],
Supplemental [Memorandum of Agreement], and
an Agreed Statement of Fact; it filed all
necessary reports; and it paid compensation
and medical benefits. This evidence does
not indicate that the employer acted with
fraudulent intent or concealed a material
fact. Although the insurance adjuster
prepared the [Memorandum of Agreement],
[Gross] voluntarily read and signed it.
The commission's factual findings are supported by credible
evidence in the record. The only injuries included in the
Memorandum of Agreement filed on June 6, 1997 were to Gross's
left arm, left hand, left elbow, and left shoulder. Although
Gross mentioned a neck injury in her September 8, 1998 letter
attached to her September 10, 1998 Claim for Benefits, she did
not pursue a claim for a neck injury at the November 12, 1998
hearing. Moreover, the December 16, 1998 opinion did not
address the issue whether Gross had sustained a neck injury as a
result of her compensable accident. Gross did not appeal that
decision. Thus, Gross's Claim for Benefits for a neck injury
filed on February 9, 1999, more than two years after her October
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8, 1996 compensable accident, was untimely. Furthermore, we
agree with the commission that the record failed to reveal that
employer took any actions that would have estopped it from
raising the statute of limitations defense.
In Shawley, the Supreme Court held that the commission
lacked subject matter jurisdiction to award benefits for injury
to the employee's right ankle and back, where the only injuries
for which the employee filed a timely claim were to his left
ankle and right hip. See 216 Va. at 443-44, 446-47, 219 S.E.2d
at 851-53. The Court has also held that "[j]urisdiction
[ordinarily] . . . cannot be conferred on the Commission by
consent" and that it comes into being "when 'a claim [is] filed'
within two years after the accident." Stuart Circle Hosp. v.
Alderson, 223 Va. 205, 208-09, 288 S.E.2d 445, 447 (1982).
Accordingly, the commission lacked subject matter jurisdiction
to award benefits for a neck injury.
Because our ruling on the statute of limitations issue
disposes of this appeal, we need not address the causation
issue. For these reasons, we affirm the commission's decision.
Affirmed.
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