COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Fitzpatrick
Argued at Alexandria, Virginia
FREEMAN DECORATING COMPANY AND
RELIANCE INSURANCE COMPANY
v. Record No. 2555-94-4 MEMORANDUM OPINION * BY
JUDGE JOHANNA L. FITZPATRICK
JOSEPH TRAMMEL JUNE 6, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Robert C. Baker, Jr. (Mell, Brownell & Baker, on brief),
for appellants.
Alan S. Toppelberg (Alan S. Toppelberg & Associates, on
brief), for appellee.
Freeman Decorating Company and its insurer Reliance
Insurance Company (collectively referred to as employer) appeal
the commission's decision awarding benefits to Joseph Trammel
(claimant). Employer argues that the commission erred in finding
that claimant's change in condition application was not time
barred by Code § 65.2-708(A). We hold that claimant filed an
application within the time allowed by the statute of limitations
and affirm the commission.
Claimant was injured in a work-related accident on September
7, 1991. On April 13, 1992, the commission entered an award for
temporary total disability benefits, approving a memorandum of
agreement entered into by claimant and employer. Employer paid
benefits pursuant to the award from September 6, 1991 to December
29, 1991. Claimant returned to light-duty work on December 30,
*
Pursuant to Code § 17.116.010 this opinion is not
designated for publication.
1991 and to his pre-injury work on January 29, 1992.
Claimant suffered a recurrence of his injury on November 11,
1992. Employer voluntarily paid claimant benefits from November
12, 1992 to December 31, 1993. No memorandum of agreement or
award was ever entered. On July 5, 1993, claimant's attorney
sent a letter to the commission requesting a hearing to determine
permanent partial disability benefits as a result of the November
11, 1992 accident, but no hearing was held. The commission
responded on August 16, 1993, that it would treat claimant's
November 11, 1992 injury as a recurrence of the September 7, 1991
injury. In a September 15, 1993 letter, the commission notified
both parties that it was consolidating the two claims.
Claimant's attorney sent several letters to the commission in
January 1994, requesting that disability payments be reinstated.
Claimant wrote another letter asking for a hearing on February
16, 1994.
In a December 4, 1994 opinion, the commission found that:
(1) employer's voluntary payment of benefits constituted a de
facto award, and (2) employer was estopped from asserting the
statute of limitations in Code § 65.2-708(A) because it failed to
file a memorandum of agreement as required by Code § 65.2-701.
Employer argues that claimant's claim is barred because no
application was filed within the two-year statute of limitations
of Code § 65.2-708(A).
Code § 65.2-708(A) provides as follows:
A. Upon its own motion or upon the
2
application of any party in interest, on the
ground of a change in condition, the
Commission may review any award and on such
review may make an award ending, diminishing
or increasing the compensation previously
awarded, subject to the maximum or minimum
provided in this title, and shall immediately
send to the parties a copy of the award. . .
. No 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 . . . .
The Supreme Court of Virginia has held that "[t]he submission of
a standardized, uniform award review application, although
preferable and more conducive to the orderly administration and
disposition of workmen's compensation claims, is not a
prerequisite for compliance with Code § 65.1-99 [now Code
§ 65.2-708]." Reese v. Wampler Foods, Inc., 222 Va. 249, 255,
278 S.E.2d 870, 873 (1981). This Court has "looked to the
particular facts to determine whether, under the circumstances, a
letter from an employee satisfies the 'application' requirements
of Code § 65.1-99 [now Code § 65.2-708]." Greene v. Gwaltney of
Smithfield, Inc., 13 Va. App. 486, 491, 413 S.E.2d 650, 653
(1992).
We recognize that "[t]he [Workers' Compensation] Act should
be liberally construed in harmony with its humane purpose."
Barnett v. D.L. Bromwell, Inc., 6 Va. App. 30, 34, 366 S.E.2d
271, 272 (1988) (en banc). In Greene, this Court held that the
claimant's letter did not constitute an application under former
Code § 65.1-99 because "[s]he did not request that the commission
take any action or schedule a hearing for her. The letter was
3
purely an inquiry." 13 Va. App. at 491, 413 S.E.2d at 654.
However, in this case, claimant's attorney's letter dated July 5,
1993 specifically requested a hearing, named claimant and
employer as the parties involved, and included the date of the
accident. After this letter, the commission decided to treat the
injury as a recurrence of the former injury but never held a
hearing on whether claimant was entitled to permanent partial
disability benefits as requested. Although the commission found
that a de facto award stayed the statute of limitations, we hold
that, under the circumstances, the July 5, 1993 letter requesting
a hearing was sufficient notice of claimant's claim under Code
§ 65.2-708(A).
Accordingly, the decision of the commission is affirmed.
Affirmed.
4