Corporate Resource Management, Inc. v. Southers

*30ELDER, J.,

dissenting.

I believe the majority both (1) fails to defer to the commission’s findings of fact, which are supported by credible evidence, and (2) interprets Code § 65.2-601 and the Supreme Court’s holding in Shawley v. Shea-Ball Construction Co., 216 Va. 442, 219 S.E.2d 849 (1975), much too narrowly on the facts of this case. Employer did not dispute claimant suffered a neck injury that manifested itself primarily as chronic shoulder pain, and employer accepted a “shoulder” injury as compensable. I would hold employer’s acceptance of the chronic symptoms as a compensable shoulder injury satisfied the statute of limitations because claimant’s medical records document that, prior to expiration of the statute of limitations, claimant’s symptoms consistently involved both her shoulder and her neck; an award for a shoulder injury was entered when the symptoms had been diagnosed as only a shoulder injury; and claimant received a diagnosis of neck injury only after the applicable statute of limitations had run.5 Thus, I would affirm the commission’s award of benefits, and I respectfully dissent.

I.

Because I believe the holding in Shawley indicates the contents of claimant’s medical records are relevant to the analysis of the statute of limitations issue, particularly because of their repeated references to neck pain within the statutory period, I find it necessary to summarize claimant’s records, course of treatment, and the procedural history of the claim in greater detail than does the majority. Because claimant prevailed before the commission, I recite that evidence in the light most favorable to claimant. See, e.g., Crisp v. Brown’s Tysons Corner Dodge, Inc., 1 Va.App. 503, 504, 339 S.E.2d 916, 916 (1986).

*31Claimant sustained an injury by accident on May 28, 2003, when she was vacuuming and fell backward down a series of four steps while working as a housecleaner for Cottage Care, a division of Corporate Resource Management (CRM). She was carrying a “portavac” around her neck, and when she fell, she landed with all her weight on her left shoulder. She sought medical treatment, complaining of pain throughout her entire left shoulder and across the back of the shoulder blade that “moves to [the] left side of [her] neck.” She came under the care of an orthopaedist, Dr. Praveer Srivastava, who ordered various tests, including a left shoulder MRI, and a course of physical therapy but was unable to determine the source of claimant’s shoulder and neck pain. When a course of work hardening resulted in some improvement, Dr. Srivastava released claimant to return to work without restrictions, but within a few weeks, she reported a recurrence of “severe[ ] symptom[s]” in her shoulder and neck and was again excused from work.

Dr. Wilhelm A. Zuelzer, who saw claimant in October 2003 to render a second opinion, also noted claimant’s ongoing neck and left shoulder pain. Dr. Zuelzer opined claimant’s shoulder was “fíne” and was not the source of her symptoms. He recommended an MRI of the neck but indicated he thought that, regardless of what the MRI showed, claimant’s ongoing pain “more than likely is coming from [the neck] area.” After receiving Dr. Zuelzer’s recommendations, Dr. Srivastava ordered additional tests including an MRI of claimant’s cervical spine. The MRI revealed only a “[m]inimal C5-6 posterior disc bulge” and was “otherwise normal.” When claimant returned to Dr. Srivastava on November 20, 2003, with “unchanged symptoms” including persistent neck and left shoulder pain, Dr. Srivastava informed her that her various tests revealed no significant abnormalities, and he released her to regular duty. Thereafter, claimant experienced “[ongoing] neck and shoulder pain,” but Dr. Srivastava refused to treat her because “the bills were not paid at that time.”

During that time frame, employer and its purported insurance carrier were engaged in a dispute over whether employer *32had coverage at the time of claimant’s accident. Claimant had no private health insurance and also had insufficient funds to obtain her own medical treatment because she was unable to work due to her injury during that time. Thus, although she experienced ongoing pain, she received no medical treatment for it from late 2003 until mid-2005.

In late 2003, claimant sought additional temporary total disability benefits, but the dispute between employer and the carrier delayed resolution of this claim. In March 2005, employer accepted liability for the additional period of temporary total disability. An award for disability and lifetime medical benefits for the shoulder injury was entered on May 2, 2005, and at claimant’s request, employer offered her a new panel of physicians on May 11, 2005. Claimant chose a new treating physician from the list but was not able to obtain an appointment with him until June 8, 2005, two years and approximately two weeks after her accident of May 23, 2003.

When claimant saw her new treating physician, Dr. John Frederick Meyers, on June 8, 2005, she reported chronic pain in her left upper back and shoulder, and Dr. Meyers noted tenderness and limited rotation in claimant’s neck. He diagnosed her as having cervical radiculitis. After a spine surgeon determined claimant was not a candidate for surgery, she was referred to a pain management physician, Dr. Michael DePalma.

Dr. DePalma performed a series of diagnostic injections and opined that claimant had facet joint arthrosis of the cervical spine at C5-6. Dr. DePalma indicated that “[t]he primary source of [claimant’s] pain was the [facet] joint” and explained that this was a different diagnosis categorically from C6 radiculopathy, which is a dysfunction of the nerve root at the vertebral joint rather than at the facet joint. He also noted that “[f]acet joint arthrosis is ... difficult to completely discern just on MRI findings.” Finally, he opined to a reasonable degree of medical probability that claimant’s work-related fall caused the injury to her cervical spine, which was the source of her symptoms and work restrictions.

*33When claimant filed a new change-in-condition application, employer contended the claim for a neck injury was barred by the statute of limitations because her original claim was for an injury to her left shoulder only.6 At the hearing before the deputy, claimant testified that the primary pain she experienced was consistently in the same part of her body, which she described as her entire back left shoulder with radiation into her left arm and hand. She testified that Dr. Meyers, whom she first saw over two years after the accident, was the first physician to tell her that her “injury was coming from [her] neck.” She denied having “any other accidents of any kind whatsoever since [her] original accident back in 2003.” She agreed that she signed the Agreement to Pay Benefits form on September 18, 2003, listing her injury as a “contusion to [her] left shoulder” and that she had an attorney when she did so, but she indicated she did not complete the form herself.

The deputy concluded that claimant’s claim was not barred by the statute of limitations, reasoning as follows:

[T]he Agreement to Pay Benefits form reflects a contusion to the left shoulder. Medical records reflect some neck pain____ Despite conflicting opinions about the etiology of the claimant’s symptoms, it is clear that they have their origin in the occupational accident and have manifested themselves primarily as shoulder symptoms. The claimant could not reasonably be expected to file a claim for a neck injury when none had been diagnosed, and we do not believe her claim is time-barred because a new physician now *34disagrees with the earlier diagnosis as to the etiology of her symptoms.

The deputy further noted that the claim did not involve a situation in which claimant sustained multiple injuries to different parts of the body and filed a timely claim for injury to only one of those body parts.

Employer filed a request for review, and the commission affirmed, with one commissioner dissenting. The majority reasoned as follows:

The Agreement to Pay Benefits form indicated the nature of injury to be a contusion to the left shoulder. The claimant has consistently complained of pain in the lateral section of her shoulder, which at times included neck pain and radiation both down the arm and up the neck. It is uncontradicted that her symptoms never changed from the date of the accident. While the claimant complained of neck and shoulder complaints, she received various diagnoses relating only to the shoulder and it was not until she underwent substantial diagnostic evaluations that Drs. Meyers and DePalma diagnosed her with a neck injury.
Therefore, we find that this is not a case involving injuries to two separate body parts but the same injury throughout the course of treatment, now presenting with an altered diagnosis. We find that the constant symptoms caused by the injury encompassed both the shoulder and neck and neither the nature of the injury nor the manifestation of the symptoms have changed since the date of injury or when the Agreement to Pay Benefits form was executed. The claimant’s symptoms have consistently manifested in shoulder pain which [only] recently [has been] attributed to claimant’s neck injury. We agree with the Deputy Commissioner that it was reasonable for the claimant to have relied on the treating physician’s diagnoses in seeking benefits relating to the shoulder contusion and it would be unreasonable to expect a claimant to file a claim for an injury to a body part, for the same symptoms for which the claimed diagnosis was made, for which her physician had not identified any specific injury.

*35The commission noted that employer had notice of the accident and injury and that the Act does not “impose a duty on employees to amend agreement forms with each new development in treatment.” It distinguished the holding in Shawley as involving the untimely filing of a claim for a body part wholly unrelated to the body part named in the initial claim for benefits.

Employer noted this appeal.

II.

On appeal, we are to find guidance in the principle that the Workers’ Compensation Act “is highly remedial.” Henderson v. Cent. Tel. Co., 233 Va. 377, 382, 355 S.E.2d 596, 599 (1987). Although “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), the Act should nevertheless “be liberally construed to advance its purpose ... [of compensating employees] for accidental injuries resulting from the hazards of the employment,” Henderson, 233 Va. at 382, 355 S.E.2d at 599. “Although ‘we are not bound by the commission’s legal analysis in this or prior cases,’ we give great weight to the commission’s construction of the Act, and we defer to the commission’s factual findings if supported by credible evidence in the record.” Bay Concrete Constr. Co. v. Davis, 43 Va.App. 528, 538-39, 600 S.E.2d 144, 150 (2004) (quoting USAir, Inc. v. Joyce, 27 Va.App. 184, 189 n. 1, 497 S.E.2d 904, 906 n. 1 (1998)) (citations omitted).

Via Code § 65.2-601, the legislature has provided that “[t]he 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.” The statute of limitations in Code § 65.2-601 is jurisdictional. Barksdale v. H.O. Engen, Inc., 218 Va. 496, 497, 237 S.E.2d 794, 795 (1977).

*36The Supreme Court applied the statute of limitations in the seminal case of Shawley,7 holding that a timely claim for injury to an employee’s left ankle and right hip did not preserve a claim for injury to his back and right ankle in a case in which, the Supreme Court emphasized, the medical records gave no indication of any injury to the back and right ankle until after the statute of limitations had passed. 216 Va. at 443-47, 219 S.E.2d at 851-53. The Supreme Court noted the commission’s factual findings that “the back and right ankle claims asserted by [Shawley] were for injuries not covered by the memorandum of agreement or [the commission’s] original award” and that Shawley made “ ‘no assertion or complaint of back or right leg injury1 ” until after the applicable statute of limitations had expired. Id. at 444, 445, 219 S.E.2d at 851, 852 (emphasis added).

Here, the majority, relying on Shawley, concludes that a timely claim was filed only for claimant’s shoulder injury and that, because it is undisputed claimant’s current disability stems from an injury to her cervical spine rather than her shoulder, the statute of limitations bars her from receiving benefits for the cervical spine injury. I believe Shawley is factually distinguishable and does not support the result the majority reaches.8

*37In Skawley, the Court cited as “compelling” reasons for requiring a claimant to file a timely claim for all injuries sustained in a particular accident the need of the employer to “determin[e] whether or not there was in fact an injury, the nature and extent thereof, and if related to the accident.” Id. at 446, 219 S.E.2d at 858. It also noted that the filing of a timely claim allows an employer to obtain “the treatment *38necessary to effect a cure of the claimant and to minimize the employer’s liability.” Id. at 447, 219 S.E.2d at 853. Because Shawley reported only an injury to his left ankle and right hip, the employer had no notice that Shawley contended his back and right ankle were involved; no opportunity to make a contemporaneous determination about whether the back and right ankle injuries could, in fact, have been sustained in the accident reported; and no ability to obtain timely medical treatment for those body parts not originally listed in order to minimize its liability for disability and medical treatment resulting from injury to those parts. In addition to noting Shawley did not file a timely claim for injury to those body parts, the Supreme Court emphasized that “[a]n examination of the medical reports and other documents submitted within the [statute of limitations] period from the date of the accident fail[ed] to disclose any reference to an injury to Shawley’s back or to his right leg or right ankle” and that “[n]owhere in any of the reports [was] it recorded that Shawley complained of such an injury within that period.” Id. at 444-47, 219 S.E.2d at 851-53. Thus, the Court found relevant both the failure to file a formal claim listing injuries to the back and right ankle prior to expiration of the statute of limitations and the absence of any mention of injury to those body parts in the medical records prior to expiration of the statute of limitations.

Claimant’s situation is readily distinguishable. In claimant’s case, claimant reported falling on her left shoulder, and employer accepted as compensable the injury to claimant’s left shoulder. In marked contrast to Shawley, the commission found that, contemporaneously with the accident and prior to expiration of the statute of limitations, claimant “consistently complained of pain in the lateral section of her [left] shoulder, which at times included neck pain and radiation ... up the neck.” The medical records support this finding.9

*39Thus, here, unlike in Shawley, claimant’s timely claim for a left shoulder injury and her consistent complaints to her medical providers of pain in her left shoulder radiating into her neck gave employer all the notice it needed to meet the objectives that Shawley termed “compelling” reasons requiring the timely filing of a claim for all injured body parts.10 Employer had timely notice of claimant’s assertion that she suffered a significant blow to her left shoulder area, and claimant received timely medical attention for the affected, interrelated body parts. Claimant, a layperson with a ninth *40grade education, could not be expected to know precisely where her scapular region ended and her cervical region began. Further, neither claimant’s original treating physician nor the physician who performed an independent medical examination at employer’s request was successful in determining the precise source of claimant’s radiating shoulder pain before the statute of limitations had expired. In fact, both these physicians purported to exclude claimant’s cervical region as the source of her chronic pain.

The commission’s finding that claimant’s cervical spine injury was encompassed by the award for her shoulder injury was supported by credible evidence in the record. As the commission stated,

it was reasonable for the claimant to have relied on the treating physician’s diagnoses in seeking benefits relating to the shoulder contusion and it would be unreasonable to expect a claimant to file a claim for an injury to a body part, for the same symptoms for which the claimed diagnosis was made, for which her treating physician had not identified any specific injury.

Application of such reasoning under the facts of this case does not contravene Shawley’s holding regarding the “compelling” reasons entitling an employer to timely notice of a particular injury.11 Here, claimant received timely medical *41treatment for the symptoms caused by her industrial accident,12 although her physicians were not initially successful in identifying their source. When the “primary source” of claimant’s chronic pain was finally diagnosed as “facet joint arthrosis” of the cervical spine at C5-6, employer had the opportunity to contest causation and was not held to its prior acceptance of claimant’s injury to her “shoulder” as binding it to cover the newly diagnosed source of claimant’s pain. Employer does not contest the commission’s determination of causation in this appeal and does not contend that it might somehow have proved the injury to claimant’s cervical spine was unrelated to the industrial accident if it had received notice of the precise mechanism of claimant’s injury within the statutory period. The fact that employer did not learn at an earlier time the precise mechanism causing claimant’s chronic pain was not the fault of the claimant, and applying the statute of limitations on these facts would provide a windfall to employer.

*42III.

On these facts, I would hold that the commission’s entry of an award for medical and disability benefits for claimant’s “shoulder injury” of May 23, 2003, covered the cervical spine facet joint arthrosis injury that manifested itself in claimant’s chronic shoulder and neck pain. Thus, I would affirm the commission’s award of benefits, and I respectfully dissent.

. Employer remained free to challenge causation based on the new diagnosis, and employer in fact did before the commission in this case.

. Claimant "relie[d] on estoppel or imposition, given the complicated procedural history” of the claim. As the deputy explained claimant’s argument, "the prior claim was not resolved until May 2005. A new panel was then awarded. By the time the claimant saw the new doctor [who she testified was the first to diagnose her injury as being to her neck], it was more than two years beyond the date of accident.”

Although claimant raised the doctrine of imposition before both the deputy and the commission, the commission chose to make no ruling on the application of the doctrine because it found the statute of limitations did not bar the claim. Although imposition may have provided the commission with an alternative basis for awarding benefits, it did not hold that imposition applied, and we may not consider application of this doctrine on appeal.

. Shawley was decided under Code § 65.1-87, the predecessor to present Code § 65.2-601, which provided a one-year statute of limitations.

. The majority also cites our recent decision in Tuck v. Goodyear Tire & Rubber Co., 47 Va.App. 276, 623 S.E.2d 433 (2005), in support of its holding. I disagree that Tuck supports the interpretation of Shawley the majority applies in the instant case.

The decision in Tuck was based in large part on the unique facts as found by the commission in that case. As the commission indicated, Tuck's emergency room records noted "[cjervical and back spasms in addition to a right shoulder contusion,” and "the diagnosis was a right shoulder contusion, and neck and lumbar strains.” Tuck, No. 204-66-57, 2005 Va Wrk. Comp. Lexis 274, at *2 (Apr. 8, 2005). Tuck's treating orthopedic physician "diagnosed a right rotator cuff tear, and 'aggravation of cervical and lumbar DDD with cervical and LS strain/sprain.’ A November 22, 2000, Attending Physician's State*37ment noted that the claimant ‘injured R shoulder; neck and back; R hand’ in the accident.” Id.

Although Tuck had originally filed claims that included her upper back and hand, she and the carrier thereafter executed multiple memoranda of agreement that named only the lower back and right shoulder and did not include the upper back and hand. 47 Va.App. at 279-80, 623 S.E.2d at 434-35. The commission then wrote to Tuck stating that if all issues raised in her amended claim for benefits had been resolved, she should notify the commission in writing that the scheduled hearing was not needed. Id. at 280, 623 S.E.2d at 435. In response, Tuck "filed a hand-written letter requesting that the dispute be removed from the hearing docket.” Id. When Tuck later again sought benefits for her upper back and right hand, as well as her neck, the commission found, based on Tuck’s earlier written representations, that the memoranda of agreement resolved all issues regarding what body parts her 2001 claim stated had been injured. Id. at 282, 623 S.E.2d at 436. We held on appeal that "[cjredible evidence supported the commission’s decision ... that the parties’ [Memoranda of Agreement] resolved all issues raised in [Tuck’s] April 2001 claims for benefits and that [Tuck] did not prove mutual mistake.” Id. at 286, 623 S.E.2d at 438.

We did not separately address in Tuck, as the Supreme Court did in Shawley, whether the carrier or employer had notice that Tuck claimed injury to the upper back and hand in the industrial accident; Tuck’s employer clearly had notice of the upper back and hand injuries but also had notice, as found by the commission, that claimant had affirmatively abandoned any claim she might have had for coverage of those parts. Although Tuck had not previously specified a "neck” injury in the claims she filed with the commission, she had expressly claimed injury to her upper back, which the medical records indicated were in the cervical spine, i.e., the upper back. Further, both the commission and this Court analyzed the question of whether claimant could assert and withdraw claims " 'and then return later to revive resolved claims,’ ” concluding " ‘the evidence does not indicate that the employer intended to accept [Tuck’s] claim for a neck injury and mistakenly omitted the neck in the [memorandum of agreement].' ” Id. at 283, 284, 623 S.E.2d at 436, 437 (quoting commission's opinion) (emphasis added); see also id. at 284, 623 S.E.2d at 437 ("Because evidence supports the commission’s finding that the 2001 claims were resolved and that [Tuck] did not prove mutual mistake of fact, the only issue is whether [Tuck’s] April and May 2003 claims for benefits for injury to her neck and right hand are barred by the statute of limitations.”).

. Claimant testified that she did not report neck pain to her medical providers, although frequent notations about reports of neck pain appear in her medical records. The deputy considered this testimony *39in his opinion but implicitly concluded it did not compel the finding that claimant made no such reports. The commission also found as a fact that claimant "consistently complained of pain in the lateral section of her shoulder, which at times included neck pain and radiation both down the arm and up the neck.”

Credible evidence in the record supports these findings. Further, these findings do not run afoul of the ruling announced in Massie v. Firmstone, 134 Va. 450, 462, 114 S.E. 652, 656 (1922), which provides that, although a party offering witnesses giving conflicting testimony may ask the court to accept the more favorable testimony, that principle is not applicable "to the testimony which [the litigant] gives himself” because "[n]o litigant can successfully ask a court or jury to believe that he has not told the truth.” The holding in Massie applies to "statement[s] of fact within [the litigant’s] knowledge” but not to “expression[s] of opinion.” Ford Motor Co. v. Bartholomew, 224 Va. 421, 431, 297 S.E.2d 675, 680 (1982).

On this record, the evidence supported a finding that claimant’s testimony that she did not report neck pain to her medical providers was not a "statement of fact within [her] knowledge” in the sense that she was a layperson with a ninth grade education and no medical training. The commission was entitled to conclude that this seeming discrepancy between claimant’s testimony and her medical records resulted from the fact that claimant could merely have shown the various treating medical personnel where she hurt, after which they determined the appropriate name for the part of the body part or parts to which she referred. Clearly, the primary location of claimant's pain was her left shoulder, and as set out infra in the text, claimant, a layperson with a ninth grade education, could not be expected to know with anatomic precision where her scapular region ended and her cervical region began.

. The unpublished Court of Appeals decisions relied upon by the dissenting commissioner and employer on brief, and noted by the majority in this appeal, are not controlling. See, e.g., Fairfax County Sch. Bd. v. Rose, 29 Va.App. 32, 39 n. 3, 509 S.E.2d 525, 528 n. 3 (1999) (en banc) (noting that unpublished opinions of Court of Appeals have no precedential value).

. The majority opinion states that “the only timely claim asserted by Southers identified her injury as a 'contusion to the left shoulder.’ ” (Emphasis added). However, the record indicates that Southers merely indicated where she hurt, which medical records show was “throughout her entire left shoulder,” "across the back of the shoulder blade,” and "mov[ing] to her left side of the neck.” Although claimant was represented by counsel, it was employer, not claimant or claimant’s counsel, who prepared the agreement to pay benefits for a left shoulder contusion that claimant executed and upon which the award of benefits was based.

Barring benefits for claimant's neck injury on these facts opens the door wide to undesirable consequences that do not further the purpose of the Act and are not compelled by Code § 65.2-601 or Shawley. As Judge Coleman aptly observed in dissenting from a prior unpublished decision on this issue, such a holding

*41creates 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 [an agreement to pay benefits] 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.

Fleetwood Homes of Va., Inc. v. McNeal, No. 2236-00-3, 2001 WL 618190, at *5, 2001 Va.App. Lexis 311, at *13-*14 (June 5, 2001) (Coleman, J., dissenting) (emphasis added).

. Notably, the claimant is entitled to receive necessary medical treatment for her ongoing shoulder problems. See Quality Inn Executive v. Umana, No. 1593-98-4, 1999 WL 1129971, 1999 Va.App. Lexis 344 (June 15, 1999) (affirming decision of commission holding claim for neck injury was barred by statute of limitations but that, because claim for shoulder injury was timely filed, " ‘treatment for the claimant’s cervical condition is necessary treatment related to the compensable accident to the extent that it is necessary to treat symptoms related to the shoulder injury’ ”); see also Rose, 29 Va.App. at 39 n. 3, 509 S.E.2d at 528 n. 3 (noting Court’s unpublished opinions have no precedential value but that court or commission "does not err by considering the rationale and adopting it to the extent it is persuasive”).