COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Clements
Argued at Richmond, Virginia
MASSEY BUILDERS SUPPLY CORPORATION,
WOOD PRODUCTS OF VIRGINIA GROUP
SELF-INSURANCE ASSOCIATION AND
TRIGON ADMINISTRATORS
OPINION BY
v. Record No. 0234-01-2 JUDGE LARRY G. ELDER
OCTOBER 9, 2001
WAVERLY GERALD COLGAN
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Patricia C. Arrighi (Taylor & Walker, P.C.,
on brief), for appellants.
Laura Ann McDonald (McDonald Dyer, on brief),
for appellee.
Massey Builders Supply Corporation, Wood Products of
Virginia Group Self-Insurance Association and Trigon
Administrators (employer) appeal from a decision of the Workers'
Compensation Commission awarding benefits to Waverly Gerald
Colgan (claimant). On appeal, employer contends the commission
erroneously determined that claimant filed a timely claim for
benefits before expiration of the statute of limitations. We
hold the documents claimant filed contained sufficient
information to constitute a claim, and we affirm the
commission's decision.
I.
BACKGROUND
On October 28, 1997, while working for employer as an
outside salesman of building products, claimant sustained an
injury to his left knee. Employer accepted the claim as
compensable and provided claimant with all necessary medical
treatment, which included multiple surgeries. Although claimant
was unable to work for various periods following his injury, it
was employer's policy to pay an employee's salary even during
periods of disability.
Employer filed a First Report of Injury with the commission
on January 16, 1998. The commission created a file for that
injury and assigned it V.W.C. File No. 188-97-98. Claimant
subsequently received the commission's standard notification
letter, dated January 21, 1998, an informational booklet, and a
claim for benefits form. On January 29, 1998, claimant mailed
the completed form to the commission. He made a note of the
date of mailing on the notification letter, which he kept for
his records. The commission had no record of having received
that claim.
In September 1999, claimant recalled that "something" had
to be filed with the commission within two years of his
accident. He consulted Betty Bradshaw, the employee who handled
employer's workers' compensation matters, and asked her for "a
copy of anything from . . . the insurance company[] with the
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claim number and so forth on it, that I could forward to the
Commission." Bradshaw resisted claimant's request, informing
him that she had consulted with the carrier and "that everything
had been done and I didn't need to do anything." Within a few
days, however, Bradshaw provided claimant with a copy of a
mostly complete First Report 1 for the injury and a letter that
showed the carrier's claim number. Claimant then wrote a brief
note, which he forwarded to the commission with the documents he
received from Bradshaw, in order "to make absolutely sure that
my rights were being protected." That note, dated "10/6/99" and
addressed "TO WHOM IT MAY CONCERN," read as follows:
Please be advised that my injury is
still being treated. I have at least (2)
more surgeries scheduled to correct a[n] RSD
problem. The first is scheduled for 10/28
by Dr. Mike Decker.
The letter was signed, but the signature was illegible.
However, accompanying the letter was a copy of employer's First
Report, which listed claimant's name and address, employer's
name and address, and the date and time of claimant's injury,
and described how and where the injury occurred. Both documents
were stamped as received by the commission on October 26, 1999.
Claimant's letter and accompanying documents were received
by the commission's mail room, as reflected by the "charge code
1
The First Report was unsigned and lacked a required
"reason code" number usually inserted by the employer or
carrier.
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number 99," and forwarded to the commission's First Report Unit.
Someone in that unit had a duty to check the commission's
records to determine whether claimant's injury had previously
been reported and a commission number assigned. Although a
claim number had already been assigned to that injury, the First
Report Unit either failed to check for that number or
erroneously determined that the injury had not previously been
reported. As a result, the letter and attachments were
forwarded to Casey Barnett, an employee of the First Report
Unit. Barnett treated the documents as an incomplete first
report and returned them to the carrier for proper completion
and resubmission. Because the First Report listed no dates of
incapacity and indicated no lost time from work, Barnett assumed
the report was for a minor injury and recorded it as such in the
commission's computer records. In accordance with the
commission's usual procedure under such circumstances, Barnett
did not create a file and did not retain the original or a copy
of the submission.
Sandy Close, the adjuster for the insurer who was handling
claimant's case in the fall of 1999, received claimant's
original note and attachment upon their return from the
commission. Prior to October 28, 1999, the insurer had paid
claimant's medical benefits but was unaware that any wage loss
had occurred and had not paid any wage loss benefits. After
that date, Close contacted the commission and was told that no
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claim had been filed or award entered. On November 12, 1999,
claimant contacted Close to inquire why medical benefits for his
knee injury were being denied, and she informed him that the
statute of limitations for filing a claim had expired. Claimant
learned for the first time that his "claim . . . hadn't been
filed properly" and that the commission had sent the original
documents to Close.
Claimant then retained counsel and filed an application for
hearing, alleging that his October 26, 1999 submission
constituted the timely filing of a claim or, in the alternative,
that the doctrine of imposition applied. He sought an award of
temporary total disability benefits, for record purposes only,
for various dates from 1997 to 1999 for which he had received
his regular salary. He also sought an award of temporary
partial disability benefits for various dates in 1999 and
payment of medical benefits.
The deputy commissioner determined claimant's October 6,
1999 submission, received by the commission on October 26, 1999,
was sufficient to constitute an original claim for benefits
which was timely filed. The deputy commissioner also entered an
award for medical benefits and disability compensation for
various periods of temporary partial and temporary total
disability.
Employer appealed only the statute of limitations issue,
and the commission affirmed. It noted that the unrepresented
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claimant had submitted, prior to expiration of the statute of
limitations, documents which, taken in conjunction, identified
him, the employer and insurer; detailed the accident date and
the injuries he sustained; and indicated that he continued to
seek medical treatment and required at least two additional
surgeries. The commission held his submission made clear his
intention to protect his right to further benefits. Noting that
the employer and insurer were "well aware of the claimant's
accident, and of his ongoing medical difficulties," the
commission concluded that the documents were sufficient to
invoke the jurisdiction of the commission because they "'fairly
apprised the commission that a claim was being made,'" despite
the fact that their purpose was misconstrued by the commission
employees who originally processed them and returned them to the
insurer.
II.
ANALYSIS
The Workers' Compensation Act (Act) provides that "[t]he
right to [workers'] compensation [benefits] under [Title 65.2]
shall be forever barred, unless a claim be filed with the
Commission within two years after the accident." Code
§ 65.2-601. The timely filing of an original claim is
jurisdictional, and a claimant bears the burden of proving his
claim was timely filed. E.g., Binswanger Glass Co. v. Wallace,
214 Va. 70, 73, 197 S.E.2d 191, 193 (1973). Filing with the
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employer or anyone else is insufficient; the claim must be filed
with the commission in order to be considered timely. See
Cheski v. Arlington County Pub. Schs., 16 Va. App. 936, 938, 434
S.E.2d 353, 355 (1993).
The basic nature of the notice required
by [the Workers' Compensation Act] and the
necessity for an applicable jurisdictional
limitation are apparent. Such notice is
often the first knowledge that an employer
and his insurance carrier have of an
accident and of their potential liability.
It is this notice that sets in motion the
machinery to determine whether or not an
employee has in fact been injured, the
nature of the injury, whether it arose out
of and in the course of his employment,
whether permanent or temporary, and whether
compensable or not. This is the notice
which activates the right of the employee to
compensation and which invokes the
jurisdiction of the . . . Commission.
Binswanger, 214 Va. at 73, 197 S.E.2d at 194.
Despite requiring the timely filing of a "claim," the Act
"does not give a definition of 'claim.'" Garcia v. Mantech
Int'l Corp., 2 Va. App. 749, 752, 347 S.E.2d 548, 550 (1986).
As the record in this case reveals, the commission disseminates
a standardized claim form on which an injured employee may
report an industrial injury, but neither the Act nor the
commission's rules require that a claim must be filed on that or
any other form. See Code §§ 65.2-600, 65.2-601. Commission
Rule 1.1 provides as a guide that:
An original claim for benefits shall be in
writing, signed and should set forth:
1. Employee's name and address;
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2. Employer's name and address;
3. Date of accident . . . ;
4. Nature of injury . . . ;
5. Benefits sought: temporary total,
temporary partial, permanent total,
permanent partial or medical benefits; [and]
6. Periods of disability, if appropriate.
(Emphasis added). "[T]he word 'shall[]' is primarily
mandatory," whereas "[t]he word 'should' ordinarily . . .
implies no more than expediency . . . [and is] directory only."
Brushy Ridge Coal Co. v. Blevins, 6 Va. App. 73, 78, 367 S.E.2d
204, 206 (1988) (in evaluating adequacy of request for review
filed pursuant to former Commission Rule 2(A), holding that use
of word "should" in rule does not prevent commission from
obtaining jurisdiction over issues not raised therein). Thus,
Commission Rule 1.1, standing alone, does not automatically
exclude from consideration a claim which omits one or more of
the items of information which the rule says a claim "should set
forth."
As we previously noted in affirming the decision of the
commission to accept as a claim a letter from a claimant's
lawyer to the commission, "[t]he [commission] is not bound by
technical rules of pleading or practice." Trammel Crow Co. v.
Redmond, 12 Va. App. 610, 614, 405 S.E.2d 632, 634 (1991). A
letter is sufficient to constitute a claim if it "identif[ies]
the employer, the date of the accident, the location of the
accident, and the injuries suffered" and "'fairly apprise[s] the
commission that a claim [is] being made'" on behalf of the
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employee. Cheski, 16 Va. App. at 938, 434 S.E.2d at 355
(quoting Redmond, 12 Va. App. at 614, 405 S.E.2d at 634)
(emphasis added); see also Chalkley v. Nolde Bros. Inc., 186 Va.
900, 912, 45 S.E.2d 297, 302 (1947) (construing as timely filed
claim a letter from counsel representing employer which
requested determination of employer's rights and asked that
injured boy, argued to be an employee by third-party tortfeasor
in related civil suit, and workers' compensation carrier be made
parties to the proceedings).
Further, as we held implicitly in Cheski, these requisites
need not be contained in the same document, as long as the
documents, when construed together, satisfy the requirements set
out in Redmond. Cheski, 16 Va. App. at 938-39, 434 S.E.2d at
354-55 (rejecting argument that "[t]he two letters" from
employer's agent which employee sent to commission constituted a
claim because "they" did not identify the location of the
accident or the injuries suffered and did not fairly apprise the
commission that a claim on behalf of the employee was being
made). Finally, a claimant need not request a hearing or
determination of rights in order for his filing to be considered
a claim. See Redmond, 12 Va. App. at 613-14, 405 S.E.2d at 634.
Here, claimant simultaneously submitted to the commission a
signed, handwritten note and a mostly complete copy of the First
Report, previously filed with the commission by employer. Under
the above principles, we hold the evidence supports the
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commission's determination that these documents, viewed
together, contained sufficient information to constitute a
claim. 2 Although the signature on claimant's handwritten note
was illegible, the note indicated in legible print that "my
injury is still being treated," and the accompanying First
Report clearly identified a left knee injury sustained by
claimant at 1:00 p.m. on October 28, 1997 while working for
Massey Builders Supply Corp. The First Report provided
addresses for both claimant and employer. The First Report also
indicated the injury occurred when claimant slipped and twisted
his left knee while "walking down ramp on construction site" in
Chesterfield County. Finally, the handwritten note indicated
claimant's need, at a minimum, for ongoing medical benefits to
cover two additional surgeries, one of which was scheduled for
later that same month, to correct an "RSD problem." Thus,
claimant's submissions met the minimum requirements of Redmond
and Cheski because, construed together, they "identif[ied] the
employer, the date of the accident, the location of the
accident, and the injuries suffered," and "fairly apprise[d] the
commission that a claim [for benefits was] being made." Thus,
had the claim been properly handled by the commission, its
2
Because these documents were submitted simultaneously by
the claimant, we need not consider whether or under what
circumstances separately filed documents or letters which
attempt merely to incorporate by reference previously filed
documents would satisfy the Act's filing requirements.
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filing would have triggered official notice to employer, as
contemplated by the Court in Binswanger when it noted that such
filing "is often the first knowledge that an employer and his
insurance carrier have of an accident and their potential
liability." 3 214 Va. at 73, 197 S.E.2d at 194.
That claimant did not personally prepare the First Report,
a copy of which employer previously had filed with the
commission, or refer to the report in his accompanying note is
not dispositive; as the claimant asserts, it was the content of
the document, not its status as a First Report, that was
relevant to the statute of limitations issue. Further, as the
commission appropriately found, the fact that commission
employees erroneously concluded claimant's injury had not
previously been reported, which caused it to view the documents
as an incomplete First Report submitted by the employer rather
than as an original claim for benefits from the employee, was
not controlling. Undisputed evidence established that
claimant's submissions, though improperly interpreted, were
received by the commission prior to expiration of the statute of
limitations and met the minimum requirements for an original
claim for benefits.
3
Although we note, as the commission did, that lack of
prejudice to employer is not a defense to an employee's failure
to file a timely claim, the evidence here indicates that
employer was "well aware" of claimant's accident and ongoing
medical problems and accepted the resulting injuries as
compensable until the statute of limitations expired.
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For these reasons, we hold the commission properly
interpreted claimant's submissions as a timely claim for
benefits, and we affirm the award.
Affirmed.
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