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Workers’ comp: Neck claim came too late

Foot bone connected to the leg bone. Leg bone connected to the knee bone.

You could almost hear the Court of Appeals humming “dem bones, dem bones, dem dry bones” when they decided a workers’ comp case yesterday.

Under Virginia workers’ comp jurisprudence, the hip bone is not connected to the back bone, and the shoulder bone is not connected to the neck bone, legally speaking.

In Corporate Resources Mgmt. Inc. v. Southers, the court had to decide whether a woman who landed on her left shoulder when she fell in 2003 filed too late to collect comp for her neck symptoms over two years later. The commission awarded benefits, but the employer said the woman’s initial claim only cited a shoulder injury and her neck claim was time-barred.

The appellate panel said that Shawley v. Shea-Ball Constr. Co., a 1975 Virginia Supreme Court case, controlled. There a claimant who first won comp for injuries to his “right hip and left ankle” was too late to subsequently claim benefits for back and right-leg injuries.

But in Southers, the commission interpreted the Shawley time bar to apply “only to a body part unrelated to” the body part named in the initial claim for benefits, Judge D. Arthur Kelsey wrote.

Kelsey said the panel could see no reason “for the commission to assert that the right hip is unrelated to either the back or the right leg (thus not close enough to excuse the time bar in Shawley, but the left shoulder is related to the neck (thus close enough to excuse the time bar in Southers’ case).

“This ad hoc distinction is no distinction at all, much less one to which our judicial imprimatur can be given,” the panel majority said, reversing the claimant’s award.

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