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OCTOBER 10, 2000

Record No. 1081-00-2

Present: Judges Benton, Coleman and Willis







(Brenda W. Gross, pro se, on

(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.

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 limitations and that employer was not estopped from
raising the defense. In so ruling, the commission found as

[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 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 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.



[1] Pursuant to Code ? 17.1-413, recodifying Code
? 17-116.010, this opinion is not designated for