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OCTOBER 9, 2001

Record No. 0234-01-2

Present: Chief Judge Fitzpatrick, Judges Elder
and Clements

Argued at Richmond, Virginia








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.



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 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 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 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

Employer appealed only the statute of
limitations issue, and the commission affirmed. It noted that the
unrepresented 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.



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 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.
, 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 . . .

Binswanger, 214 Va. at 73, 197 S.E.2d at

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

1. Employee’s name and address;

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

(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

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 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

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 commission’s determination that these documents,
viewed together, contained sufficient information to constitute a
[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
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
[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.

For these reasons, we hold the commission
properly interpreted claimant’s submissions as a timely claim for
benefits, and we affirm the award.




[1] The First Report was unsigned and
lacked a required "reason code" number usually inserted
by the employer or carrier.

[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

[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.