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et al.



JULY 3, 2001

Record No. 2727-00-3








Present: Judges Bray, Clements and Agee

Argued at Salem, Virginia

R. Ferrell Newman (Thompson,
Smithers, Newman, Wade & Childress, on
brief), for appellants.

A. Thomas Lane, Jr., for

On this appeal, McKee Foods Corporation and its
insurer, St. Paul Fire & Marine Insurance Company,
(collectively referred herein as "the employer"),
appeal the decision of the Virginia Workers’ Compensation
Commission ("the commission") in which it found it had
jurisdiction to adjudicate a claim filed by Tony Duane Atkins
("the claimant") on April 12, 2000. The employer
contends that the statute of limitations barred the commission
from asserting jurisdiction in this matter and, for the

following reasons, we agree with the employer
and reverse the decision.


The claimant was employed with the employer as
a truck driver on October 15, 1997, when he was involved in a
motor vehicle accident in which his right arm was injured. Each
physician who treated the claimant consistently diagnosed his
symptoms as relating to an injury to his right arm or shoulder.
The incident was timely reported, and the employer accepted the
injuries as compensable. After surgery was performed on November
26, 1997, the claimant was released to return to work without
restrictions and remained so engaged for over a year.

A Memorandum of Agreement ("the
agreement"), reflecting the injury as a "strain of
upper extremity," was executed by the parties and filed with
the commission on November 19, 1997. Pursuant to the agreement,
the commission entered an award providing for the payment of
disability and medical treatment for the claimant’s injury.

In June 1999, the claimant returned to the
orthopedist who performed surgery on his shoulder after the
accident and complained of renewed problems with his shoulder.
The orthopedist, Dr. Burgess, found "no evidence of cervical
radioculopathy." He referred the claimant for a neurological
examination, which found "no neurologic[al] evidence of
cervical radioculopathy." Claimant’s symptoms were
"muscular in nature related to his shoulder injury."

On October 25, 1999, the claimant again
returned to the orthopedist. Subsequent testing revealed that the
claimant’s current symptoms were likely due to a disc bulge at
C4-5. The claimant submitted his medical bills for payment under
the 1997 agreement. The employer advised the claimant that it
would only cover the bills associated with treatment of the right
shoulder, not for a neck injury. On April 12, 2000, the claimant
filed an application with the commission requesting that his
"neck and/or cervical conditions" be considered
injuries covered under the agreement.

The employer defended averring the commission
was without jurisdiction to hear the claim as it was barred by
the expiration of the statute of limitations in Code
? 65.2-601. The deputy commissioner agreed with the
employer and denied the claimant’s application, noting that it
was filed over two years after the accident date and, therefore,
the commission was without jurisdiction to consider the matter.
This decision was reversed upon review by the full commission,
which held the statute of limitations did not bar the claimant’s
application. Simply stated, the commission, broadly construing
the agreement, found it covered the alleged cervical injury and,
therefore, was not barred by the statute of limitations.
Commissioner Tarr dissented. We disagree with the commission and
reverse the commission’s decision.


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 only if supported by credible evidence. See
James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515,
382 S.E.2d 487, 488 (1989). However, the commission’s application
of statutory and case law is a finding of law not binding on this
Court. See Robinson v. Salvation Army, 20 Va. App.
570, 572, 459 S.E.2d 103, 104 (1995).

The right to compensation under the Workers’
Compensation Act ("the Act") "shall be forever
barred, unless a claim be filed with the Commission within two
years after the accident." Code ? 65.2-601. The issue
in this case is whether the claimant asserted all his injuries
within two years of the October 15, 1997 accident.

The full commission found that under a broad
interpretation of the agreement and in light of the
"interrelatedness" of the neck and shoulder, the
cervical injury was claimed within the two-year period. It
further held that the Supreme Court of Virginia’s decision in Shawley
v. Shea-Ball
, 216 Va. 442, 219 S.E.2d 849 (1975), was
inapplicable to the case at bar because of the interrelatedness
of the body parts, finding Shawley to apply only
"where there is an unconnected and unrelated body part
. . . ."

However, upon our review of the facts and
applicable law, we hold the commission erred in its
interpretation and application of Shawley. The injury
identification of "strain of upper extremity" in the
agreement and the treatment to the arm and shoulder did not
amount to putting the employer on notice as to its potential
liability for the claimed injury to the other body parts. This is
particularly true in this case as there was an explicit medical
finding during the statutory period that no cervical problem
regarding the claimant’s neck existed.

In Shawley, the claimant fell from a
ladder and injured his left foot and ankle. The Memorandum of
Agreement described the nature of the injury as "right hip
and left ankle." After the statute of limitations had run,
the claimant asked the commission to grant as part of his claim
for a left ankle injury an additional claim for alleged back and
right leg injuries. The commission refused the request and found
that "'[n]o written claim for injury to the back or right
leg was filed with the Commission within [the requisite time
period] as required . . . . Moreover and
admittedly, it was only beginning [after the statute had run] that the first reference was made or

appears in reports to any back or right leg
condition.’" Id. at 443-44, 219 S.E.2d at 849.

The Supreme Court affirmed the decision and

Appellant argues here that it
was not necessary for him to specify all injuries
in his original claim, or to assert them within
[the statutory period] . . . . We
disagree. Clearly it is the intent of [the
statute] that . . . an employee must
assert against his employer any claim that he
might have for any injury growing out of an
accident. . . . [I]t is this notice to
the employer and his insurance carrier that gives
them knowledge of the accident and of their
potential liability. Failure to give such notice
within [the statutory time period] from an
accident would seriously handicap the employer
and the carrier 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 prescribed by [the
statute] is a compelling one.

Id. at 446, 219 S.E.2d at 853.

Despite the commission’s ruling in the case at
bar that a claimant is not required to "identify with
precision every body part involved," the Supreme Court made
it clear that notice made with specificity and asserted within
the statute of limitations is required. In the case at bar, the
claimant failed to meet this requirement.

The claimant was required to identify all his
injuries by October 15, 1999. Therefore, the cervical injury
claim, made after the statute of limitations had run, bars the
commission’s consideration of this matter as its jurisdictional
authority terminated at the two-year mark. See Code
? 65.2-601. Further, the commission has no authority to
rewrite the agreement to encompass the injury or to determine if
adjacent body parts not

identified in the agreement are "close
enough" to be covered.#2 See Shawley, 216 Va.
at 446, 219 S.E.2d at 853.

While the claimant is correct in stating the
Act must be liberally construed in harmony with its humane
purposes, "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 International Corp.,
2 Va. App. 749, 754, 347 S.E.2d 548, 551 (1986). To construe the
Act and the agreement to find the cervical injury claim filed
within the statutory period ignores the fundamental notice
requirement of Code ? 65.2-601 as established in Shawley
and Garcia.

In summary, we hold, pursuant to Shawley,
that the claimant failed to file a timely claim for his cervical
injury within the meaning of Code ? 65.2-601. This resulted
in the employer not being timely put on notice of the alleged
cervical injury, as required by Shawley.

To vitiate the notice requirement by permitting
an untimely claim would be fundamentally unfair to the employer.
Therefore, the claim and the commission’s jurisdiction are barred
by the

statute of limitations. Accordingly, the
decision of the commission is reversed.