STATUTE OF LIMITATIONS

STATUTE OF LIMITATIONS

Knott v. Virginia Beach Mariners, Inc., Record No. 0634-09-1 (Va. App. 12/8/2009) (Va. App., 2009)

Claimant sustained a compensable injury by accident to his lower back and was awarded lifetime medical benefits. After the statute of limitations had run for filing additional claims, Claimant filed an application for benefits for an injury to his neck and right shoulder. The Deputy Commissioner and the full Commission found for the Employer and held that the only body part covered by the original award was an injury to Claimant’s back and, as Claimant failed to preserve a claim for injuries to his neck and right shoulder during the two year statute of limitations, his claim was time-barred.

The Court of Appeals reversed the Commission’s decision, holding that “the nature of the injury is muscular rather than a surgical disc problem [and] whereas discs and bone may be separate, muscles are not.” In so holding, the Court of Appeals rejected application of the long-standing case of Shawley v. Shea-Ball Construction Company, 216 Va. 422, 219 S.E.2d 849 (1975), in which the Claimant sustained an injury to his left ankle and right hip but filed a later claim for injuries to his back and right ankle. The later claim was found to be time-barred.

Instead of applying Shawley, the Court of Appeals applied their decision in Corporate Resource Management v. Southers, 51 Va. App. 118, 655 S.E.2d 34 (2008) (en banc), in which the Court allowed a later claim to Claimant’s neck when the original injury was to the left shoulder, because the Claimant had consistently complained of neck pain and had received treatment, therefore the employer was on notice of the injury. The Court of Appeals was only able to arrive at the holding in Southers by factually distinguishing it from Shawley.

Sears Roebuck & Co., v. Cruse, Record No. 0872-09-2 (Va. App. 2/9/2010) (Va. App., 2010)

The Court of Appeals reversed the Commission’s finding that the Claimant failed to file his claim for benefits within the two year statute of limitations. Claimant was injured in the course of his employment on August 10, 2005. At the hearing for the claim for benefits, no representative for Sears was in attendance. Claimant testified that after the accident, his manager told him to go to the doctor, and “Sears will take care of it.” The doctor prescribed physical therapy, which was refused by the carrier. Claimant’s manager told him to go to the physical therapy and “we’ll pay for it,” however, Sears never paid any of Claimant’s medical bills. Sears gave Claimant light duty work and paid him regular wages after the accident, and shortly thereafter fired him.

The commission found the Claimant’s injury compensable and awarded medical expenses. In the deputy commissioner’s opinion, there was no mention of the statute of limitations. Neither party asked for review of this opinion by the full commission. On August 8, 2008, Sears filed a motion to vacate on the grounds that claimant did not file his claim for benefits within the statute of limitations and therefore, the commission did not have jurisdiction to enter an award. The commission denied Sears an evidentiary hearing and its motion to vacate, finding the award had become final and that the statute of limitations was not a subject matter jurisdiction issue.

Sears contends that the commission should have set its motion to vacate claimant’s award for an evidentiary hearing and should have granted its motion to vacate because the claimant did not file his claim for benefits within the statute of limitations pursuant to § 65.2-601 and the award is thus void. Claimant did not respond to Sears’ argument.

The Court of Appeals noted that § 65.2-602 provides for tolling of the two year statute of limitations period in certain instances, such as if the employer receives an initial notice of the accident and either “paid compensation or wages to such employee during incapacity for work” or “failed to file the report of said accident” in compliance with § 65.2-900. The Court of Appeals stated that Sears was asking that the case be remanded so that the commission could hold an evidentiary hearing on whether the statute of limitations should have precluded an award to the claimant, and found this request appropriate.

The Court of Appeals paralleled the present case to that of Winston v. City of Richmond, 196 Va. 403, 83 S.E.2d 728 (1954). In Winston, the employer never raised the statute of limitations before the commission and therefore no determination of estoppel or tolling had been made. The Virginia Supreme Court noted however, that there was some indication in the record that a tolling provision might apply to allow the claim to proceed. Since the commission in the present case did not address the issue of the statute of limitations, probably due to the absence of a Sears representative and the claimant did not raise any issues of tolling, the Court of Appeals stated that there was some evidence in the record that suggests the statute of limitations might be tolled and thus, the case was remanded to the commission on that issue.

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