Life Insurance Company of Georgia v. Gale McCracken ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Clements and Senior Judge Coleman
Argued at Richmond, Virginia
LIFE INSURANCE COMPANY OF GEORGIA
MEMORANDUM OPINION* BY
v. Record No. 1495-00-2 JUDGE ROBERT J. HUMPHREYS
FEBRUARY 13, 2001
GALE P. McCRACKEN
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Dawn E. Boyce (Trichilo, Bancroft, McGavin,
Horvath & Judkins, P.C., on brief), for
appellant.
(Gale P. McCracken, pro se, on brief).
Appellee submitting on brief.
Appellant, Life Insurance Company of Georgia, appeals a
finding of the Workers' Compensation Commission awarding
benefits to Gale P. McCracken. Appellant contends that the
commission erred in finding that McCracken filed her claim for
benefits within the statutory limitations period.
I. Background
McCracken was injured at work on May 7, 1996 as a result of
a slip and fall. The Employer's First Report of Accident, which
described the injury as "lumbar and cervical strains," was
prepared and signed by James P. Kirtland, the appellant's risk
manager, on May 27, 1996, and filed with the commission on
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
June 3, 1996. McCracken filed a Claim for Benefits on June 24,
1996, which described the nature of injury as "acute lumbar &
cervical sprain." Appellant accepted McCracken's claim as
compensable on July 1, 1996. A Memorandum of Agreement was
prepared by Kirtland on July 2, 1996. McCracken signed the
Memorandum of Agreement, and it was filed with the commission on
July 25, 1996. The Memorandum listed the nature of the back
injury as "back strain," and required appellant to pay McCracken
temporary total disability benefits, as well as medical benefits
for as long as necessary. An award order approving the
Memorandum of Agreement was entered on August 6, 1996.
During the following year, appellant paid benefits to
McCracken as she continued to seek treatment for her injury.
Appellant also paid benefits involving various examinations of
McCracken's reported neck pain. However, on October 30, 1997,
the commission received a letter from McCracken alleging that
appellant had continued to fail to pay certain sums pursuant to
the Memorandum of Agreement. The commission treated McCracken's
letter as an application for hearing and placed the case back on
its docket. The commission received another letter from
McCracken on February 19, 1999, alleging that appellant had
still failed to pay certain sums as required. The commission
then set the matter for hearing.
On April 27, 1999, McCracken filed another letter with the
commission, clarifying the benefits for which she sought relief.
- 2 -
It was in the April 27, 1999 letter that McCracken first
complained of appellant's failure to approve benefits for her
neck condition. Specifically, for her anticipated cervical
surgery. 1
After a hearing on the issue, a deputy commissioner found
that McCracken "abandoned her original claim for cervical
injuries by executing the Memorandum of Agreement" in 1996.
Accordingly, since McCracken had failed to resubmit any claim
for cervical injury within two years of the date of injury, she
was barred from now pursuing the claim under Code § 65.2-601. 2
The full commission reversed the deputy's decision and
awarded McCracken benefits. It found that the parties' failure
to include the cervical strain in the Memorandum of Agreement
was unintentional and that the term "back strain" was
sufficiently broad to include her injuries to both her neck and
back. As a result, the commission modified the award to
specifically include McCracken's neck injury.
1
McCracken also raised issues pertaining to anticipated
nerve conduction testing, liver testing and physician management
of pain medication. However, these issues are not before us on
this appeal.
2
The deputy commissioner also ruled that McCracken's neck
injury was not a "compensable consequence . . . or a change in
condition from, the earlier back strain." The full commission
did not address these findings in its decision, and neither
issue has been raised on appeal.
- 3 -
I. Analysis
This Court is bound by the findings of fact of the
commission, but only where there is a conflict of evidence as to
the facts. Where the evidence is not in conflict, the question
is one of law as to whether or not it is sufficient to support
the commission's ruling. See Morris v. Pulaski Veneer Corp.,
183 Va. 748, 754-55, 33 S.E.2d 190, 192-93 (1945) (if in fact
there be no evidence upon which an award can be legally based,
then clearly an award which is unsupported by evidence is an
illegal award).
The only issues raised by the parties on appeal are the
statute of limitations question and the commission's
interpretation of the term "back sprain." The parties raised no
argument concerning the commission's ability to modify its own
awards, nor its ability to interpret terms contained in
Memoranda of Agreements after they have been accepted by the
commission as binding on the parties. 3
Code § 65.2-601 provides that "[t]he 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." Unlike the claimants in the cases relied
upon by the appellant, here, it is clear that McCracken filed
3
Although not an issue on appeal, we note that the
commission interpreted the terms of the Agreement and
consequently modified its award, without any citation to legal
authority or reasoning supporting its ability to do so.
- 4 -
her claim for her back injury, as well as her neck injury,
within the statutory time period. See Shawley v. Shea-Ball, 216
Va. 442, 219 S.E.2d 849 (1975); Williams v. Capital
Distributors, 74 V.W.C. 79 (1995).
Subsequently, pursuant to Code § 65.2-701, McCracken
voluntarily entered into a settlement of her claims with
appellant, and the settlement was approved by the commission by
way of its 1996 award. Prior to the entry of the award,
McCracken's claims consistently included both her back and neck
injuries, as reflected in the use of the terms "lumbar and
cervical" strains/sprains in the First Report of Accident and
the Claim for Benefits. Other than using only the term "back
strain" in the Memorandum of Agreement, there is no evidence in
the record that suggests appellant intended to exclude the
cervical strain as a compensable injury when it prepared the
Memorandum of Agreement.
Accordingly, on the facts of this case, we cannot hold that
the finding of the commission interpreting the term "back
sprain" to encompass McCracken's neck injury, is unsupported by
the evidence. See Russell Loungewear v. Gray, 2 Va. App. 90,
92, 341 S.E.2d 824, 825 (1986) (the commission's findings of
fact are conclusive and binding on this Court if supported by
credible evidence).
Affirmed.
- 5 -