Safeway Stores, Inc. v. Harold E. McGowan ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Bray
Argued at Chesapeake, Virginia
SAFEWAY STORES, INC.
MEMORANDUM OPINION* BY
v. Record No. 0895-99-2 JUDGE LARRY G. ELDER
FEBRUARY 29, 2000
HAROLD E. McGOWAN
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Charles P. Monroe (Duncan & Hopkins, P.C., on
brief), for appellant.
No brief or argument for appellee.
Safeway Stores, Inc., (employer) appeals from a ruling of
the Workers' Compensation Commission awarding medical benefits
to Harold E. McGowan (claimant) for neck and back injuries
arising from an industrial accident of October 22, 1979. On
appeal, employer contends (1) the commission lacked jurisdiction
to award benefits for neck and back injuries because claimant
failed to file a timely claim for these injuries; (2) because
the commission lacked jurisdiction to award benefits, it
improperly applied the doctrine of res judicata to bar
employer's assertion of the statute of limitations; and (3) even
if the commission had jurisdiction, the record contains no
expert medical opinion to support the commission's finding of
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
causation. We hold that the commission lacked jurisdiction to
award benefits because claimant failed timely to file a claim
for injuries to his neck and back. Therefore, we reverse the
commission's ruling and vacate the award without reaching
employer's third assignment of error.
"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
§ 65.1-87, 1975 Va. Acts ch. 471; see Barksdale v. H.O. Engen,
Inc., 218 Va. 496, 499, 237 S.E.2d 794, 796-97 (1977) (holding
that statute of limitations is part of "substantive right to
recover" under Act and, therefore, applicable statute of
limitations is one in effect when injury occurs). 1 "This is the
notice which activates the right of the employee to compensation
and which invokes the jurisdiction of the [Workers' Compensation
Commission]." Binswanger Glass Co. v. Wallace, 214 Va. 70, 73,
197 S.E.2d 191, 194 (1973) (construing former Code § 65.1-87).
1
Although Code § 65.1-87 was repealed and recodified at
§ 65.2-601, effective October 1, 1991, see 1991 Va. Acts ch.
355, the statute of limitations for filing a claim for
compensation remains two years.
Since 1984, the Act has provided that the statute of
limitations may be tolled under certain circumstances. See Code
§ 65.2-602, 1991 Va. Acts cc. 216, 355; Code § 65.1-87.1, 1984
Va. Acts ch. 608, 1989 Va. Acts c. 539 (recodified at § 65.2-602
by 1991 Va. Acts cc. 216, 355). However, because the statute of
limitations is part of one's "substantive right to recover"
under the Act, see Barksdale, 218 Va. at 499, 237 S.E.2d at
796-97, the tolling provisions are inapplicable to injuries
incurred before the tolling provisions took effect.
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"'The right to compensation under the [workers'] compensation
law is granted by statute, and in giving the right the
legislature has full power to proscribe the time and manner of
its exercise.'" Id. at 73, 197 S.E.2d at 193 (quoting Winston
v. City of Richmond, 196 Va. 403, 407, 83 S.E.2d 728, 731
(1954)).
It 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. 2
Shawley v. Shea-Ball Constr. Co., 216 Va. 442, 446, 219 S.E.2d
849, 853 (1975) (emphases and footnote added) (construing former
Code § 65.1-87). Thus, in Shawley, the Court held that the
commission lacked subject matter jurisdiction to award benefits
for injury to the claimant's right ankle and back, where the
2
This is distinguishable from the case in which an employee
timely files a claim for all injuries incurred in an industrial
accident but subsequently develops additional injuries as a
"natural consequence" of the industrial accident. See Bartholow
Drywall Co. v. Hill, 12 Va. App. 790, 793-94, 407 S.E.2d 1, 3
(1991).
Because claimant contends the back and neck injuries
occurred simultaneously with, rather than subsequent to, the
accepted shoulder and forehead injuries, the doctrine of
compensable consequences is not applicable.
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only injuries for which he filed a timely claim were to his left
ankle and right hip. See id. at 443-44, 219 S.E.2d at 851. The
Court subsequently noted 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).
Here, the only injuries included in the Memorandum of
Agreement executed by the parties in 1979 were to claimant's
shoulder and forehead. Claimant filed no claim for benefits for
back, neck, arm or leg injuries until more than fifteen years
after the compensable accident. Accordingly, the commission
lacked subject matter jurisdiction to award medical benefits for
these injuries.
The commission acknowledged that employer's defense of lack
of subject matter jurisdiction is one that may be asserted "at
any time" but held that the doctrine of res judicata prevented
it from raising the defense of lack of jurisdiction more than
once. Because employer had the opportunity to raise the defense
at the time of the deputy commissioner's 1995 award, when it
contended the treatment to claimant's neck and back was not
causally related, the commission held that employer was barred
from raising the issue of subject matter jurisdiction in this
appeal. For the reasons that follow, we disagree.
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The doctrine of res judicata provides that "[a] valid,
personal judgment on the merits in favor of [a party] bars
relitigation of the [s]ame cause of action, or any part thereof
which could have been litigated, between the same parties and
their privies." Bates v. Devers, 214 Va. 667, 670-71, 202
S.E.2d 917, 920-21 (1974) (footnote omitted). However, "[f]or a
prior judgment to preclude a subsequent action, . . . the court
in the first proceeding must have had jurisdiction over the
subject matter of the controversy and the precise issue upon
which the judgment was rendered." Lloyd v. American Motor Inns,
Inc., 231 Va. 269, 271, 343 S.E.2d 68, 69 (1986) (emphasis
added). If a court lacks jurisdiction to render a judgment, the
judgment has no preclusive effect. See id. Therefore, the
doctrine of res judicata provides no exception to the well
accepted principle of law that lack of subject matter
jurisdiction may be raised in any court at any time and a
judgment rendered by a court lacking subject matter jurisdiction
is void ab initio. See Morrison v. Bestler, 239 Va. 166,
169-70, 387 S.E.2d 753, 755-56 (1990).
For these reasons, we hold that the commission lacked
subject matter jurisdiction to award medical benefits for
injuries to claimant's back and neck allegedly sustained in the
1979 industrial accident. Therefore, we reverse the
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commission's ruling and vacate the award without reaching
employer's final assignment of error.
Reversed and vacated.
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