Mariatou Haidara Diallo v. Marriott Corporation ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
MARIATOU HAIDARA DIALLO
v. Record No. 1734-95-4 MEMORANDUM OPINION *
PER CURIAM
MARRIOTT CORPORATION APRIL 2, 1996
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Mariatou H. Diallo, pro se, on brief).
(John K. Coleman; Susan L. Herilla;
Slenker, Brandt, Jennings & Johnston, on
brief), for appellee.
Mariatou H. Diallo (claimant) contends that the Workers'
Compensation Commission erred in finding that the two-year
statute of limitations contained in Code § 65.2-601 expired
before she filed her September 19, 1994 claim. Specifically, she
argues that the commission erred in finding that Code § 65.1-87.1
(now Code § 65.2-602) did not toll the applicable two-year
1
limitations period. Upon reviewing the record and the briefs of
the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision. Rule
5A:27.
On January 27, 1990, claimant slipped and fell on a wet and
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
Claimant raised twenty-four questions in her opening brief.
Most of these questions were not addressed to the commission.
Accordingly, on appeal, we will not consider any issue not raised
before the commission. Rule 5A:18. We will only consider the
issues raised before the commission.
greasy floor while working for Marriott Corporation (employer) as
a waitress. She felt a sharp pain in her back. On January 31,
1990, she sought medical treatment for low back pain from Dr.
Stephen M. Levin. Dr. Levin advised her not to work until
February 5, 1990. 2 On February 5, 1990, Dr. Levin reported that
claimant's back was significantly improved and he released her to
return to work without restrictions. Claimant saw Dr. Levin
again on February 12, 1990. On February 26, 1990, Dr. Levin
discharged claimant from his care.
Claimant returned to Dr. Levin on April 12, 1990. Her
examination was normal and Dr. Levin advised her to see a
gynecologist. Claimant never returned to Dr. Levin. After April
12, 1990, claimant did not seek medical treatment again until
four and one-half years later. On September 8, 1994, she was
examined by Dr. Ronald G. Donelson, an orthopedic surgeon. 3
Although employer paid Dr. Levin's medical expenses, it did not
pay any compensation or wages to claimant for any period of
disability from January 27, 1990 through September 19, 1994, the
date claimant filed her claim for benefits related to her back
2
Although Dr. Levin advised claimant not to work during this
five-day period, claimant testified that from January 27, 1990
through the summer of 1991, she did not miss any time from work
related to her back condition. Claimant testified that she
stopped working for employer during the summer of 1991 due to
back pain and her return to school.
3
Claimant included medical reports in the Appendix which are
not contained in the record. In rendering our decision, we did
not consider any medical evidence not contained in the record.
2
condition. Employer filed its First Report of Accident on
November 7, 1994.
Code § 65.1-87.1 (now Code § 65.2-602), in effect at the
time of claimant's September 27, 1990 accident, provided, in
part, that the statute of limitations would be tolled if the
employer failed to file a report of accident and paid
compensation or wages during a period of disability related to a
claimant's work accident. 4 Claimant admitted she continued to
work, without restriction, for employer from January 27, 1990
through the summer of 1991. In addition, although employer paid
a portion of claimant's medical expenses, no evidence proved that
employer ever paid compensation or wages to claimant during any
period of work incapacity related to her back condition.
Voluntary payment of medical expenses in itself does not as a
matter of law toll the statute of limitations or estop employer
from raising the jurisdictional defense. Bowden v. Newport News
Shipbuilding & Dry Dock Co., 11 Va. App. 683, 686-87, 401 S.E.2d
884, 886 (1991).
Claimant's evidence failed to prove that employer paid her
compensation or wages during a period of disability related to
her work accident. Therefore, Code § 65.2-87.1 did not toll the
statute of limitations. Accordingly, the commission did not err
4
The commission correctly held that it could not
retroactively apply the July 1, 1991 amendment of Code § 65.1-87
to claimant's accident, which occurred before the amendment,
because the amendment was substantive in nature.
3
in ruling that employer's failure to file the first report of
accident did not toll the statute of limitations.
Because this ruling disposes of this appeal, we need not
address any remaining issues raised by claimant. For the reasons
stated, we affirm the commission's decision.
Affirmed.
4