Gwaltney of Smithfield, etc. v. Andrea T. Tynes ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
GWALTNEY OF SMITHFIELD, LTD. AND
LUMBERMENS MUTUAL CASUALTY COMPANY
MEMORANDUM OPINION * BY
v. Record No. 1632-96-1 JUDGE RICHARD S. BRAY
FEBRUARY 11, 1997
ANDREA THOMASINA TYNES
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Timothy P. Murphy (William W. Nexsen; William
W. Tunner; Stackhouse, Smith & Nexsen, on
brief), for appellants.
Alan P. Owens for appellee.
Andrea Thomasina Tynes (claimant) received an award of
benefits for a neck injury suffered on January 6, 1993. Gwaltney
of Smithfield, Ltd. and Lumbermens Mutual Casualty Company
(collectively, "employer") appeal, contending that the Virginia
Workers' Compensation Commission (commission) erroneously
concluded that the disputed injury was properly reported within
the limitations period prescribed by Code § 65.2-601. We concur
with the commission that the injury was a part of the original
claim and compensable under the attendant award.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal. Under familiar principles, we
construe the evidence in the light most favorable to the party
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
prevailing below, claimant in this instance. See Crisp v.
Brown's Tysons Corner Dodge, Inc., 1 Va. App. 503, 504, 339
S.E.2d 916, 916 (1986). If supported by credible evidence, the
commission's findings of fact are binding and conclusive on
appeal. See James v. Capitol Steel Constr. Co., 8 Va. App. 512,
515, 382 S.E.2d 487, 488 (1989); see Code § 65.2-706.
Code § 65.2-601 provides that "[t]he right to compensation
under this title shall be forever barred, unless a claim be filed
with the Commission within two years after the accident." The
original claim in this instance described an injury to claimant's
right shoulder which occurred on January 6, 1993, without
reference to complaints of the neck or cervical spine. The
instant application for benefits related to claimant's neck was
first filed with the commission on June 5, 1995. Employer,
therefore, contends that Code § 65.2-601 and the related holding
in Shawley v. Shea-Ball Construction Co., 216 Va. 442, 219 S.E.2d
849 (1975), preclude an award for this injury.
In Shawley, the Court applied Code § 65.1-87 (now Code
§ 65.2-601) to conclude that a failure to specify all injuries in
a claim or claims filed within the statutory period is
jurisdictional, preventing the commission from entertaining a
later claim. See 216 Va. at 445-46, 219 S.E.2d at 852-53. The
Court noted that
notwithstanding myriad examinations by
numerous doctors and surgeons, and
innumerable medical reports, neither the
employer nor the carrier had any knowledge
therefrom for over [the statutory period]
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that Shawley's back or right ankle was
involved, or that any claim for such injuries
would ever be made against them. Had such
injuries been caused by the [same accident
which caused the right hip and left ankle
injuries], and had claim been made therefor,
[the employer and carrier] could have made
proper investigation of the claim to
determine its validity and the treatment
necessary to effect a cure of the claimant
and to minimize the employer's liability.
Id. at 446-47, 219 S.E.2d at 853 (emphasis added).
Here, claimant reported neck pain to Dr. Persons, his
treating physician, on June 21, 1993, and Persons notified
employer accordingly in correspondence dated August 12, 1993,
received by employer on August 16, 1993, and filed with the
commission on December 7, 1993, all within the statutory period.
Claimant's physician opined that claimant's continuing pain was
caused, in part, by a cervical disc injury which coincided with
the initially reported shoulder injury. Dr. Magness recommended
corrective cervical surgery "in hopes of improving his shoulder
pain." The commission, therefore, concluded the claimant was
simply "seeking treatment for the exact same injury which [was]
the subject of his compensable claim," a factual finding clearly
supported by credible evidence. The rationale of Shawley is
inapplicable in such circumstances.
Thus, finding no error in the award, we affirm the
commission.
Affirmed.
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