Fairfax Hospital and Inova Health v. Post

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Benton and
Senior Judge Duff
Argued at Alexandria, Virginia
FAIRFAX HOSPITAL AND INOVA HEALTH
SYSTEM FOUNDATION, INC.
MEMORANDUM OPINION * BY
v. Record No. 1012-99-4 JUDGE JAMES W. BENTON, JR.
JANUARY 27, 2000
CANDY K. POST
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Eric J. Berghold (McCandlish & Lillard, P.C.,
on brief), for appellants.
Craig A. Brown (Ashcraft & Gerel, on brief),
for appellee.
Fairfax Hospital appeals from the commission's award of
benefits to Candy K. Post for various periods of temporary total
and temporary partial disability. The Hospital raises sixteen
issues which assert that the commission erred in ruling (1) that
Post's claim is not barred by the statute of limitations, (2) that
the Hospital did not timely file the first report of accident, (3)
that the Hospital paid compensation payments to Post prior to
1994, and (4) that Post's disability and treatment are causally
related to her injury by accident.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I.
The parties stipulated that on June 18, 1993, Post sustained
an injury by accident to her back arising out of and in the course
of her employment. The Hospital also stipulated that Post was
disabled for the various periods she claimed through March 4,
1996; that the Hospital received notice of the accident on the day
of the accident; that the Hospital paid compensation benefits to
Post through September 10, 1994; that the Hospital filed the first
report of accident on June 30, 1994; that the commission mailed
the compensation guide to Post on July 13, 1994; and that Post
filed her claim for benefits in August 1995.
At the evidentiary hearing, Post testified that she received
"compensation checks" from the Hospital when she missed time from
work or suffered income loss after the accident. Post also
testified that she did not file a claim because "[she] was getting
paid . . . [and because she] was seeing [her] physician all the
time and [the Hospital was] paying [her] the whole time [she] was
injured." She testified that whenever she incurred medical
expenses or lost time from work her supervisor told her "to file
the workers' comp," which she understood to mean that she was
required to complete and return the various paperwork to the
insurance company. Post testified that this "was just a
procedure, like when [she] first went into the emergency room, the
paperwork and everything [she] had to do." When Post submitted
the paperwork as instructed, the Hospital paid her medical bills
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and sent her checks to compensate her for lost wages. In August
of 1995, however, the Hospital sent to Post the bill for her
recent medical treatment and informed her that the Hospital would
not pay it because the statute of limitations had expired. She
then filed with the commission a claim for benefits.
The commission ruled that the two year statute of limitations
for filing claims, see Code § 65.2-601, was tolled pursuant to
Code § 65.2-602. The Hospital appeals from the award of benefits
to Post.
II.
In pertinent part Code § 65.2-602 provides as follows:
In any case where an employer has received
notice of an accident resulting in
compensable injury to an employee . . . ,
and whether or not an award has been
entered, such employer nevertheless has paid
compensation or wages to such employee
during incapacity for work . . . or the
employer has failed to file the report of
said accident with the . . . Commission as
required by [Code] § 65.2-900, and such
conduct of the employer has operated to
prejudice the rights of such employee with
respect to the filing of a claim prior to
expiration of a statute of limitations
otherwise applicable, such statute shall be
tolled for the duration of such payment or,
as the case may be, until the employer files
the first report of accident . . . or [the
employee] has received after the accident a
workers' compensation guide . . . .
"Thus, notice, specified conduct and prejudice are the 'three
criteria' that must be established by [an employee] seeking
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relief pursuant to . . . [the] statute." Bristol Newspapers,
Inc. v. Shaffer, 16 Va. App. 703, 706, 432 S.E.2d 23, 25 (1993).
"It is well settled that where the findings of fact of the
Commission are based on credible evidence, they are binding and
conclusive upon this Court." Board of Supervisors v. Taylor, 1
Va. App. 425, 430-31, 339 S.E.2d 565, 568 (1986). Furthermore,
if the record contains evidence or reasonable inferences that
can be drawn from the evidence to support the commission's
findings, we will not disturb those findings even though the
record may contain evidence to support contrary findings. See
id. Noting our holding in Shaffer, the commission found that
the evidence proved "a convergence of notice, specific conduct,
and prejudice" sufficient to toll the statute.
The Hospital first contends that it was not required to
file a report prior to June 1994. The record contains credible
evidence, however, to support the commission's finding that Post
"missed 40 days of work as a result of the . . . accident . . .
and suffered compensable wage loss for a period of eight
consecutive weeks following the injury." Although the Hospital
received notice of the accident on June 18, 1993, the Hospital
did not file the first report of accident until June 30, 1994.
In view of the stipulations of the parties and Post's testimony,
the commission had a sufficient basis to find that the
Hospital's first report of accident was not timely. See Code
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§ 65.2-900; 16 VAC 30-90-30(A) (requiring the first report to be
filed within 10 days of the injury).
The Hospital also contends the evidence failed to prove
that Post suffered prejudice. We disagree. The commission
relied upon Post's testimony that she did not file her claim
earlier because she had completed and sent the paperwork to the
Hospital that her supervisors told her was necessary "to file
the workers' comp." The evidence proved the Hospital paid
either wage loss benefits or wages in lieu of compensation in
1993 and in 1994 for time Post was unable to work. When the
Hospital paid her compensation benefits and medical expenses,
Post could have reasonably concluded that she was receiving
those payments because she sent the Hospital the necessary
"paperwork."
Post testified and the commission found from Post's
testimony that she received ongoing wage loss benefits after the
accident. According to well established principles, "[w]e do
not retry the facts before the Commission nor do we review the
weight, preponderance of the evidence or the credibility of
witnesses." Caskey v. Dan River Mills, Inc., 225 Va. 405, 411,
302 S.E.2d 507, 510 (1983). Indeed, the parties stipulated that
the Hospital paid compensation to Post as late as September 10,
1994. The record, thus, supports the commission's finding that
the circumstances proved that Post was prejudiced and that the
statute was tolled until the Hospital filed its first report of
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accident. Furthermore, as we ruled in Commonwealth Medical
Institute v. Stop-Headstart Program, 18 Va. App. 461, 453 S.E.2d
566 (1994), Post's "receipt of the guide did not retrospectively
eliminate the tolling of the statute of limitations which had
already occurred." Id. at 463, 453 S.E.2d at 566.
III.
On appeal, we must consider the evidence in the light most
favorable to the party prevailing below. See Crisp v. Brown's
Tysons Corner Dodge, 1 Va. App. 503, 339 S.E.2d 916 (1986).
Post testified that her back injury has been symptomatic since
June of 1993. She also testified that "every time I go to the
doctor it's pretty much the same thing and it's a reoccurrence
. . . it was the same injury, it felt the same." Her testimony
is consistent with her medical records, which clearly reveal
that Post continued to complain of low back pain. In addition,
Post's treating physician, Dr. Mark Theiss, reported that Post's
disability through March of 1996 was caused at least in part by
her injury by accident and that her ruptured discs at L4-5 and
L5-S1 were completely caused by the accident. Thus, the
evidence proved a continuing compensable causal relationship
between her disabilities and the accident. "[F]ull benefits
will be allowed when it is shown that 'the employment is a
contributing factor to the disability.'" Smith v. Fieldcrest
Mills, Inc., 224 Va. 24, 28-29, 294 S.E.2d 805, 808 (1982)
(citation omitted).
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Accordingly, we affirm the commission's award.
Affirmed.
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