Corporate Resource Management, Inc. v. Southers

D. ARTHUR KELSEY, Judge.

Corporate Resource Management, Inc. (CRM) appeals an award of the Workers’ Compensation Commission to Lourenda Southers for an injury to the C5-6 facet joint of her cervical spine. Relying on Code § 65.2-601’s two-year statute of limitations, CRM claims the commission had no jurisdiction to award compensation for a neck injury because the only timely claim asserted by Southers identified her injury as a “contusion to the left shoulder.” We agree and reverse the commission’s award.

I.

In 2003, Southers fell down some steps and landed on her left shoulder. Represented by counsel, Southers claimed her accident caused bruising to her left shoulder. CRM accepted the claim without contest after Southers executed a memorandum of agreement specifying the “nature of injury” and “parts of body affected” as a “contusion to the left shoulder.”

More than two years after the accident, Southers sought compensation for an injury to the C5-6 facet joint of her cervical spine. CRM denied the claim on several grounds, including the two-year statutory time bar codified in Code § 65.2-601. Though acknowledging Southers never filed a timely claim “alleging any neck injury,” the commission rejected CRM’s assertion of the time bar. By a majority vote, the commission stated that the statutory time bar applied only to “an untimely filing of a claim for a body part unrelated to that reflected in the initial claim for benefits.” (Emphasis added.) The commission then reasoned that the time bar did not apply to Southers’s case because her accident did not involve “injuries to two separate body parts.” A dissenting commissioner disagreed, finding the majority’s reasoning inconsistent with Shawley v. Shea-Ball Constr. Co., 216 Va. 442, 219 S.E.2d 849 (1975), the leading case interpreting the statutory time bar.¹

Both the majority and the dissenting commissioners, however, agreed on the facts. The evidence before the commission included Southers’s testimony conceding that she had never filed “any claims for a neck injury” and that neither CRM nor its insurance carrier attempted to dissuade her from doing so. Seeking to explain her reason for not filing a timely neck-injury claim, Southers testified (despite medical records suggesting otherwise) that she did not “suffer from neck pain” prior to the expiration of the two-year limitations period and never complained of neck pain to any treating physician during that period.

II.

An injured employee must file a claim with the commission within two years of the accident. If the claimant fails to meet this filing deadline, the right to compensation “shall be forever barred.” Code § 65.2-601. Unlike an ordinary statute of limitations, this statutory bar acts as a “jurisdictional” limitation on the commission’s remedial powers. Shawley, 216 Va. at 445, 219 S.E.2d at 852; see also Stuart Circle Hasp. v. Alderson, 223 Va. 205, 208-09, 288 S.E.2d 445, 447 (1982); Barksdale v. H.O. Engen, Inc., 218 Va. 496, 497, 237 S.E.2d 794, 795 (1977). In the absence of a genuine dispute of material fact, the question whether “a claim is barred by the statute of limitations is a question of law.” Tuck v. Goodyear Tire & Rubber Co., 47 Va.App. 276, 284, 623 S.E.2d 433, 437 (2005).

Our analysis begins with Shawley, the governing precedent on the jurisdictional nature of the statutory bar.² In that case, an employee fell from a ladder and filed a timely claim for injuries to his “right hip and left ankle.” Shawley, 216 Va. at 443, 219 S.E.2d at 850 (describing claim in a memorandum of agreement). After the expiration of the filing deadline, the employee filed an “additional claim for alleged back and right leg injuries.” Id. at 443, 219 S.E.2d at 851. The employer refused to pay, arguing the new claim had not been timely filed. The commission agreed, holding the employee failed to file a “claim for injury to the back or right leg” within the (then one-year) statutory limitations period. Id.

On appeal, the employee in Shawley argued it was “not necessary to specify all injuries in his original claim” filed with the commission. Id. at 446, 219 S.E.2d at 853. The Virginia Supreme Court flatly disagreed, holding “an employee must assert against his employer any claim that he might have for any injury growing out of the accident.” Id. (emphasis added). Stressing the “jurisdictional” nature of the filing deadline, Shawley held that the employee’s claim for injuries to his back and right leg was “forever barred,” id. at 445-46, 219 S.E.2d at 852, because these injuries were not identified in the original, timely-filed, claim—which listed only injuries to his “right hip and left ankle,” id. at 443, 219 S.E.2d at 850.

Our most recent application of the statutory time bar, Tuck, 47 Va.App. at 283-84, 623 S.E.2d at 436-37, involved an untimely claim for a “neck” injury when the timely claim, memorialized in a memorandum of agreement, identified injuries only to the “lower back and right shoulder.” The commission had disallowed the untimely neck-injury claim, holding that the “requirement that a claim be timely filed under Code § 65.2-601 is jurisdictional” and no statutory or equitable exception suspended its operation in this particular case. Tuck v. Goodyear Tire & Rubber Co., VWC File No. 204-66-57, 2005 Va. Wrk. Comp. Lexis 274, at *10 (Apr. 8, 2005). A dissenting commissioner disagreed, arguing that the employer knew of the neck injury and should not be relieved of the obligation to compensate for that injury simply because the memorandum of agreement “did not list ‘neck’” among the injured body parts. Id. at *21. We affirmed the majority’s view, holding that the neck claim was “barred by the two-year statute of limitations pursuant to Code § 65.2-601” and that none of the proffered exceptions to the statutory bar applied. Tuck, 47 Va.App. at 286, 623 S.E.2d at 438.³

Here, Southers made a timely claim for a “contusion to the left shoulder” and an untimely claim for an injury to the C5-6 facet joint of her cervical spine. Departing from its reasoning in Tuck,⁴ the commission interpreted the Shawley time bar to apply only to “a body part unrelated to that reflected in the initial claim for benefits” and concluded Shawley did not apply to this case because it did not involve “injuries to two separate body parts.”

To begin with, we question whether the commission meant its reasoning to be taken literally. That is, we think it unlikely the commission was truly unwilling to recognize the left shoulder and the C5-6 facet joint as “two separate body parts.” Obviously they are, from the perspective of both physicians and laymen. Nor can we accept that a left shoulder bruise is anatomically the same as a cervical spine injury. What we understand the commission to be saying is that, while not the same, they are close enough to pass the Shawley specificity standard.

We cannot concur with the commission’s reasoning. The timely claim in Shawley included an allegation of injury to the “right hip,” whereas the untimely claim included the “back” and “right leg” among the injured body parts. Shawley, 216 Va. at 443-44, 219 S.E.2d at 851. We discern no principled basis, in law or in fact, for the commission to assert that the right hip is unrelated to either the back or the right leg (thus not close enough to excuse the time bar in Shawley), but the left shoulder is related to the neck (thus close enough to excuse the time bar in Southers’s case). This ad hoc distinction is no distinction at all, much less one to which our judicial imprimatur can be given.

In reply, Southers says this discursive legal debate over claim-filing principles should be subordinated to a more important factual point: Unlike the employer in Shawley, Southers’s employer had “notice of a possible neck injury” because medical records mention she complained of neck pain prior to the expiration of the statutory deadline. See Appellee’s Brief at 16. That is dispositive, she continues, because Shawley declared notice to be the “compelling” public policy rationale underlying the statutory filing requirement. Shawley, 216 Va. at 446, 219 S.E.2d at 853. From these two observations, Southers concludes that the statutory filing requirement does not apply to any case (including hers) where the employer had notice of the unfiled, untimely claim.

We believe this misreading of Shawley leads to a non sequitur—one which, if accepted, would distort long-accepted principles governing statutes of limitation. The observation in Shawley about the employer’s lack of notice was meant to illustrate the animating public policy behind the statute, not to atomize it into a case-by-case adjudication of notice. No published opinion of a Virginia court has ever interpreted Shawley to empower the commission to decide, by looking at the facts of each disputed claim, whether the statutory bar really advances its underlying notice policies and, if not, selectively suspend its application. “In the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.” Hallstrom v. Tillamook County, 493 U.S. 20, 31, 110 S.Ct. 304, 311, 107 L.Ed.2d 237 (1989) (citation omitted). No matter its view of the wisdom of applying filing deadlines to a given case, neither a court nor a commission can “disregard these requirements at its discretion.” Id.

To accept Southers’s argument would be to employ the long-discredited “inherent equity” doctrine to judicially fashion an exception where the governing statute of limitations “creates none.” Bickle v. Chrisman’s Adm’x, 76 Va. (1 Hansbrough) 678, 685 (1882) (citation omitted). As a general rule, “courts have no authority to make any exception in favor of a party to protect him from the consequences” of a statute of limitations, Ackiss’ Ex’rs v. Satchel, 104 Va. 700, 704, 52 S.E. 378, 379 (1905), and, in any event, “no reasons based on apparent inconvenience or hardship can justify a departure from it,” Amy v. Watertown, 130 U.S. 320, 324, 9 S.Ct. 537, 538, 32 L.Ed. 953 (1889). To the extent specific exceptions exist, they are applied “with great caution; otherwise the courts would make the law instead of administer it.” Ackiss’ Ex’rs, 104 Va. at 705, 52 S.E. at 379 (quoting Amy, 130 U.S. at 324, 9 S.Ct. at 538).

With respect to Code § 65.2-601, we have recognized narrow exceptions to the two-year claim-filing requirement. See Tuck, 47 Va.App. at 284, 623 S.E.2d at 437. But we have never dispensed altogether with Code § 65.2-601’s limitation period on any actual notice theory of de facto compliance. Indeed, in Cibula v. Allied Fibers & Plastics, 14 Va.App. 319, 324, 416 S.E.2d 708, 711 (1992), aff'd, 245 Va. 337, 428 S.E.2d 905 (1993) (per curiam), we recognized that an employer’s “voluntary payment” of an injured employee’s medical bills does not, by itself, estop the employer from invoking the two-year limitation bar of Code § 65.2-601. See also Stuart Circle Hosp., 223 Va. at 209, 288 S.E.2d at 447. All the more, an employer’s actual notice of an injury would never suffice, by itself, as an exception to Code § 65.2-601’s jurisdictional requirement that a timely claim be filed.

Despite the inconsistency inherent in her argument, Southers also claims neither she nor her attorney could have reasonably known to file a claim for a neck injury because no doctor diagnosed the C5-6 facet joint injury until after the expiration of the limitation period. The commission thought this point persuasive, dwelling at some length on the facts supporting it and concluding it helped to understand how the underlying injury (consistently referred to in the singular) remained the same from the date of the accident forward. We have two responses.

First, for purposes of Code § 65.2-601’s two-year limitation, a claim accrues on the date of the accident not the date the injuries are medically diagnosed. Unless a statute of limitations expressly says so, the limitation period does not depend on the claimant’s “discovery of injury or damage” even in situations where “the injury or damage is unknown or difficult or even incapable of discovery.” Shipman v. Kruck, 267 Va. 495, 503, 593 S.E.2d 319, 323 (2004) (citations and ellipses omitted). This principle accepts, albeit reluctantly, that “statutes of limitations may impose hardships upon individual litigants who discover salient facts after the statutory deadline. Such hardships are inherent in their nature.” Hamilton v. 1st Source Bank, 928 F.2d 86, 90 (4th Cir.1990) (en banc).

Second, even if Southers’s medical diagnosis changed over time, what matters is not how the injuries could have been described in a timely claim but how they were, if at all, in fact described. In her memorandum of agreement, Southers specified the “nature of injury” and “parts of body affected” as a “contusion to the left shoulder.” That description of a bruised left shoulder defined the boundaries of CRM’s liability, as well as the limits of the commission’s remedial jurisdiction. In short, by moving the liability markers out to include an injury to Southers’s cervical spine—after the expiration of the two-year time bar—the commission exercised a jurisdictional power denied it by Code § 65.2-601.

III.

The employee in Shawley argued it is “not necessary to specify all injuries” in a timely filed claim. Shawley, 216 Va. at 446, 219 S.E.2d at 853. “We disagree,” the Virginia Supreme Court replied, holding that “an employee must assert against his employer any claim that he might have for any injury growing out of the accident.” Id. (emphasis added). Shawley governs this case. As Southers concedes, she never filed a timely claim specifying an injury to her neck. The commission, therefore, had no jurisdiction to make an award for this injury.

Reversed.

1 . The dissenting commissioner also cited Fleetwood Homes of Va., Inc. v. McNeal, No. 2236-00-3, 2001 WL 618190, at *4, 2001 Va.App. Lexis 311, at *10-11 (June 5, 2001) ("Clearly, Shawley does not create an exception for adjacent body parts to the requirement that all claims growing out of an accident must be timely asserted.”), and McKee Foods Corp. v. Atkins, No. 2727-00-3, 2001 WL 747688, at *3, 2001 Va.App. Lexis 399, at *8 (July 3, 2001) (“Further, the commission has no authority to rewrite the agreement to encompass the injury or to determine if adjacent body parts not identified in the agreement are 'close enough’ to be covered.” (footnote omitted)).

2 . Over many decades, Virginia courts have characterized the statutory time limitation as jurisdictional. See, e.g., Binswanger Glass Co. v. Wallace, 214 Va. 70, 73, 197 S.E.2d 191, 193 (1973); Blue Diamond Coal Co. v. Pannell, 203 Va. 49, 50, 122 S.E.2d 666, 667 (1961); Winston v. City of Richmond, 196 Va. 403, 410, 83 S.E.2d 728, 732 (1954); Massey Builders Supply Corp. v. Colgan, 36 Va.App. 496, 502, 553 S.E.2d 146, 149 (2001); Metro Mach. Corp. v. Sowers, 33 Va.App. 197, 204, 532 S.E.2d 341, 345 (2000); Lynchburg Foundry Co. v. McDaniel, 22 Va.App. 307, 310, 469 S.E.2d 85, 87 (1996); Mayberry v. Alcoa Bldg. Prods., 18 Va.App. 18, 20, 441 S.E.2d 349, 350 (1994).

3 . Virginia law recognizes "only three exceptions” to the jurisdictional time-bar: (i) the statutory exception codified by Code § 65.2-602, (ii) the equitable exception for prejudicial misrepresentations and concealments by an employer, and (iii) the sui generis exception recognized by the doctrine of imposition. Tuck, 47 Va.App. at 284, 623 S.E.2d at 437. Southers does not invoke, nor did the commission apply, any of these exceptions in this case. We likewise need not address them.

4 . The dissenting commissioner in Southers’s case also noted that the majority failed to address Gross v. Wyeth-Ayerst Labs., VWC File No. 182-73-27, 2000 Va. Wrk. Comp. Lexis 503, at *8-10 (Apr. 11, 2000), aff'd per curiam, No. 1081-00-2, 2000 WL 1486576 (Va.Ct.App. Oct. 10, 2000) (unpublished), which held that a timely claim for injuries to the "left arm, hand, elbow and shoulder" could not rehabilitate an untimely claim for a neck injury. See also Hardee’s of Clintwood v. Robinson, No. 1753-02-3, 2003 WL 282323, at *2, 2003 Va.App. Lexis 70, at *6-7 (Feb. 11, 2003) (The commission erred in holding that "to require the worker to distinguish between those body parts was 'too restrictive’ an interpretation of the Act” because it "relieved the claimant from the necessity of specifying all injuries in the original claim or within two years. That was the argument rejected in Shawley.”).