Cabinetry v. Jewell, Record No. 1628–11–4.

Docket NºRecord No. 1628–11–4.
Citation724 S.E.2d 236, 60 Va.App. 134
Case DateMay 01, 2012
CourtCourt of Appeals of Virginia

60 Va.App. 134
724 S.E.2d 236

FALLS CHURCH CABINETRY and Firstline National Insurance Company
v.
Thomas A. JEWELL.

Record No. 1628–11–4.

Court of Appeals of Virginia, Alexandria.

May 1, 2012.


[724 S.E.2d 238]

Dov M. Szego (William B. Pierce, Jr.; William B. Pierce & Associates, PLLC, Richmond, on brief), for appellants.

No brief or argument for appellee.

Present: HUMPHREYS, KELSEY and ALSTON, JJ.

ALSTON, Judge.

[60 Va.App. 137] Falls Church Cabinetry and its insurer, Firstline National Insurance Company, (collectively, “employer”) appeal an award of benefits to Thomas A. Jewell (“claimant”) by the Virginia Workers' Compensation Commission (“the commission”). On appeal, employer asserts three assignments of error. First, employer challenges the sufficiency of the evidence to support the commission's decision. Second, employer alleges the commission erred in finding that claimant's claim for benefits was not barred by the statute of limitations. Third, employer argues that the commission erred in finding that claimant was prejudiced by employer's late-filed accident report. Finding no error, we affirm.

I. BACKGROUND

“By well established principles, we view the evidence in the record in the light most favorable to the party prevailing before the commission,” in this case, claimant. Boys and Girls Club of Virginia v. Marshall, 37 Va.App. 83, 85, 554 S.E.2d 104, 105 (2001).

So viewed, the evidence indicated that claimant injured his wrist in a work accident on January 19, 2007.1 Claimant filed [60 Va.App. 138] a claim for compensation with employer's insurer at the time, Travelers Insurance. Travelers Insurance voluntarily paid claimant's medical bills. On March 2, 2007, the commission sent claimant a letter regarding his wrist injury stating in part, “Your accident on JAN–19–2007 has been reported to us. Please read the important information printed on the back of this form and in the enclosed pamphlet. Note that any additional information requested below will be provided to your carrier/employer.” The letter listed the employer as “Premier Development LLC” and the carrier as “Travelers Indemn [sic] Co.” Neither the back of the form nor the pamphlet referenced in the letter was included in the record upon review.

On May 22, 2007, claimant injured his left thumb while at work.2 Claimant subsequently received treatment for his thumb injury in an emergency room. Claimant gave employer timely notice of his injury.

On May 19, 2008, the commission sent claimant a second letter regarding his January 19, 2007 wrist injury. The letter specifically listed the date of accident as January 19, 2007, and referenced a VWC file number associated with the January 19, 2007 injury. The letter stated:

This letter is a reminder regarding your rights under the Virginia Workers' Compensation Act. Your file indicates that you have made no written claim for medical or wage loss benefits for the Incident listed above, and that no Agreement to Pay Benefits (VWC Form no. 4) has been filed. The Act requires that all claims for benefits be filed with the Commission within (2) years of the date of the accident.

[724 S.E.2d 239]

An Agreement to Pay Benefits (VWC Form no. 4) confirms your entitlement to compensation benefits and forms the basis for a Commission Award. The Award protects your current and future rights to receive medical and wage loss [60 Va.App. 139] benefits under the Virginia Workers' Compensation Act. The fact that you may have been paid benefits without an award does not protect your legal rights.

If you wish to receive an Information Guide to Workers' Compensation Benefits in Virginia and a Claim for Benefits form, you may call toll free (877) 664–2566.

On August 19, 2009, claimant filed an application for hearing with the commission regarding his May 2007 thumb injury. Subsequently, on October 9, 2009, employer filed an accident report regarding the May 2007 thumb injury.

In a hearing before the deputy commissioner, claimant testified that he did not recall receiving any paperwork relating to his January 2007 wrist injury, although he acknowledged that he lived at the address to which the two letters from the commission were sent during the relevant time periods. Specifically, claimant did not deny receiving the letters and stated that it was possible he received them but did not recall.

According to claimant, after his May 2007 thumb injury, claimant contacted Travelers Insurance and was told that he had to “get done with [his wrist injury] first.” Claimant testified that he continued to fax and call Travelers Insurance about his thumb injury and received no response. Claimant also contacted employer to ask for assistance in receiving compensation from Travelers Insurance, but a secretary employed by employer told claimant she could not “get anywhere” with Travelers Insurance. There was no evidence to suggest that claimant was aware that at the time of his May 2007 injury, Travelers Insurance no longer insured employer.

Claimant also testified that he did not file a claim for benefits for his May 2007 thumb injury until August 2009 because he did not begin receiving letters from bill collectors for that injury until approximately that time frame. Claimant initially believed that, in order to receive compensation, he would have to hire an attorney and sue employer. Claimant testified that upon receipt of letters from bill collectors, he [60 Va.App. 140] called his brother, an attorney, who advised him to call the commission.

The deputy commissioner held that, although claimant's claim was filed more than two years after the date of injury, the statute of limitations was tolled under Code § 65.2–602. The deputy commissioner found that claimant's receipt of the two letters regarding his January 2007 wrist injury did not preclude a finding that claimant was prejudiced by employer's failure to timely file an accident report. The deputy commissioner also found that claimant was unaware of the two-year statute of limitations and filed his claim in August 2009 because he received outstanding bill notices and notices of legal action related to non-payment of bills.

Employer appealed to the commission. Upon review, the commission affirmed the deputy commissioner's opinion. The commission found that employer failed to file an employer's accident report pursuant to Code § 65.2–900 and claimant was unaware of the statute of limitations. The commission further found that claimant “did not receive a guide from the commission until after he filed a claim.” Relying upon Jones v. Gwaltney of Smithfield, Ltd., 53 Va.App. 760, 763, 675 S.E.2d 220, 221–22 (2009), the commission noted that “a previous work accident and claim does not preclude a finding of prejudice in the claim before the Commission.” The commission found that claimant was “not aware of the Commission's existence” until he spoke with his brother. As a result, the commission held that Code § 65.2–602 tolled the statute of limitations.

This appeal followed.

II. ANALYSIS

Because all three of employer's assignments of error allege that the commission erred in its determination that the tolling provision of Code § 65.2–602 applies in the instant case, we address all three arguments together.

[724 S.E.2d 240]

[60 Va.App. 141] “Under the statutory scheme, a claimant's notification to an employer of an accident, Code § 65.2–600, triggers the filing of the Employer's [accident report] under Code § 65.2–900.” Hall v. Winn–Dixie Stores, Inc., 41 Va.App. 835, 838, 589 S.E.2d 484, 486 (2003). This in turn causes the commission to mail a notification letter, or blue letter,3 and compensation guide to the employee as required by Code § 65.2–201(D). See id. at 839, 589 S.E.2d at 486. While Code § 65.2–601 requires that a claimant file a claim for benefits within two years from the date of his or her injury, the tolling statute, Code § 65.2–602, provides, in pertinent part:

In any case where an employer has received notice of an accident resulting in compensable injury to an employee as required by [Code] § 65.2–600, and ... the employer has failed to file the report of said accident with the Virginia Workers' Compensation 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 ... until the employer files the first report of accident required by [Code] § 65.2–900. For purposes of this section, such rights of an employee shall be deemed not prejudiced if his employer has filed the first report of accident as required by [Code] § 65.2–900 or he has received after the accident a workers' compensation guide described in [Code] § 65.2–201 or a notice in substantially the following form:

NOTICE TO EMPLOYEE.

BECAUSE OF THE ACCIDENT OR INJURY YOU HAVE REPORTED, YOU MAY HAVE A WORKERS' COMPENSATION CLAIM. HOWEVER, SUCH CLAIM MAY BE LOST IF YOU DO NOT FILE IT WITH THE VIRGINIA WORKERS' COMPENSATION COMMISSION[60 Va.App. 142] WITHIN THE TIME LIMIT PROVIDED BY LAW. YOU MAY FIND OUT WHAT TIME LIMIT APPLIES TO YOUR INJURY BY CONTACTING THE COMMISSION. THE FACT THAT YOUR EMPLOYER MAY BE COVERING YOUR MEDICAL EXPENSES OR CONTINUING TO PAY YOUR SALARY OR WAGES DOES NOT STOP THE TIME FROM RUNNING....

Under Code § 65.2–602, to toll the statute of limitations, a claimant must prove:

(1) the employer received a notice of the accident as required by Code § 65.2–600; (2) the employer failed to timely file the report of an accident as required by Code § 65.2–900; and (3) the employer's failure to timely file the report of an accident prejudiced claimant's rights with “respect to [the] filing [of] a claim prior to ... expiration of [a] statute of limitations.”

Hall, 41 Va.App. at 839, 589 S.E.2d at 486 (quoting Code § 65.2–602). “Without proof of prejudice, the commission cannot toll the two-year statute...

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2 practice notes
  • Knight v. Commonwealth, Record No. 0066–12–3.
    • United States
    • Virginia Court of Appeals of Virginia
    • December 18, 2012
    ...constitutional requirements,’ any application of the exclusionary rule to deter police misconduct ‘does not pay its way.’ ” Id. at 133, 724 S.E.2d at 236 (exclusionary rule did not require suppression of a .22 caliber bullet found in defendant's pants pocket during a search incident to arre......
  • Bellamy v. Commonwealth, Record No. 0199–11–1.
    • United States
    • Virginia Court of Appeals of Virginia
    • May 1, 2012
    ...in relying on the dispatcher's report that there was an outstanding warrant for appellant.5 Once Officer Hall received information [724 S.E.2d 236] from the dispatcher that there was an outstanding warrant for appellant's arrest, he was objectively reasonable in arresting and searching appe......
2 cases
  • Knight v. Commonwealth, Record No. 0066–12–3.
    • United States
    • Virginia Court of Appeals of Virginia
    • December 18, 2012
    ...constitutional requirements,’ any application of the exclusionary rule to deter police misconduct ‘does not pay its way.’ ” Id. at 133, 724 S.E.2d at 236 (exclusionary rule did not require suppression of a .22 caliber bullet found in defendant's pants pocket during a search incident to arre......
  • Bellamy v. Commonwealth, Record No. 0199–11–1.
    • United States
    • Virginia Court of Appeals of Virginia
    • May 1, 2012
    ...in relying on the dispatcher's report that there was an outstanding warrant for appellant.5 Once Officer Hall received information [724 S.E.2d 236] from the dispatcher that there was an outstanding warrant for appellant's arrest, he was objectively reasonable in arresting and searching appe......

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