Hall v. Winn-Dixie Stores, Inc.

• Decision Date: 16 December 2003
• Docket Number: Record No. 0630-03-1.
• Court: Virginia Court of Appeals
• Parties: Linda M. HALL, v. WINN-DIXIE STORES, INC.

589 S.E.2d 484

41 Va. App. 835

Linda M. HALL, v. WINN-DIXIE STORES, INC.

Record No. 0630-03-1.

Court of Appeals of Virginia.

December 16, 2003.

(Matthew H. Kraft; Rutter, Walsh, Mills & Rutter, on brief), for appellant. Appellant submitting on brief.

S. Vernon Priddy, III (Sands Anderson Marks & Miller, on brief), Richmond, for appellee.

Present: ANNUNZIATA, BUMGARDNER and FRANK, JJ.

FRANK, Judge.

Linda M. Hall (claimant) appeals an order of the Virginia Workers' Compensation Commission denying her claim for disability benefits. The commission found no causation between her work injury and her disability. On appeal, she contends the commission failed to address the medical opinion of causation and erred in denying her disability benefits for the period from December 21, 2000 through April 1, 2001. Winn-Dixie, Inc. (employer), in its cross-assignment of error, contends the commission erred when it held claimant timely filed her 1998 claim. We find the commission erred when it used a per se standard to determine prejudice to claimant. Therefore, we reverse the award and remand for further proceedings.

BACKGROUND¹

On August 17, 1995, claimant was Bakery Manager for employer. As she was unloading a truck, she felt "a pull" in her back. She reported the accident to her supervisor. Employer filed a First Report of Accident on or about December 21, 1995. Claimant submitted a letter claim on February 15, 2001, seeking temporary total disability benefits from August 17 through September 12, 1995, except for August 20, 1995, and December 21, 2000 through April 1, 2001. This claim is not before us on appeal.

On December 24, 1998, claimant fell while pulling a pallet of bread. She stated she landed on the left side of her back. The claimant testified before the commission that she injured her left hand in the accident. Claimant indicated she immediately told her supervisor, Mr. Mentor, that she injured her back.

At the hearing before the commission, claimant confirmed her address as of January 1996. The evidence established that the commission sent a Notification Letter (blue letter) regarding the 1995 incident and an informational pamphlet to claimant on January 17, 1996, at that same address. While claimant testified she never received the blue letter, the commission found, "there is no evidence that the letter was returned by the U.S. Postal Service." The commission concluded the letter was delivered to claimant.

As to the December 24, 1998 injury, employer filed a First Report of Accident on January 17, 2001, indicating claimant's injuries were "Contusion (bruises, shin surface) Hand." On January 29, 2001, the commission sent a blue letter and pamphlet to claimant regarding the 1998 injury, at the address where she lived in January of 2001. Again, claimant denied receiving the letter.

Claimant filed a letter claim on March 21, 2001, for the injury in 1998 to her back and hand. She sought temporary total disability benefits from December 21, 2000 through April 1, 2001. The deputy commissioner found both claims were barred by the statute of limitations in Code § 65.2-601. On review, the full commission agreed with the deputy commissioner that the August 17, 1995 injury was barred by the statute of limitations. This decision was not appealed to this Court.

The full commission disagreed with the deputy on the December 24, 1998 injury and found the later claim was not time barred. The commission cited Code § 65.2-602, which tolls the statute of limitations on filings by a claimant. Its opinion noted, "The Commission has held that there is per se prejudice when the employer does not file an [Employer's First Report] within two years after notice of an accident." The commission concluded, "employer did not file an [Employer's First Report] until January 17, 2001. The claimant testified that she was unaware of the need to file a claim within two years of the accident. Since the employer failed to file the [Employer's First Report] until more than two years after the accident, we find that its actions have prejudiced her." The commission found the statute of limitations was tolled for claimant and, therefore, her claim was timely filed.

ANALYSIS

We first address employer's assignment of cross-error that the claim from the December 24, 1998 incident is time barred under Code § 65.2-601. Employer argues the commission's "per se prejudice" standard does not eliminate the burden on a claimant to meet the criteria for actual prejudice established in Bristol Newspapers, Inc. v. Shaffer, 16 Va.App. 703, 706, 432 S.E.2d 23, 25 (1993), in order to invoke the tolling provisions of the Code. We agree with employer.

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 First Report under Code § 65.2-900,² which in turn causes the commission to mail its blue letter and compensation guide to the claimant, as required by Code § 65.2-201(D). Code § 65.2-602, the tolling statute, provides, in part:

In any case where an employer has received notice of an accident resulting in compensable injury to an employee as required by § 65.2-600, and . . . the employer has failed to file the report of said accident with the Virginia Workers' Compensation Commission as required by § 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 § 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 § 65.2-900 or he has received after the accident a workers' compensation guide described in § 65.2-201 or a notice in substantially the following form. . . .

Under this language of the statute, in order to toll the statute of limitations, 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 filing a claim prior to the expiration of the statute of limitations." Without proof of prejudice, the commission cannot toll the two-year statute of limitations. See Bristol Newspapers, Inc.,16 Va.App. at 706,432 S.E.2d at 25 ("[N]otice, specified conduct and prejudice are the `three criteria' that must be established by a claimant seeking relief pursuant to" Code § 65.2-602. (emphasis added)); Hervey v. Newport News Shipbuilding & Dry Dock Co., 12 Va.App. 88, 92, 402 S.E.2d 688, 690 (1991) (finding, under the former code section, that failure to file a report of the accident does require the tolling of the statute of limitations). Cf. Westmoreland Coal Co. v. Coffey, 13 Va.App. 446, 448-49, 412 S.E.2d 209, 210-11 (1991)

(discussing the burden of proving prejudice where the employee fails to timely notify the employer of the accident).

The full commission, in finding claimant's second claim was not time barred, stated:

With regard to the alleged December 24, 1998 injury, the employer did not file an [Employer's First Report] until January 17, 2001. The claimant testified that she was unaware of the need to file a claim within two years of the accident. Since the employer failed to file the [Employer's First Report] until more than two years after the accident, we find that its actions have prejudiced her.

The claimant filed a claim on March 21, 2001. Since this claim was filed promptly after the date the employer filed its [Employer's First Report], we find that it was timely filed.

In reaching this decision, the commission opined that a per se prejudice exists if the employer does not file a First Report within two years after a notice of an accident. "Per se" is defined in Black's Law Dictionary, Seventh Edition, as "standing alone, without reference to additional facts, as a matter of law." While the commission employs the words "per se prejudice," its opinions are unclear regarding whether it actually applies this type of presumption.

In McCool v. HealthSouth Medical Center, V.W.C. File No. 192-93-61 (1999) (unpublished), the commission said:

The Commission has held that there is per se prejudice if the employer does not file a First Report within two years after a notice of an accident. Chisolm v. The Washington Post, 77 Va. WC 85 (1998); Ferris v. County of Roanoke, 74 OWC 59, 74 Va. WC 59 (1995), aff'd Roanoke County v. Ferris, 96 Vap UNP 0781953, No. 0781-95-3, 1996 WL 8274 (Va.Ct.App., January 11, 1996) (unpublished); Maleski v. The Jonathan Corporation, 95 WC UNP 1695806, VWC File No. 169-58-06 (March 3, 1995); see Giant Food, Inc., v. Roof, 95 Vap UNP 2189944, Record No. 2189-94-4, 1995

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