Hervey v. Newport News Shipbuilding & Dry Dock Co.

• Decision Date: 19 March 1991
• Docket Number: No. 1100-89-4,1100-89-4
• Court: Virginia Court of Appeals
• Parties: Stephen HERVEY v. NEWPORT NEWS SHIPBUILDING & DRY DOCK COMPANY. Record

Page 688

402 S.E.2d 688

12 Va.App. 88

Stephen HERVEY v. NEWPORT NEWS SHIPBUILDING & DRY DOCK COMPANY.

Record No. 1100-89-4.

Court of Appeals of Virginia.

March 19, 1991.

Oldric J. LaBell, Jr., for appellant.

Lawrence P. Postol (Seyfarth, Shaw, Fairweather & Geraldson, on brief), for appellee.

Present: KOONTZ, C.J., and BAKER and BARROW, JJ.

KOONTZ, Chief Judge.

Stephen Hervey appeals a decision of the Industrial Commission dismissing his application for workers' compensation benefits on the ground that his claim was barred by the two year statute of limitations for filing claims under Code § 65.1-87. Inherent in that decision was the commission's finding that the statute of limitations was not tolled under Code § 65.1-87.1. Hervey contends the statute of limitations was tolled by certain payments to him from Newport News Shipbuilding & Dry Dock Company (Company) and regardless, the Company should be estopped from relying on the statute of limitations since it failed to file an accident report with the commission as required by Code § 65.1-124. In the alternative, Hervey asserts he is entitled to benefits based on an occupational disease claim.

On July 2, 1986, Hervey fell at work and struck his head, lacerating his eyebrow. He reported to the Company clinic where he received medication and several sutures for the lacerations. He returned to work the next day. For the following month, he suffered from dizzy spells and losses of consciousness. However, during his return visits to the clinic for his lacerations, Hervey evidently neglected to inform the clinic physician of his spells of dizziness or unconsciousness. He cannot remember informing the physician and his clinic records contain no reference to these symptoms. On January 20, 1987, Hervey suffered a grand mal seizure, and subsequently has suffered other seizures.

Hervey filed a "Health and Weekly Disability Claim" with the Company's health claims department on January 30, 1987. The claim was filed with the Company's benefits office, which is separate from the Company's workers' compensation department. The benefits office does not handle workers' compensation claims. The Company's health claims department only handles non-occupational injuries or illnesses.

In his claim form, Hervey failed to complete the portions of the form under the heading "Patient & Insured Information" that would have indicated whether the seizures were related to employment and, if related to an accident, when the accident occurred. Likewise, the physician failed to complete his portion of the form indicating the date of the injury. Instead, the form described the seizure as an apparent "single event," without relating it to Hervey's head injury at work.

Prior to the injury, Hervey had never applied for or received workers' compensation benefits. Also, he had never filed a claim for sick pay. Hervey testified that he was under the belief that the claim forms he filed with the Company were for workers' compensation benefits.

During the five months he was away from work, Hervey received from the Company weekly disability payments in the amount of $120, approximately one-half the amount of his weekly salary. The checks did not disclose whether they were workers' compensation or insurance payments. However, the payments were in fact coming from the Company's health and accident policy, not from its workers' compensation insurer. The Company also paid only a portion of Hervey's medical bills while Hervey had to pay a deductible in accordance with the Company's health plan coverage.

For its part, the Company, on July 7, 1986, filed a first report of injury under the Longshore and Harbor Worker's Compensation Act with the federal Office of Workers' Compensation Programs, which administers that act. On January 17, 1989, the Company finally filed with the Industrial Commission a first report of accident, which is required to be filed within ten days after the accident under Code § 65.1-124.

In late August 1988, more than two years after the date of his injury, Hervey filed an application for a workers' compensation benefits hearing. In the application he indicated the hearing was for a change in condition of an accidental injury. There was no indication that the hearing concerned an occupational disease. A hearing was granted and held on February 3, 1989 before the deputy commissioner. After receiving all the evidence and testimony, the deputy commissioner ruled Hervey's right to compensation under the Workers' Compensation Act was barred since Hervey failed to file a claim with the commission for the initial injury within two years. The deputy commissioner noted Hervey's claim was barred unless the Company's acts prevented Hervey from filing a claim. The deputy commissioner concluded that since the Company "duly filed and the claimant received medical benefits pursuant to the employer's health benefit scheme," Hervey was not "sufficiently prejudice [sic] to warrant the requirements necessary to invoke estoppel."

Hervey applied to the commission and obtained a review of the deputy commissioner's decision. In his brief to the commission, he raised three issues: "(1) the construction and application of Section 65.1-87.1; (2) the effect of the fact that the employer did not file an accident report with the Industrial Commission as required by Section 65.1-124 and (3) whether the limitation period (Section 65.1-49) for an occupational disease is applicable in this case." Without addressing the issue of occupational disease, the commission affirmed the decision. The commission ruled the Company's failure to file the first report of accident did not toll the statute of limitations. The commission found there was nothing in the record to show the Company misled or induced Hervey to delay filing a claim, nor any evidence to support a finding of fraud on the Company's part. The commission noted that Hervey received the benefits for which he applied and that he never questioned the inconsistencies between the amount of benefits he received under the health plan and the amount he would have received as workers' compensation benefits.

Since Hervey failed to raise the occupational disease issue in the initial hearing before the deputy commissioner, the full commission, apparently in accordance with the established Rules of the Industrial Commission, refrained from addressing the issue. We also cannot address Hervey's argument that since his injury is an occupational disease, the statute of limitations does not bar his claim. He did not properly raise this issue before the Industrial Commission. We cannot consider an issue raised for the first time on appeal. Rule 5A:18. Thus, we turn to the remaining issues raised by Hervey.

Hervey contends the Company should be estopped from relying on the statute of limitations since it failed to properly file a first report of accident in accordance with Code § 65.1-124. ¹ He argues that if the Company had filed a first report of accident with the commission, then the commission would have sent him a pamphlet informing him of the necessary steps he should have taken to guard his rights; thus, the Company's failure to comply with the statutory directive resulted in prejudice to him.

Hervey erroneously relies on Code § 65.1-87.1 to support his argument. This Code section, in effect at the time of these proceedings, provided in pertinent part:

In any case where an employer has received notice of an accident resulting in compensable injury to an employee ..., and although no award has been entered, such employer nevertheless has paid compensation to such employee during incapacity for work resulting from such injury, 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 sta...