Leonard v. Arnold, 760795

• Decision Date: 01 September 1977
• Docket Number: No. 760795,760795
• Citation: 218 Va. 210,237 S.E.2d 97
• Parties: R. H. LEONARD and Erie Insurance Exchange v. William A. ARNOLD. Record
• Court: Virginia Supreme Court

Page 97

237 S.E.2d 97

218 Va. 210

R. H. LEONARD and Erie Insurance Exchange v. William A. ARNOLD.

Record No. 760795.

Supreme Court of Virginia.

Sept. 1, 1977.

Norman A. West, Fairfax (West & Zabriskie, Fairfax, on briefs), for appellants.

J. Hunt Brasfield, Alexandria (Ashcraft, Gerel & Koonz, Alexandria, on brief), for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

I'ANSON, Chief Justice.

At the outset, we are confronted with a motion by appellee to dismiss this appeal for failure of the appellant to timely "file with the clerk of this Court a designation of the parts of the record that he intends to include in the appendix." Rule 5:36(a).

Since the entire proceedings conducted before the Industrial Commission are included in the appendix and appellee has not been prejudiced, we hold that the failure of the appellant to designate "the parts of the record that he intends to include in the appendix" within the time required by the Rule is not jurisdictional. Hence, the motion to dismiss is overruled.

The question presented on this appeal is whether the employee's second accident and the resulting injury is a "change in condition" for which he may file his claim for workmen's compensation within one year after he last received compensation for the first injury under the provisions of Code § 65.1-99, or a new accident which requires notifying the employer, his agent or representative, within the time required by Code § 65.1-85, ¹ and the filing of a claim for compensation with the Industrial Commission under the time limitation set forth in Code § 65.1-87. ²

William A. Arnold, an employee of R. H. Leonard, sustained a fracture of the right heel bone in an accident arising out of and in the course of his employment on June 3, 1974. As a result of the injury, a short leg cast was applied, and Arnold was given crutches to assist him in walking.

On June 14, 1974, Arnold, his employer, and employer's insurance carrier Erie Insurance Exchange, entered into an agreement providing that Arnold would receive compensation of $80 per week, during incapacity, and medical benefits, beginning on June 11, 1974. The Industrial Commission entered its order approving the agreement on July 3, 1974.

Eight days after the June 3, 1974 injury, Arnold was descending the stairs in a restaurant when his crutches caught in some metal stripping which caused him to fall. As a result of the fall, he sustained injuries to his upper back, shoulders, and neck. The cast on his heel was damaged, but no further injury occurred to his heel. After treatment in a hospital emergency room, Arnold went to the office of Dr. David Couk, the same carrier-authorized physician who was treating him for the heel fracture. At that time Arnold advised Dr. Couk of his trip-and-fall as shown on the doctor's report, dated July 17, 1974, to the assistant claims manager of the carrier.

On October 22, 1975, the carrier, having paid compensation for the heel injury through October 27, 1975, filed its application with the Industrial Commission requesting a hearing on the ground that Dr. Couk had reported Arnold had reached maximum improvement for the injured heel and that a permanency rating of 10% was in order.

The insurer's application came on for hearing on December 17, 1975 before Deputy Commissioner Yates. The parties agreed on the permanency rating, and it is not an issue here. But at that time, Arnold made an oral application for additional compensation based on a subsequent change in condition due to the development of a "cervical disc" problem caused by his fall on June 11, 1974. The evidence before the commissioner consisted of the reports of Dr. Couk and Dr. Bortnick, the testimony of Arnold relating to his fall and injuries sustained on June 11, 1974, and the acknowledgment of the deputy claim examiner for the insurer that he received Dr. Couk's report showing Arnold had informed him of the June 11 fall.

Dr. Bortnick's report shows that he performed "anterior cervical disc removal and fusion" on February 13, 1975 and that Arnold's "problem was related to the fall on June 11, 1974 because he was on crutches."

Dr. Couk's report states that he "emphatically feel(s) that the injury to (Arnold's) neck and spine resulting in disc surgery, were unrelated to the injury which brought about the fracture of the right (heel)."

Deputy Commissioner Yates found the insurer had been advised of the June 11, 1974 fall within the time required by statute; "that the fall at the restaurant did not complicate or aggravate the fractured heel bone" but "flowed as a natural consequence from the original industrial accident of June 3, 1974" and was "not a new accident such as required notice under Code § 65.1-87 * * * but rather a change in condition under § 65.1-99 * * * which was and has been timely brought." The full commission affirmed Deputy Commissioner Yates' findings of law and fact. Thus, Arnold was awarded compensation for the injuries sustained as a result of the fall on June 11, 1974.

The insurer argues that the injury sustained on June 11, 1974 was from a new accident and that Arnold's claim was barred for his failure to comply with the time limitations set forth in Code §§ 65.1-85 and 65.1-87.

On the other hand, Arnold argues that the injury of June 11, 1974 was a change in condition and that he applied for compensation within the year after the last payment of compensation for the heel injury under the requirement of Code § 65.1-99.

Code § 65.1-8 provides:

"Change in condition as used in this Act means a change in physical condition of the employee as well as any change in the conditions...