Mayberry v. Alcoa Bldg. Products, 0069-93-3
| Decision Date | 08 March 1994 |
| Docket Number | No. 0069-93-3,0069-93-3 |
| Citation | 18 Va.App. 18,441 S.E.2d 349 |
| Parties | James O. MAYBERRY v. ALCOA BUILDING PRODUCTS, et al. Record |
| Court | Virginia Court of Appeals |
Thomas W. Dixon, Jr., Staunton (Nelson, McPherson, Summers & Santos, on brief), for appellant.
C. Ervin Reid, Richmond (G. Rodney Young, II, Wright, Robinson, McCammon, Osthimer & Tatum, on brief), for appellees.
Present: MOON, C.J., and COLEMAN and WILLIS, JJ.
Appellant, James O. Mayberry, appeals the commission's finding that his claim to compensation for work incapacity was barred by the statute of limitations. We affirm because Mayberry had no awardable work incapacity within two years from the date of his accident. Mayberry's original claim was for medical treatment only and not for work incapacity. Mayberry's second application cannot be considered a change in condition application because it was filed more than two years from the date of the accident.
The facts are not in dispute. Mayberry suffered a compensable injury to his back and neck on October 24, 1989, while working for Alcoa Building Products as an extruder operator. Between October 24, 1989 and December 23, 1991, Mayberry did not miss any work as a result of his injury. Shortly after the accident, Mayberry's physician recommended that he not work. Alcoa was informed of the physician's suggested restriction and assigned Mayberry to another part of the extruder line, which was physically less strenuous than Mayberry's previous position. After his new assignment, Mayberry continued to work the same hours and received the same wages as in his pre-injury employment.
Mayberry filed his original application on September 18, 1991, on a "Claims for Benefits" form seeking compensation for the payment of medical bills. With respect to compensation for wage loss, Mayberry indicated that he would have no disability until he had surgery. On October 9, 1991, the insurer voluntarily accepted the claim as compensable, but indicated it was processing the claim as "medical only" because Mayberry had not yet incurred lost wages. On October 29, 1991, the commission notified Mayberry that the employer had accepted his claim as compensable and that when he had surgery he should contact the carrier directly to advise them of his incapacity to work. Mayberry subsequently had surgery and missed work from December 23, 1991 to April 7, 1992.
On February 15, 1992, Mayberry filed an application for a hearing alleging a change in condition on the basis that he was temporarily totally disabled from work as of December 23, 1991. The deputy commissioner found that because Mayberry filed a change in condition application in February, 1992, he was entitled to a compensation beginning ninety days before the date of filing the application. Mayberry was thus awarded temporary total disability benefits for the period from December 23, 1991 through April 7, 1992.
The commission reversed and held that Mayberry was not entitled to compensation for work incapacity. The commission found that because no award was entered for work incapacity within two years from the date of his accident, Mayberry's claim was barred. The commission also found that the claim filed on September 18, 1991 was for medical treatment only and would have been anticipatory if it had been filed for work incapacity. The application filed on February 19,...
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...held that the claim was timely filed on October 7, 2009. In reaching this conclusion, the commission held that Mayberry v. Alcoa Bldg. Prods., 18 Va.App. 18, 441 S.E.2d 349 (1994), was inapplicable because no formal award had been entered in that case, and the claimant had not asserted that......
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...“[T]his provision is jurisdictional, and failure to file within the prescribed time will bar a claim.” Mayberry v. Alcoa Bldg. Prods., 18 Va.App. 18, 20, 441 S.E.2d 349, 350 (1994). The question of “[w]hether a claim is barred by the statute of limitations is a question of law[,]” which “[t......
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