Shawley v. Shea-Ball Const. Co.

• Decision Date: 01 December 1975
• Docket Number: SHEA-BALL,No. 750170,750170
• Citation: 219 S.E.2d 849,216 Va. 442
• Court: Virginia Supreme Court
• Parties: Karver E. SHAWLEY v.CONSTRUCTION CO. et al. Record

Page 849

219 S.E.2d 849

216 Va. 442

Karver E. SHAWLEY v. SHEA-BALL CONSTRUCTION CO. et al.

Record No. 750170.

Supreme Court of Virginia.

Dec. 1, 1975.

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

Thomas C. Palmer, Jr., Fairfax (Brault, Lewis, Geschickter & Palmer, Fairfax, on brief), for appellees.

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

HARRISON, Justice.

Karver E. Shawley, an employee of Shea-Ball Construction Company, was injured on January 18, 1973, while descending on a ladder into one of the subway tunnels of the Metro Subway System under construction in Arlington. The ladder slipped and Shawley fell, injuring his left foot and ankle. Shea-Ball and its workmen's compensation carrier, Argonaut Insurance Company, appellees, accepted the claim as being compensable and entered into a memorandum of agreement with Shawley. The agreement described the nature of the injury as 'right hip and left ankle'. Pursuant to an award by the Industrial Commission of Virginia, dated March 23, 1973, Argonaut began paying Shawley compensation for total work incapacity at a weekly rate of $70, beginning March 8, 1973.

On July 11, 1974, appellees filed an application with the Commission for a hearing based upon a change of condition, and alleged that Shawley had 'reached maximum improvement and has been rated as having 5% PPD (Permanent Partial Disability) of the left ankle'. The Commission found probable cause and granted a hearing. On November 13, 1974, Commissioner Joyner denied and dismissed the application. On appeal, his action was reviewed and reversed, and, by unanimous decision, the full Commission concluded that by July 13, 1974, the maximum improvement of Shawley's injured left leg had been attained. It found a 20% Permanent partial loss of the use of the left leg and entered an award in accordance with this finding.

A detailed review of the numerous letters and medical reports from the physicians and surgeons who attended and examined Shawley is not necessary. It suffices to note that the record shows that between January, 1973, and November, 1974, Shawley was seen and examined by at least nine physicians for various complaints, some obviously unrelated to the accident.

Shawley's principal assignment of error deals with the refusal of the Commission to include in its consideration of his claim for a left ankle injury his additional claim for alleged back and right leg injuries. The Commission found that:

'No written claim for injury to the back or right leg was filed with the Commission within one year from the date of accident as required by § 65.1--87, Code of Virginia. Moreover and admittedly, it was only beginning around February 1974 that the first reference was made or appears in reports to any back or right leg condition.

'The evidence herein plainly establishes that no assertion or complaint of back or right leg injury was even made under thirteen months after the occurrence of the January 18, 1973 accident.'

These findings of fact are conclusive and binding upon this Court. Code § 65.1--98; Mills v. Virginia Electric, etc., Co., 197 Va. 547, 90 S.E.2d 124 (1955), and Burlington Mills v. Hagood, 177 Va. 204, 13 S.E.2d 291 (1941).

An examination of the medical reports and other documents submitted within the twelve month period from the date of the accident fails to disclose any reference to an injury to Shawley's back or to his right leg or right ankle. Nowhere in any of the reports is it recorded that Shawley complained of such an injury within that period. The only reference to the right ankle during the twelve months following the accident is found in an orthopedic report of an examination of appellant by Dr. Thomas L. Neviaser who wrote on November 19, 1973: 'His (Shawley's) right ankle is aching now because he is putting most of his weight on his right side.' After a most thorough examination of Shawley, Dr. Neviaser, without any mention of a back injury, gave his opinion that 'this patient's left ankle has instability and traumatic arthritis secondary to his original accident and evidence of changes in the right ankle compatible with a mild amount of arthritis which is due to an old injury which the patient had many years ago.'

In Dr. Maurice H. Herzmark's report on Shawley's condition, dated June 14, 1973, he noted Shawley's past history of a fracture of his right ankle in 1964, and of a back injury in 1959, which was re-injured in 1966. It is significant that notwithstanding the fact that he treated Shawley for both of these old injuries, Herzmark made no reference in his report to a possible re-injury to, or aggravation of, the right ankle or back in the 1973 accident. He made no reference to any complaint by Shawley that his back and right ankle were injured in the 1973 accident or that he was then suffering therefrom. Herzmark's impression and report of Shawley's condition in June, 1973, concerned only the left ankle and left foot. It was not until February 20, 1974, that Dr. Herzmark mentioned any possible back involvement or complaint.

The appellees' application, alleging a change of condition, was resisted by Shawley on the ground that he continued to be totally disabled 'from other injuries received in his industrial accident on January 18, 1973'. At the August 20, 1974 hearing, appellant testified that both his back and right ankle injuries were related to the accident. It was upon consideration of the entire record on review that the Industrial Commission reversed and vacated the decision and award of Commissioner Joyner made on November 13, 1974. The Commission found that the back and right ankle claims asserted by appellant were for injuries not covered by the memorandum of agreement or by its original award; that they were claims for new injuries not theretofore asserted by appellant; and that they were barred by the provision of Code § 65.1--87, which required that a claim be filed with the Commission within the year after the accident or be forever barred. ¹

Binswanger Glass Co. v. Wallace, 214 Va. 70, 73--74, 197 S.E.2d 191, 193--94 (1973), deals with the limitations prescribed in Code §§ 65.1--87 and 65.1--99. There we said:

'It is well settled that a claimant under the workmen's compensation law must show that his original claim was timely filed, for such filing within the statutory period is jurisdictional. Coal Company v. Pannell, 203 Va. 49, 122 S.E.2d 666 (1961). 'The right to compensation under the workmen's compensation law is granted by statute, and in giving the right the legislature has full power to prescribe the time and manner of its exercise.' Winston v. City of Richmond, 196 Va. 403, 407, 83 S.E.2d 728, 731 (1954). The language of § 65.1--87, relating to the filing of an original claim, is clear. It deals with the right to compensation under the Workmen's Compensation Act, and the same statute which gives the right provides that the right shall be forever barred unless exercised within a year.

'There is logic in treating the limitation prescribed in Code § 65.1--87 as jurisdictional and the limitation provided in § 65.1--99 as not jurisdictional.

"'(A) change in condition is quite different from the right to recover for the injury itself. . . . It is impossible to have a change in condition without a prior award. A change in condition is based upon an award in a compensable case. Its object is purely remedial, as it enlarges or diminishes the former award to meet the circumstances of a particular case.'' Allen v. Mottley Construction Co., 160 Va. 875, 886, 170 S.E. 412, 416 (1933).

'The basic nature of the notice required by Code § 65.1--87 and the necessity for an applicable jurisdictional limitation are apparent. Such notice is often the first knowledge that an employer and his insurance carrier have of an accident and of their potential liability. It is this notice that sets in motion the machinery to determine whether or not an employee has in fact been injured, the nature of the injury, whether it arose out of and in the course of his employment, whether permanent or temporary, and whether compensable or not. This is the notice which activates the right...