Via v. Citicorp Mortg., Inc., 1433-89-2

• Decision Date: 10 July 1990
• Docket Number: No. 1433-89-2,1433-89-2
• Citation: 10 Va.App. 572,394 S.E.2d 505
• Parties: Ann Stafford VIA v. CITICORP MORTGAGE, INC., et al. Record
• Court: Virginia Court of Appeals

Page 505

394 S.E.2d 505

10 Va.App. 572

Ann Stafford VIA v. CITICORP MORTGAGE, INC., et al.

Record No. 1433-89-2.

Court of Appeals of Virginia.

July 10, 1990.

Lynn F. Jacob (Williams, Mullen, Christian & Dobbins, Richmond, on brief), for appellant.

John M. Oakey, Jr. (McGuire, Woods, Battle & Boothe, Richmond, on brief), for appellee.

Present: KOONTZ, C.J., and BENTON and MOON, JJ.

KOONTZ, Chief Judge.

Ann Stafford Via appeals a decision of the Industrial Commission denying her claim for benefits for an illness related to her employment. Via asserts on appeal that the commission erred in finding that her claim was barred by the statute of limitations under Code § 65.1-52. We find that there was insufficient notice to Via to commence the running of the statute of limitations on the date which the commission ruled that it began to run and that the commission failed to toll the running of the statute of limitations during the period of time Via was incompetent.

We restate the facts only as necessary to explain our decision. Via was employed by Citicorp Mortgage, Inc. (Citicorp) as a business developer in Vienna, Virginia. In October 1984, she was selected to work on a test-pilot program in Maryland upon the insistence of the president of Citibank, Maryland. Although Via pleaded with her manager to send someone else, she was sent to Baltimore. While in Baltimore on this assignment, Via began experiencing nervousness and had difficulty eating and sleeping due to the pressures of her work. When Via returned to work at her office in Vienna at the end of November, she told her supervisor that she was ill and then drove herself to her apartment and collapsed. She subsequently took a leave of absence from work and went to stay with her father and sister in Richmond, Virginia.

In December 1984, Via consulted her family physician, Dr. Sutphin, concerning her problems due to her work. Dr. Sutphin referred her to a psychiatrist, Dr. Brooks, who began seeing Via in January, 1985. On January 18, 1985, Dr. Brooks assisted Via in preparing a note to her employer stating that she was unable to return to work at that time due to problems of fatigue related to her employment. At that time, Dr. Brooks discussed her condition with her and informed her that the diagnosis "lay between Dysthymic Disorder and Major Affective Disorder, depression."

On January 23, 1985, Via was hospitalized due to an apparent suicide attempt and while she was hospitalized she came under the care of Dr. Nalls and Dr. Foster, both psychiatrists. She remained in the hospital until March 1985. On June 3, 1985, Dr. Nalls released Via to return to her employment. At that time, testing indicated that she suffered from significant organic impairment with chronic underlying depression. After working in Citicorp's Richmond office for several months, Via's mental condition deteriorated and she was readmitted to the hospital in November 1985. She was discharged again in December 1985 and returned to work for Citicorp from January 1986 until March 1986, when she permanently left her employment. Since that time, she has been primarily under the care of Dr. Foster.

In July 1986, Via was involuntarily committed to Westbrook Psychiatric Hospital, where she remained until September 1986. She attempted employment briefly at grocery stores as a checkout clerk in February or March 1987 and again in December 1987 but was unable to cope and went back into the hospital in December 1987. Other periods of hospitalization occurred in January, February, March, October and November 1988.

In February 1988, Via briefly saw another psychiatrist, Dr. Ettigi, who communicated to her the diagnosis of bipolar disorder (also known as manic depressive illness). Dr. Foster stated that he did not communicate this diagnosis to her sooner because he was unsure of the diagnosis and because persons with this condition usually either refuse to accept the diagnosis or become further depressed by it.

Via filed an application for hearing, claiming benefits for the bipolar disorder on August 29, 1988. The deputy commissioner denied her claim on the ground that it had been filed more than two years after Via first became aware that her condition was related to her employment at Citicorp in January 1985. On appeal, the full commission affirmed, finding that Dr. Brooks' note of January 18, 1985 was "a communication of the diagnosis to the employee of a depression disorder coming from her work which was sufficient to commence the statute of limitations" and that there was "no evidence to indicate that she was not capable of acting for herself" up until the time that the statute of limitations had expired.

Via argues on appeal that Dr. Brooks' communication to her that she was suffering from a depression disorder which "lay between Dysthymic Disorder and Major Affective Disorder, depression" was insufficient notice that she was suffering from bipolar disorder and, therefore, the statute of limitations did not begin to run at that time. We agree.

A claimant must file a claim for compensation for an occupational disease (other than coal miners' pneumoconiosis, byssinosis, asbestosis, or infection with human immunodeficiency virus) with the Industrial Commission within two years after a diagnosis of the disease is first communicated to the employee or within five years from the date of the last injurious exposure in employment, whichever occurs first. Code § 65.1-52(3). The filing of a claim within the limitation period is jurisdictional. Musick v. Codell Construction Co., 4 Va.App. 471, 473, 358 S.E.2d 739, 740 (1987) (citing Anderson v. Clinchfield Coal Co., 214 Va. 674, 675, 204 S.E.2d 257, 258 (1974)). The burden is on the claimant to prove compliance with the statute. Anderson, 214 Va. at 675, 204 S.E.2d at 258. Code § 65.1-46.1 makes ordinary diseases of life compensable in the same manner as occupational diseases if they are sufficiently connected to a claimant's employment. See Island Creek Coal Co. v. Breeding, 6 Va.App. 1, 9, 365 S.E.2d 782, 786-87 (1988). In this case, the commission did not reach the issue of compensability because it held that the claim was not filed within the applicable two year limitation period; therefore, we do not address the compensability issue on appeal.

The two year limitation period under Code § 65.1-52 begins to run when the claimant receives a positive diagnosis of occupational disease. A tentative diagnosis will not trigger the running of the limitation period. See Blue Diamond Coal Co. v. Pannell, 203 Va. 49, 52, 122 S.E.2d 666, 668 (1961) (physician's statement that claimant should be x-rayed because he "may" have pnuemoconiosis did not trigger limitation period). The diagnosis need not contain precise medical terminology as long as the diagnosis is definite and informs the claimant in clear and understandable language that he or she is suffering from a disease that arises out of and in the course of employment. Hawks v. Henrico County School Bd., 7 Va.App. 398, 403-04, 374 S.E.2d 695, 698 (1988). At the time Via was informed by Dr. Brooks that her problems of depression, lack of sleep, tension and anxiety were related to her employment, he had not formed a definite diagnosis of her condition. Although Dr. Brooks told Via that these symptoms were related to her employment, he stated only a preliminary diagnosis that her condition lay somewhere...