Roanoke County v. Mason Walter Ferris ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
ROANOKE COUNTY
AND
CONSOLIDATED RISK MANAGEMENT SERVICE, INC.
MEMORANDUM OPINION *
v. Record No. 0781-95-3 PER CURIAM
JANUARY 11, 1996
MASON WALTER FERRIS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Gregory P. Cochran; Caskie & Frost, on brief), for
appellants.
(Gary L. Lumsden; Rhonda L. Overstreet, on brief), for
appellee.
Roanoke County and its insurer (hereinafter collectively
referred to as "employer") contend that the Workers' Compensation
Commission erred in finding that the applicable two-year statute
of limitations contained in Code § 65.2-601 did not bar the
commission from awarding compensation to Mason Walter Ferris.
Specifically, employer contends that (1) because it filed a
"Report of Minor Injuries," claimant was not prejudiced by its
failure to file the Employer's First Report of Accident; and (2)
even without considering the Report of Minor Injuries, claimant
was not prejudiced by employer's failure to file the Employer's
First Report of Accident. Upon reviewing the record and the
briefs of the parties we conclude that this appeal is without
merit. Accordingly, we summarily affirm the commission's
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
decision. Rule 5A:27.
I. Report of Minor Injuries
Any theory of recovery or argument not raised before the
commission will not be considered by this Court for the first
time on appeal. Rule 5A:18. See also Kendrick v. Nationwide
Homes, Inc., 4 Va. App. 189, 192, 355 S.E.2d 347, 349 (1987).
Employer did not raise the issue of how its filing of the Report
of Minor Injuries impacted upon the prejudice suffered by
claimant. Accordingly, we will not consider this argument on
appeal.
II. Prejudice to Claimant Caused by Employer's Failure to Timely
File the Employer's First Report of Accident
On appeal, we review the evidence in the light most
favorable to the prevailing party below. R.G. Moore Bldg. Corp.
v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
The parties stipulated that claimant sustained a compensable
injury by accident on January 24, 1992 resulting in left leg and
knee injuries. On the date of the accident, claimant sought
medical treatment from Dr. Curtis S. Mull, who diagnosed a torn
medial meniscus related to his January 24, 1992 injury by
accident. On April 6, 1992, Dr. Mull noted that claimant's knee
was doing well, but that he might need surgery in the future.
Dr. Mull discharged claimant from his care on that date and he
returned to his pre-injury work. Between April 7, 1992 and April
27, 1994, claimant did not seek medical treatment for his left
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knee, except to obtain a new knee brace. On April 27, 1994,
claimant returned to Dr. Mull complaining that his knee was
locking. Dr. Mull recommended that claimant undergo an
arthroscopy and a partial meniscectomy on his left knee. Dr.
Mull related this surgery to the January 24, 1992 injury by
accident.
Claimant filed a claim for benefits on July 20, 1994, more
than two years after the January 24, 1992 injury by accident. On
August 10, 1994, employer filed the Employer's First Report of
Accident. Claimant testified that he never received the notice
set forth in Code § 65.2-602.
Pursuant to Code § 65.2-602, the two-year statute of
limitations is tolled where employer received notice of the
accident, employer failed to file an Employer's First Report of
Accident, and employer's conduct prejudiced the employee's right
with respect to filing a timely claim. Bristol Newspapers, Inc.
v. Shaffer, 16 Va. App. 703, 706-07, 432 S.E.2d 23, 25 (1993). 1
Here, employer did not dispute that it received notice of
claimant's accident when it occurred, and that it did not file an
1
This case is distinguishable from Bristol Newspapers. In
Bristol Newspapers, unlike this case, employer filed the
Employer's First Report of Accident three months after the
employee's industrial accident and the employee received the
"blue letter" and "employee's guide" from the commission. 16 Va.
App. at 707, 432 S.E.2d at 25. Moreover, Hervey v. Newport News
Shipbuilding & Drydock Co., 12 Va. App. 88, 402 S.E.2d 688(1991), cited by employer, was decided under former Code
§ 65.1-87.1, before the General Assembly added the provisions
pertaining to the failure to file an Employer's First Report of
Accident to present Code § 65.2-602.
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Employer's First Report of Accident until August 10, 1994, after
the expiration of the two-year statute of limitations. Employer
presented no evidence to show that claimant received notice from
the commission concerning his right to file a claim prior to the
expiration of the limitations period. Therefore, under these
facts, the commission did not err in finding that employer's
conduct prejudiced claimant from filing a timely claim.
For these reasons, we affirm the commission's decision.
Affirmed.
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