Safeway Stores, Inc. v. John Marvin Larrick ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and Agee
Argued at Alexandria, Virginia
SAFEWAY STORES, INC.
MEMORANDUM OPINION * BY
v. Record No. 2965-00-4 JUDGE ROSEMARIE ANNUNZIATA
JULY 17, 2001
JOHN MARVIN LARRICK
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
C. Ervin Reid (Wright, Robinson, Osthimer &
Tatum, on briefs), for appellant.
John M. Larrick, pro se.
The appellant, Safeway Stores, Inc., appeals an award of
benefits made by the Workers' Compensation Commission to the
appellee, John M. Larrick. Safeway contends: (1) Larrick's
claim is barred under Code § 65.2-601; and (2) the full
commission erroneously considered evidence created before, but
filed after, the date of the deputy commissioner's opinion.
Because we find Larrick's claim is not time-barred, we affirm.
BACKGROUND
Larrick injured his lower back on January 19, 1990, while
lifting a box at work. The employer's first report of the
accident to the commission, dated February 5, 1990, indicated
that Larrick's injury was to his "lower back." Larrick's claim
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
was accepted as compensable by Safeway, and the parties entered
into a memorandum of agreement for payment of compensation. The
agreement, dated March 15, 1990, indicated that the nature of
the injury was "lumbosacral strain."
At some point after his initial back injury, Larrick began
experiencing pain in his neck and shoulder. Larrick estimated
the symptoms began three to four weeks after the lifting
incident; however, he first received treatment for his neck and
shoulder pain in 1994.
Larrick underwent surgery on his lower back in May 1991.
On January 5, 1992, Larrick filed a claim for benefits with the
commission, listing his only injury as a "ruptured disk."
In April 1994, Larrick's treating physician, Dr. H. Edward
Lane, III, referred the employee to Dr. Steven F. Kennedy for
evaluation of his neck and shoulder problems. Larrick reported
to Dr. Kennedy that the shoulder pain stemmed from the January
1990 accident. Larrick admitted, however, that he had had
shoulder, neck and upper back pain since a work-related accident
approximately thirty-five years ago and that he had undergone
trigger point injections in his shoulder without much success as
recently as 1986 and 1987. Dr. Kennedy noted that Larrick's
"MRI demonstrate[d] degenerative changes at C-4/5 with central
disk herniation and some disc herniation lateralizing to the
left side. C-5/6 also ha[d] a disc bulge as [did] C-3/4."
- 2 -
On January 14, 2000, Larrick filed a claim for benefits
seeking payment for medical treatment related to his neck and
shoulder injuries. Although Safeway had paid for treatment to
Larrick's neck and shoulder since 1994, it refused to pay for
any further treatment related to these two areas.
The commission selected the issue for determination on the
record. Each party was directed to file a written statement and
any evidence by February 24, 2000. The parties were
specifically advised that no additional information would be
accepted after that date.
The deputy commissioner found Larrick's neck and shoulder
problems were not causally related to the January 1990 accident
and, therefore, denied benefits for treatment to those areas.
The full commission reversed, finding the neck and shoulder
injuries were causally related to Larrick's lower back injury
suffered in January 1990. In reaching this conclusion, the
commission relied on reports by Dr. Lane, which were also
considered by the deputy commissioner, and in part on a report
by Dr. Khaliqi, which was not considered by the deputy
commissioner because Larrick did not file the report with the
commission until after the deputy commissioner issued his
opinion.
Safeway also contended that Larrick's claim for benefits
relating to his neck and shoulder injuries was time-barred
because he did not file a separate timely claim for these
- 3 -
injuries. In concluding that the claim was not time-barred, the
full commission found that the lower back, neck and shoulder
conditions involved "all the same muscle mass," as Dr. Lane
stated in his report, and that because Safeway had been paying
for treatment for Larrick's neck and shoulder conditions,
Safeway was on notice of those two conditions.
Safeway appealed the commission's ruling to this Court, and
we now affirm.
ANALYSIS
An employee must assert against his employer "any claim
that he might have for any injury growing out of the accident,"
within the two-year statute of limitations period found in Code
§ 65.2-601. Shawley v. Shea-Ball Constr. Co., 216 Va. 442, 446,
219 S.E.2d 849, 853 (1975) (emphasis added). Therefore, if an
employee suffers multiple injuries during the same accident, the
employee must assert a claim for each injury, within the statute
of limitations period. The limitation found in Code § 65.2-601
is jurisdictional. Barksdale v. H.O. Engen, Inc., 218 Va. 496,
497, 237 S.E.2d 794, 795 (1977); Shawley, 216 Va. at 445, 219
S.E.2d at 852. If an employee fails to assert a claim with
respect to a particular injury within two years from the date of
the accident, that claim is forever barred, and the commission
does not have the jurisdiction to consider the claim or make an
award with regard to it. See Code § 65.2-601.
- 4 -
Larrick injured his lower back at work on January 19, 1990.
On February 5, 1990, Safeway filed a first report of accident,
indicating that Larrick's injury was to his "lower back." On
March 15, 1990, the parties entered a memorandum of agreement
for payment of compensation for a "lumbosacral strain." 1 Larrick
filed a claim for benefits on January 19, 1992, listing his
injury as a "ruptured disk." Under Code § 65.2-601, Larrick had
two years from the date of his accident, until January 21, 1992,
to file a claim for any other injuries. Larrick did not file a
separate claim for his neck and shoulder conditions.
Because Larrick did not file a separate claim for his neck
and shoulder conditions, his claim will be deemed time-barred
unless the evidence shows that they constitute the same injury
as the lower back injury, a claim that was timely filed. 2 Cf.
Shawley, 216 Va. at 446, 219 S.E.2d at 853 (holding that where
there are two independent and unrelated injuries resulting from
the same accident, two claims must be timely filed). In
1
"Lumbosacral" is defined as, "pertaining to the loins and
sacrum." Dorland's Medical Dictionary 962 (28th ed. 1994).
"Sacrum" is defined as, "the triangular bone just below the
lumbar vertebrae, formed usually by five fused vertebrae that
are wedged dorsally between the two hip bones." Id. at 1479.
2
We note that Larrick has not claimed that his neck and
shoulder injuries were caused by his lower back injury, thus
falling under the compensable consequences theory. Rather,
Larrick claims the neck and shoulder injuries, together with the
lower back injury, were the direct result of the January 19,
1990 accident.
- 5 -
addressing the issue of whether Larrick's claim was time-barred,
the full commission stated the following:
With regards to the employer's argument that
the claim is time-barred, the employer has
been paying for treatment for both neck and
back pain for ten years. The treating
doctor[, Dr. Lane,] over this period
describes the condition as "all the same
muscle mass." There is no question the
employer was on notice and accepted the neck
condition as compensable along with the
back. Although it may question causation at
this stage, it cannot prevail on a statute
of limitations defense.
The commission relied on the opinion of the treating physician,
Dr. Lane, in finding that Larrick's lower back, neck and
shoulder conditions are the same injury. "If there is evidence,
or reasonable inferences can be drawn from the evidence, to
support the Commission's finding[], [it] will not be disturbed
on review, even though there is evidence in the record to
support a contrary finding." Morris v. Badger Powhatan/Figgie
Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986).
In his opinion, Dr. Lane stated:
It seems that his paraspinal muscles go into
spasm throughout his back. . . . The
paraspinal muscle groups, as you well know,
extend throughout the back and neck, and
irritation of the lumbosacral spine, in the
muscle itself, certainly can affect the same
muscle group higher up, and it appears this
is his issue. We have not defined a major
issue with cervical disc disease, and it
does all seem to be soft tissue and related
to the muscles of his back.
- 6 -
In short, according to Dr. Lane, Larrick suffered one injury to
his back that manifested itself in various symptoms, including
pain in his lower back, neck and shoulder. We find Dr. Lane's
opinion constitutes sufficient evidence to support the
commission's finding that Larrick suffered one injury, albeit
with various symptoms. Thus, Larrick was not required to file a
separate claim for his neck and shoulder injuries; his claim was
timely filed. Accordingly, we affirm the commission's ruling
that Larrick's claim was not time-barred. 3
Finally, Safeway contends that the commission improperly
considered Dr. Khaliqi's opinion on the issue of causation
because it was filed after the deputy commissioner's ruling. We
find this claim is barred under Rule 5A:18. 4 Safeway was not
aware of the alleged error until the commission issued its
written opinion; however, the commission specifically referred
to Dr. Khaliqi's report in its opinion and Safeway failed to
3
Because we affirm on other grounds, we do not address the
commission's additional finding that because Safeway had notice
of Larrick's claim for his neck and shoulder injuries, the claim
was not time-barred.
4
Rule 5A:18 provides:
No ruling of the trial court or the Virginia
Workers' Compensation Commission will be
considered as a basis for reversal unless
the objection was stated together with the
grounds therefor at the time of the ruling,
except for good cause shown or to enable the
Court of Appeals to attain the ends of
justice.
- 7 -
explain why it did not raise the alleged error before the
commission, prior to appealing to this Court. Accordingly, we
will not consider the issue on appeal. Rule 5A:18.
Affirmed.
- 8 -
Agee, J., concurring.
I join the majority opinion as to the Rule 5A:18 issue and
concur in the result that Safeway Stores, Inc. (the employer),
is obligated to pay for the medical treatment to John Larrick
(the claimant) for his neck and shoulder injuries arising out of
the January 1990 accident at issue in this case. However, I
would affirm the Workers' Compensation Commission's (the
commission) decision for reasons which differ from the
majority's analysis.
The controlling question on appeal to us from the
commission is whether it had jurisdiction to consider the
claimant's January 14, 2000 claim for benefits for his neck and
shoulder injuries stemming from a January 1990 accident.
The employer contends that it was error for the commission
to consider the claim, averring that Code § 65.2-601 5 bars the
commission from considering the neck and shoulder claim filed
ten years after the accident as the memorandum of agreement
(approved by the commission) lists only a lumbosacral strain.
The employer argues that Shawley v. Shea-Ball Constr. Co., 216
Va. 442, 219 S.E.2d 849 (1975), controls this matter.
5
Code § 65.2-601 provides "[t]he right to compensation
under [the Workers' Compensation Act] shall be forever barred,
unless a claim be filed with the commission within two years
after the accident."
- 9 -
The Supreme Court of Virginia set out a definitive
statement of the applicable law in Shawley.
Appellant argues here that it was not
necessary for him to specify all injuries in
his original claim, or to assert them within
[the statutory period] . . . . We disagree.
Clearly it is the intent of [the statute]
that . . . an employee must assert against
his employer any claim that he might have
for any injury growing out of an accident.
. . . [I]t is this notice to the employer
and his insurance carrier that gives them
knowledge of the accident and of their
potential liability. Failure to give such
notice within [the statutory time period]
from an accident would seriously handicap
the employer and the carrier in determining
whether or not there was in fact an injury,
the nature and extent thereof, and if
related to the accident. The reason for the
limitation prescribed by [the statute] is a
compelling one.
Id. at 446, 219 S.E.2d at 853.
In its holding, the Supreme Court was clear that notice
made with specificity and asserted within the statute of
limitations is required for a claim to be considered by the
commission. A claimant is thus required to identify all his
injuries within two years of the date of the accident. Any
claims made after the statute of limitations has run, bars the
commission's consideration of this matter as its jurisdictional
authority terminates at the two-year mark. See Code § 65.2-601.
Further, the commission has no authority to rewrite a memorandum
of agreement to encompass the injury or to determine if adjacent
- 10 -
body parts not identified in the agreement are "close enough" to
be covered. 6 See Shawley, 216 Va. at 446, 219 S.E.2d at 853.
If the case at bar was limited to those facts similar to
Shawley, I would agree with the employer that the claimant's
claim was time-barred as the injury identification of
"lumbosacral strain" in the timely filed claim and memorandum of
agreement, and the treatment to the claimant's back, did not put
the employer on notice as to its potential liability for the
later claimed injury to the neck and shoulder. This is
particularly true in this case, as there was no evidence that
the injuries to the neck and shoulder were treated until 1994,
two years after the statute of limitations had run. However,
the facts in this matter are not limited to an analogy to the
facts of Shawley. There is an additional and determinative
circumstance in this case, which vitiates the Shawley defense
and supports recovery by the claimant.
On August 6, 1996, the parties jointly filed, and the
commission approved, an order requiring the employer to pay "all
reasonable medical bills for medical services causally related
to the January 19, 1990, accident which are: (1) rendered by an
authorized health care provider, and, (2) rendered up to and
6
Such an action by the Commission disregards its own
precedent. See Gross v. Wyeth-Ayerst Laboratories, V.W.C. No.
182-73-27 (April 11, 2000), aff'd per curiam, Gross v. Wyeth-
Ayerst Laboratories, Record No. 1081-00-2 (Va. Ct. App.
Oct. 10, 2000).
- 11 -
including eight (8) years from the date of entry of this Order."
(Emphasis added).
By entering into the agreement, the employer chose, in the
prudent exercise of its business judgment, to limit its
potential liability exposure by receiving the quid pro quo from
the claimant of a fixed time period of liability to August 6,
2004. Assuming, arguendo, that the employer had a valid defense
under Shawley on August 5, 1996, it agreed by contract to, in
effect, waive that defense for "medical services causally
related" for a fixed period of exposure (8 years) commencing
after that date. Such decisions are commonly made in
litigation, help to timely resolve controversies and are to be
encouraged by the courts.
The employer must now abide by its bargain. The employer
agreed not to just pay for health care services valid and
enforceable by reason of the January 19, 1990 accident as of
August 5, 1996. To the contrary, the employer agreed to pay for
"medical services causally related" without limitation as to the
enforceability of such a claim on the date of the agreement.
It is this agreement that gives the commission jurisdiction
to consider this matter. "All questions arising under [the
Workers' Compensation Act] . . . shall be determined by the
commission . . . ." Code § 65.2-700. The commission clearly
had statutory jurisdiction to enter the jointly requested August
6, 1996 order and retained jurisdiction to enforce it. The
- 12 -
employer's argument that the commission lost jurisdiction by
reason of the commission approved agreement of the parties is
simply erroneous. "This grant of subject matter jurisdiction
includes the authority of the commission to enforce its orders
and to resolve coverage and payment disputes." Bogle
Development Co. v. Buie, 250 Va. 431, 434, 463 S.E.2d 467, 468
(1995). The commission, therefore, properly asserted
jurisdiction as eight years from the time of the order has not
lapsed.
The focus in this matter then changes to making a
determination of whether the medical treatment provided to the
claimant for the pain in his neck and shoulder was causally
related to the January 1990 accident. While the commission
applied the same analysis of the majority, which I find to be
inapplicable, the commission did make factual findings that
address this issue:
From this record, we find that the treatment
by Dr. Lane and the Fairfax Anesthesiology
Associates for the claimant's back, neck and
shoulder are reasonable, necessary, and
causally related to the accident. Dr. Lane
has been the primary treating orthopedist
since the accident, and he has stated
unequivocally that the lumbar, shoulder, and
neck pain are related.
Factual findings made by the commission will be upheld on
appeal if supported by credible evidence. See James v. Capitol
Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488
- 13 -
(1989). This finding by the commission is supported by the
evidence and, therefore, must be upheld.
The claimant's neck and shoulder pain arose shortly after
the accident. The lumbar laminectomy performed on the claimant
did not ease his pain. The treating orthopedist wrote that
"irritation of the lumbosacral spine, in the muscle itself,
certainly can affect the same muscle group higher up, and it
appears this is [claimant's problem]." A second physician
opined:
[T]his pain is directly related to the
injury [the claimant] experienced while
working for the Safeway store. It is my
feeling that the discomfort in his
lumbosacral spine is directly related to the
pain that [the claimant] is experiencing in
his upper back and the occipital area of his
head. The pain [the claimant] has been
having is directly related to his initial
injury.
The only evidence offered to contradict these medical
opinions is the opinion of the employer's selected physician,
Dr. Wattenmaker, who examined the claimant once. He concluded
that the neck and shoulder pain was unrelated to the 1990
accident. Dr. Wattenmaker, whose reasoning was based on "nothing
more than common sense," opined that if the claimant had
sustained an acute injury to the shoulder or neck he would have
felt pain immediately, not days later. The commission did not
find Dr. Wattenmaker's opinion persuasive in light of the other
evidence.
- 14 -
Thus, finding the commission had authority to assert
jurisdiction in this matter and that the evidence supports a
finding that the neck and shoulder pain was causally related to
the 1990 accident, I would affirm the commission's decision to
hold the employer responsible for the payment of the health care
provider bills for the medical treatment provided the claimant
for these injuries for the reasons set forth above.
- 15 -