Written by Jessica Gorman, Esq.
Edited by Rachel Riordan, Esq.
In Virginia, an employee has two years to file a claim for body parts and to identify those injuries asserted from the work accident. But what happens after the statute of limitations has run? Can an injured worker get around the two-year statute to allow for additional injuries without having the statute of limitations tolled? If the complaints and body parts are closely related, it is certainly a possibility. In the discussion below, we address a case in which an employee injured her shoulder only to be awarded a cervical injury after the two-year statute had passed. Below you will see the reasoning for how the injured worker was able to get around this two-year statutory requirement and recommendations for how to handle your case to keep this from happening.
An employee must assert against the 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). 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. (Id.) 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. “Statutory construction may not be used to extend the rights created by the Act beyond the limitations and purposes set out therein.” Garcia v. Mantech International Corp., 2 Va. App. 749, 754, 347 S.E.2d 548, 551 (1986). 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.
However, if the evidence shows that the alleged injuries constitute the same injury as one previously claimed, the claim will be deemed timely filed. Larrick v. Safeway Stores, Inc., VWC File No. 144-52-54 (November 21, 2000) aff’d Record No. 2965-00-04 (Va. Ct. App. July 17, 2001) (unpublished); see also Shawley, 216 Va.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)(emphasis added); see also Megginson v. The Babcock and Wilcox Company, VWC File No. 117-55-06 (June 8, 2000).
Many injured workers rely upon Corporate Resource Management v. Southers, 51 Va. App. 118, 655 S.E.2d 34 (2008) (en banc), to support claims to add additional injuries not originally claimed within the two years statute of limitations when dealing with cervical and shoulder injuries. In Southers, the Court of Appeals of Virginia found the employee’s claim of a neck injury was not barred. Southers had fallen onto her left shoulder, and her employer had accepted her timely claim of a left shoulder injury. Of importance in this case, following the initial accident and before expiration of the statute of limitations, Southers complained of consistent symptoms of shoulder and neck pain but did not file a claim for a neck injury. She believed her injury was attributable to the left shoulder and only later learned from her physician that she had sustained a cervical injury as a result of the accident. The Court of Appeals of Virginia found benefits for a spinal injury were not barred by the statute of limitations because “physicians were not initially successful in identifying the source of her symptoms, . . .” Id. at 131, 655 S.E.2d at 40. (Emphasis added).
In order to maintain the two-year statute of limitations and avoid adding additional injuries and additional treatment, it is imperative that the facts of your case be distinguishable from Southers. Specifically, if confronted with a situation as listed above, you would want to show how the initial injury was solely to the one body part you accepted and that the complaints were only to that body part. If you can show that during the initial two- year period the injured workers’ complaints solely revolved around that one injury, with multiple physicians having evaluated the Claimant without identification of any other condition, the facts will be able to separate out and show that there were two distinct injuries.
As a practice point, when taking recorded statements, it is important to ask what the symptoms are, the body parts which were injured, and get them to confirm that there were no other injuries as a result of the accident. This way, if they come back after the two-year period, you will have one additional piece of evidence to rebut their position. Not to be forgotten, of course the medical evidence is also crucial. You will want to ensure that your medical records over that two-year period fail to document any additional injuries which are later asserted. You also have a stronger case if you can show that the injured workers’ symptoms changed over time rather than stayed the same following the accident. For example, if you can show the medical evidence over the initial two-year period was consistent for solely shoulder complaints, without any weakness in the deltoid distribution or numbness or tingling of such a nature that would reflect a radicular component for a cervical injury, you will have a better argument against any new cervical injury which may be asserted.
The more you can show and argue that the injured workers’ new injury asserted is one which is separate and distinct from the initial accident, you will be able to argue that any new claims should be barred by the statute of limitations and that the notice requirements of 65.2-601 as established in Shawley and Garcia should be upheld.