COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Huff,  Judges Chafin and Decker Argued at Richmond, Virginia

J. L. KENT & SONS, INC. AND COMMONWEALTH CONTRACTORS GROUP SELF-INSURANC E ASSOCIATION/ THE LANDIN COMPANIES MEMORANDUM OPINION  BY CHIEF JUDGE GLEN A. HUFF v. Record No. 1161- 14-2 JANUARY 27, 2015

RICHARD KILBY

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Daniel E. Lynch (John T. Corne tt, Jr.; Lynch & Cornett, P.C., on briefs), for appellants. George Townsend (Amber H. Russo; HammondTownsend, on brief), for appellee.

J. L. Kent & Sons, Inc. and Commonw ealth Contractors Group Self-Insurance Association/The Landin Companies (collectively “employer”) appeal a decision of the Virginia Workers’ Compensation Commissi on (“commission”) finding that claimant’s injuries to his bilateral sacroiliac joints (“SI joints”) were not barred by the statute of limitations. On appeal, employer asserts that the commi ssion erred 1) in finding that the claimant’s claim seeking medical treatment relative to his SI joints was not barred by the statute of limitations despite such claim not being filed within two years of the da te of his accident; and 2) awarding the claimant

 On January 1, 2015 Judge Huff succeeded Judge Felton as chief judge.

 Pursuant to Code § 17.1-413, this opinion is not designated for publication.UNPUBLISHED- 2 - benefits pursuant to the Act relative to his SI jo ints. For the following reasons, this Court affirms the rulings of the commission.

I. BACKGROUND On appeals from th e commission, “we review the eviden ce in the light most favorable to the prevailing party.” R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). If supported by credible eviden ce, the commission’s factual findings are “binding on appeal,” Tomes v. James City Fire, 39 Va. App. 424, 430, 573 S.E.2d 312, 315 (2002), “even though there is evidence in the r ecord 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). When “determining whether credible evidence exists,” we cannot “retry the facts, reweigh the preponderance of the evidence, or make [our] own determination of the credibility of the witnesses.” Wagner Enters. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). In addition, the commission’s “conclusions upon conf licting inferences, legitimately drawn from proven facts, are equally binding on appeal.” Watkins v. Halco Eng’g, Inc., 225 Va. 97, 101, 300 S.E.2d 761, 763 (1983). So viewed, the evidence is as follows. On February 14, 2011, claimant suffered a compensable work-related injury after he was “involved in a motor vehicle accident while driving employer’s truck.” On April 9, 2012, the commission entered an award for temporary total disability benefits for claimant. Specifically, the commission determined claimant suffered “[f]ractured ribs, right leg abrasion and forehead laceration.” On June 12, 2012 and October 11, 2012, claimant sought additional relief for injuries to his back and spine and approval of a lumbar MRI recommendation. At a hearing before the deputy commissioner on April 22, 2013, claimant requested relief “for his [SI joints]” and “repayment of his payment of medical bills and also mileage.” At the hearing, claimant indicated he “had a previous injury to [his] back” and received a “triple- 3 - laminectomy.” Claimant stated, however, th at after the February 14, 2011 accident he experienced new pain and symptoms in both of his hips and legs. Because of the new pain,

claimant received treatment from Dr. Robe rt Squillante (“Squilla nte”), who previously performed claimant’s triple laminectomy. Squillante provided injections to treat claimant’s pain in his SI joints between 2009 and 2013, however, Squillante indicated the frequency of the injections began to increase in the summer of 20 13. Squillante stated that claimant’s major issue is “both of his SI joints” and “[ a]s of late he’s required . . . large numbers of shots.” On September 18, 2013, the deputy commissione r released its opinion and found no medical evidence stating the clai mant’s [SI] joint condition is a compensable consequence of his orig inal injuries. In fact, we find that the condition was pre-existing and aggravated by the February 14, 2011, accident, but such an aggravation must have been claim[ed] in a timely manner. Ther efore, we find that his claim for recognition of his SI joint condition as an original injury is barred by the statute of limitation pursuan t to Virginia Code Section 65.2-601. Claimant filed a timely request for review by th e commission. Claimant argued “his claim for injuries to the [SI] joints were subsumed within his claim for ba ck and spine injuries . . . .” On May 27, 2014, the commission issued its opin ion affirming in part and reversing in part the deputy commissioner’s findings. Speci fically, the commission re lied on Corporate Res. Mgmt. v. Southers, 51 Va. App. 118, 655 S.E.2d 34 (2008), and found that the claimant consistently reported pain and stiffness in both his back and his SI joints. Over time the claimant’s treating physician was able to determine that his low back pain was caused by SI joint instability. The claimant’s symptoms did not change; his diagnosis did. We find that applyi ng the statute of limitations bar would not be in accord with the “humane and beneficent purposes of the act.” Bradshaw v. Aronovitch, 170 Va. 329, 336, 196 S.E. 684, 686 (1938). As a result we will enter an award for medical benefits, including treatment of the claimant’s SI joints. This appeal followed.- 4 - II. STANDARD OF REVIEW “Factual findings of the commission will not be disturbed on appeal unless plainly wrong

or without credible evidence to support them.” Ga. Pac. Corp. v. Dancy, 17 Va. App. 128, 135, 435 S.E.2d 898, 902 (1993) (citation omitted). “‘If th ere is evidence, or reasonable inferences can be drawn from the evidence, to support the commission’s findings, they will not be disturbed on review, even though there is evidence in the re cord to support a contrary finding.’” Amelia Sand Co. v. Ellyson, 43 Va. App. 406, 408, 598 S.E.2d 750, 751 (2004) (quoting Morris, 3 Va. App. at 279, 348 S.E.2d at 877). “When, however, there is ‘no conflict in th e evidence the question of the sufficiency thereof is one of law.’” Gwaltney of Smithfi eld, Ltd. & Travelers Inde m. Co. v. Hagins, 32 Va. App. 386, 392, 528 S.E.2d 162, 165 (2000) (quoti ng City of Norfol k v. Bennett, 205 Va. 877, 880, 140 S.E.2d 655, 657 (1965)). “Unlike ques tions of fact, which are binding on this Court if supported by evidence, we review questions of law de novo .” Rusty’s Welding Serv., Inc. v. Gibson, 29 Va. App. 119, 127, 510 S.E.2d 255, 259 (1999) (citing Si nclair v. Shelter Constr. Corp., 23 Va. App. 154, 156-57, 474 S.E.2d 856, 857-58 (1996)).

III. ANALYSIS

A. Statute of Limitations Employer asserts that the commission erred in finding that the claim seeking medical treatment relative to claimant’s SI joints was not barred by the statute of limitations despite not being filed within two y ears of the date of his accident. Specifically, employer relies on the Supreme Court’s decision in Shawley v. Shea-Ball Constr. Co., 216 Va. 442, 219 S.E.2d 849 (1975), and contends that claima nt never informed the commission of SI joint problems, despite a history of SI joint issues, unt il he filed for benefits with the commission beyond the two-year- 5 - limitation period. Claimant counters that Southers, 51 Va. App. 118, 655 S.E.2d 34, is controlling in the current matter and that claimant adequately complained of SI joint pain during the limitations period. Code § 65.2-601 provides that “[t]he ri ght 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.” On appeal, “[w]hether the information filed with the commission is sufficient to constitute a timely filed claim for a particular injury is a question of fact, and the commission’s finding will not be disturbed on appeal if supp orted by credible evidence.” Southers, 51 Va. App. at 127, 655 S.E.2d at 38. In Shawley, the Supreme Court determined th at claimants must spec ify, within the period of limitations, all injuries suffered from the wo rk-related accident. 216 Va. at 446, 219 S.E.2d at 853. In support of its holding, the Supreme Court enumerated reasons for requiring a claimant to file a timely claim for all injuries. 1 In Southers, 51 Va. App. 118, 655 S.E.2d 34, however, this Court distinguished Shawley and determined that the statute of limitations did not bar all claims filed outside of the limitations period. Speci fically, this Court held that claimant’s timely claim for a left shoulder injury and her consistent complaints to her medical provider s of pain in he r left shoulder radiating into her neck gave [the employer] all th e notice it needed to meet the objectives that Shawley termed “compelling” reasons requiring the timely filing of a cl aim for all injured body parts.

1 The Supreme Court indicated that "[f]ailure to give such notice within [the limitations period] from an accident would seriously handica p the employer and the carrier in determining whether or not there was in fact an injury, the natu re and the extent thereof, and if related to the accident." 216 Va. at 446, 219 S.E.2d at 853.- 6 - Id. at 130, 655 S.E.2d at 40. Additionally, this Cour t indicated that the actu al injury causing the pain was not properly diagnosed for an extensiv e period of time and, th erefore, “[c]laimant should not be penalized because her physicians were not initiall y successful in identifying the source of her symptoms . . . .” Id. at 131, 655 S.E .2d at 40. Accordingly, this Court held that the

statute of limitations did not bar claimant’s a dditional claim for benef its covering the cervical spine facet joint. Id. at 133, 655 S.E.2d at 41. In the current matter, claimant’s initial filing indicated he su ffered broken ribs and lacerations from the February 14, 2011 compen sable accident. On June 12, 2012 and October 10, 2012, however, claimant filed additional claims fo r benefits citing injuries to his back and spine. Moreover, claimant included medical record s in his claims for benefits that cited lumbar and cervical pain and increased injections in his SI joints. Additionally, Dr. Squillante indicated that claimant’s major issue is “both of his SI jo ints” and “[a]s of late he’s required . . . large numbers of shots.” Despite suffering from SI joint pain since 2009, Dr. Squillante indicated that claimant has recently required an increasing numbe r of shots to ease the pain in his SI joints. Similar to this Court’s ruling in Southers, cl aimant consistently reported pain in his back and SI joints from 2009 through 2013. Despite the reoccurr ing SI joint pain, Dr. Squillante was unable to determine that claimant’s lower back pa in was caused by his SI joints until claimant’s SI joint pain increased, which required a large nu mber of shots. Considering these facts, the commission determined that “claimant’s symptoms did not change; his diagnosis did.” “Although, we are not bound by the comm ission’s legal analysis in th is or prior cases, we give great weight to the commission’s construction of the Act, and we defer to the commission’s factual findings if supported by credible evidence in the record.” Bay Concrete Constr. Co. v. Davis, 43 Va. App. 528, 538-39, 600 S.E.2d 144, 150 ( 2004) (citations omitted). Accordingly,

this Court holds that the commission did not err in determining that application of the statute of- 7 - limitations would be inconsistent with the “ human and beneficent purposes of the act.” Bradshaw, 170 Va. at 336, 196 S.E. at 686 (citations omitted). 2

IV. CONCLUSION

This Court holds that the commission did not err in its determination that the claim relating to SI joints was not barr ed by the statute of limitations de spite such claim not being filed within two years of the date of his accident. Accordingly, this Court affirms the rulings of the

commission.

Affirmed.

2 Employer additionally assert s in its second assignment of error that "the full commission erred in awarding the claimant benefits pursuant to the Act relative to his [SI joints]." Employer contends that the commi ssion erred because his claim was barred by the statute of limitations. After having determin ed that the commission did not err in finding claimant's claim for benefits timely, empl oyer's second assignment of error fails.