COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Overton 

Argued at Norfolk, Virginia 

GWALTNEY OF SMITHFIELD, LTD. AND 

 LUMBERMENS MUTUAL CASUALTY COMPANY 

 MEMORANDUM OPINION* BY 

v. Record No. 1632-96-1 JUDGE RICHARD S. BRAY 

 FEBRUARY 11, 1997 

ANDREA THOMASINA TYNES 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Timothy P. Murphy (William W. Nexsen; William 

W. Tunner; Stackhouse, Smith & Nexsen, on 

brief), for appellants. 

 Alan P. Owens for appellee. 

 Andrea Thomasina Tynes (claimant) received an award of 

benefits for a neck injury suffered on January 6, 1993. Gwaltney 

of Smithfield, Ltd. and Lumbermens Mutual Casualty Company 

(collectively, "employer") appeal, contending that the Virginia 

Workers' Compensation Commission (commission) erroneously 

concluded that the disputed injury was properly reported within 

the limitations period prescribed by Code § 65.2-601. We concur 

with the commission that the injury was a part of the original 

claim and compensable under the attendant award. 

 The parties are fully conversant with the record, and this 

memorandum opinion recites only those facts necessary to a 

disposition of the appeal. Under familiar principles, we 

construe the evidence in the light most favorable to the party 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

prevailing below, claimant in this instance. See Crisp v. 

Brown's Tysons Corner Dodge, Inc., 1 Va. App. 503, 504, 339 

S.E.2d 916, 916 (1986). If supported by credible evidence, the 

commission's findings of fact are binding and conclusive on 

appeal. See James v. Capitol Steel Constr. Co., 8 Va. App. 512, 

515, 382 S.E.2d 487, 488 (1989); see Code § 65.2-706. 

 Code § 65.2-601 provides that "[t]he right to compensation 

under this title shall be forever barred, unless a claim be filed 

with the Commission within two years after the accident." The 

original claim in this instance described an injury to claimant's 

right shoulder which occurred on January 6, 1993, without 

reference to complaints of the neck or cervical spine. The 

instant application for benefits related to claimant's neck was 

first filed with the commission on June 5, 1995. Employer, 

therefore, contends that Code § 65.2-601 and the related holding 

in Shawley v. Shea-Ball Construction Co., 216 Va. 442, 219 S.E.2d 

849 (1975), preclude an award for this injury. 

 In Shawley, the Court applied Code § 65.1-87 (now Code 

§ 65.2-601) to conclude that a failure to specify all injuries in 

a claim or claims filed within the statutory period is 

jurisdictional, preventing the commission from entertaining a 

later claim. See 216 Va. at 445-46, 219 S.E.2d at 852-53. The 

Court noted that 

 notwithstanding myriad examinations by 

numerous doctors and surgeons, and 

innumerable medical reports, neither the 

employer nor the carrier had any knowledge

therefrom for over [the statutory period] 
 3 

that Shawley's back or right ankle was 

involved, or that any claim for such injuries 

would ever be made against them. Had such 

injuries been caused by the [same accident 

which caused the right hip and left ankle 

injuries], and had claim been made therefor, 

[the employer and carrier] could have made 

proper investigation of the claim to 

determine its validity and the treatment 

necessary to effect a cure of the claimant 

and to minimize the employer's liability. 

Id. at 446-47, 219 S.E.2d at 853 (emphasis added). 

 Here, claimant reported neck pain to Dr. Persons, his 

treating physician, on June 21, 1993, and Persons notified 

employer accordingly in correspondence dated August 12, 1993, 

received by employer on August 16, 1993, and filed with the 

commission on December 7, 1993, all within the statutory period. 

 Claimant's physician opined that claimant's continuing pain was 

caused, in part, by a cervical disc injury which coincided with 

the initially reported shoulder injury. Dr. Magness recommended 

corrective cervical surgery "in hopes of improving his shoulder

pain." The commission, therefore, concluded the claimant was 

simply "seeking treatment for the exact same injury which [was] 

the subject of his compensable claim," a factual finding clearly 

supported by credible evidence. The rationale of Shawley is 

inapplicable in such circumstances. 

 Thus, finding no error in the award, we affirm the 

commission. 

 Affirmed.