COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

MARIATOU HAIDARA DIALLO 

v. Record No. 1734-95-4 MEMORANDUM OPINION*

 PER CURIAM 

MARRIOTT CORPORATION APRIL 2, 1996 

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Mariatou H. Diallo, pro se, on brief). 

 (John K. Coleman; Susan L. Herilla; 

Slenker, Brandt, Jennings & Johnston, on 

brief), for appellee. 

 Mariatou H. Diallo (claimant) contends that the Workers' 

Compensation Commission erred in finding that the two-year 

statute of limitations contained in Code § 65.2-601 expired 

before she filed her September 19, 1994 claim. Specifically, she 

argues that the commission erred in finding that Code § 65.1-87.1 

(now Code § 65.2-602) did not toll the applicable two-year 

limitations period.1

 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 decision. Rule 

5A:27. 

 On January 27, 1990, claimant slipped and fell on a wet and 

 

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

designated for publication. 

 1Claimant raised twenty-four questions in her opening brief. 

 Most of these questions were not addressed to the commission. 

Accordingly, on appeal, we will not consider any issue not raised 

before the commission. Rule 5A:18. We will only consider the 

issues raised before the commission. 
 2 

 

greasy floor while working for Marriott Corporation (employer) as 

a waitress. She felt a sharp pain in her back. On January 31, 

1990, she sought medical treatment for low back pain from Dr. 

Stephen M. Levin. Dr. Levin advised her not to work until 

February 5, 1990.2

 On February 5, 1990, Dr. Levin reported that 

claimant's back was significantly improved and he released her to 

return to work without restrictions. Claimant saw Dr. Levin 

again on February 12, 1990. On February 26, 1990, Dr. Levin 

discharged claimant from his care. 

 Claimant returned to Dr. Levin on April 12, 1990. Her 

examination was normal and Dr. Levin advised her to see a 

gynecologist. Claimant never returned to Dr. Levin. After April 

12, 1990, claimant did not seek medical treatment again until 

four and one-half years later. On September 8, 1994, she was 

examined by Dr. Ronald G. Donelson, an orthopedic surgeon.3 

Although employer paid Dr. Levin's medical expenses, it did not 

pay any compensation or wages to claimant for any period of 

disability from January 27, 1990 through September 19, 1994, the 

date claimant filed her claim for benefits related to her back 

 2Although Dr. Levin advised claimant not to work during this 

five-day period, claimant testified that from January 27, 1990 

through the summer of 1991, she did not miss any time from work 

related to her back condition. Claimant testified that she 

stopped working for employer during the summer of 1991 due to 

back pain and her return to school. 

 3Claimant included medical reports in the Appendix which are 

not contained in the record. In rendering our decision, we did 

not consider any medical evidence not contained in the record. 
 3 

condition. Employer filed its First Report of Accident on 

November 7, 1994. 

 Code § 65.1-87.1 (now Code § 65.2-602), in effect at the 

time of claimant's September 27, 1990 accident, provided, in 

part, that the statute of limitations would be tolled if the 

employer failed to file a report of accident and paid 

compensation or wages during a period of disability related to a 

claimant's work accident.4 Claimant admitted she continued to 

work, without restriction, for employer from January 27, 1990 

through the summer of 1991. In addition, although employer paid 

a portion of claimant's medical expenses, no evidence proved that 

employer ever paid compensation or wages to claimant during any 

period of work incapacity related to her back condition. 

Voluntary payment of medical expenses in itself does not as a 

matter of law toll the statute of limitations or estop employer 

from raising the jurisdictional defense. Bowden v. Newport News 

Shipbuilding & Dry Dock Co., 11 Va. App. 683, 686-87, 401 S.E.2d 

884, 886 (1991). 

 Claimant's evidence failed to prove that employer paid her 

compensation or wages during a period of disability related to 

her work accident. Therefore, Code § 65.2-87.1 did not toll the 

statute of limitations. Accordingly, the commission did not err 

 

 4The commission correctly held that it could not 

retroactively apply the July 1, 1991 amendment of Code § 65.1-87 

to claimant's accident, which occurred before the amendment, 

because the amendment was substantive in nature. 
 4 

in ruling that employer's failure to file the first report of 

accident did not toll the statute of limitations. 

 Because this ruling disposes of this appeal, we need not 

address any remaining issues raised by claimant. For the reasons 

stated, we affirm the commission's decision. 

 Affirmed.