COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Annunziata and Clements 

Argued at Alexandria, Virginia 

FAIRFAX COUNTY SCHOOL BOARD 

 OPINION BY 

v. Record No. 2498-02-4 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 JULY 8, 2003 

JUDITH L. HUMPHREY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Michael N. Salveson (Hunton & Williams, on 

briefs), for appellant. 

 James J. Faughnan (Quagliano & Seeger, P.C., 

on brief), for appellee. 

 Fairfax County School Board (employer) contends the 

Workers' Compensation Commission (commission) erred in finding 

(1) that a Memorandum of Agreement that was later vacated 

properly constituted a timely filed Claim for Benefits and (2) 

that Judith L. Humphrey's (claimant) claim was not barred by 

Code § 65.2-701. Finding no error, we affirm the commission's 

decision. 

I. Facts 

 "On appeal, we view the evidence in the light most 

favorable to the claimant, who prevailed before the commission." 

Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 672, 508 S.E.2d 

335, 340 (1998) (citations omitted). The commission's factual 

findings are conclusive and binding on this Court when those 
findings are based on credible evidence. See James v. Capitol 

Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 

(1989); Code § 65.2-706. 

 Claimant, a music specialist, sustained a variety of 

injuries during her employment with the Fairfax County Public 

Schools. She claimed injuries on November 9, 1994, June 8, 

1995, September 14, 1995, January 23, 1997, February 13, 1998, 

March 24, 1998, May 14, 1999, October 19, 1999 and October 19, 

2001.1 The November 9, 1994 claim for benefits is the only 

matter before us in this appeal. 

 On November 9, 1994, claimant, while teaching a folk dance 

to third graders, twisted her left ankle and felt a pop in her 

back. She stumbled but did not fall. Claimant received 

extensive medical treatment from a variety of physicians, 

accupuncturists, chiropractors and psychotherapists from 

November 9, 1994 through the present. She had surgery on 

December 14, 1995, but it was unsuccessful. 

 Employer filed its Employer's First Report of Accident on 

March 29, 1995, and the claim was assigned a Virginia Workers' 

Compensation Commission (VWC) file number (174-01-44). The 

commission sent its standard notification letter or "blue 

 1

 The February 13, 1998 and May 14, 1999 claims were found 

compensable. The June 19, 2001 claim was denied because it did 

not arise out of and in the course of her employment. All of 

the remaining claims except the November 9, 1994 claim were 

denied as having been untimely filed. See Code § 65.2-601. 

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letter" on April 4, 1995. Employer offered claimant a 

Memorandum of Agreement form which she signed on January 18, 

1996 and an employer's representative signed on February 5, 

1996. He mailed the executed form to the commission, and it was 

received on February 9, 1996. 

 Before the entry of an award, employer wrote the commission 

and asked that the award not be entered. Notwithstanding 

employer's request, the commission entered the award on April 8, 

1996. Employer wrote the commission and asked that the award be 

vacated. A copy of that letter was mailed to claimant. The 

commission vacated the award on May 31, 1996 and stated: 

 On March 11, 1996, the carrier's 

representative who signed the Memorandum of 

Agreement advised the Commission that he had 

reopened his investigation to obtain further 

medical reports regarding possible 

pre-existing conditions and that he withdrew 

his agreement to the previously-submitted 

memorandum. Nevertheless, the Commission 

entered its award on April 8, 1996. 

 When either party withdraws its 

approval of a Memorandum of Agreement prior 

to the entry of the award, the award will 

not be entered and the case will be 

scheduled for a hearing. If, however, the 

request is made after the award has been 

entered, the request for review must be made 

within twenty days in order for the award to 

be vacated without the necessity of 

establishing fraud, mutual mistake, or 

imposition. In the present matter, the 

carrier's representative advised the 

Commission before the entry of the award 

that he withdrew the carrier's approval of 

the documents which had been submitted. In 

spite of this written information, the 

Commission entered the award. The employer 

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and carrier have now petitioned for review 

of that award in a timely manner. 

Therefore, the Commission VACATES the April 

8, 1996, Award of the Commission. 

 This matter is hereby removed from the 

Review Docket. 

(Internal citation omitted.) 

 Claimant agreed she received the opinion vacating the award 

on June 1, 1996. She appealed that decision to this Court but 

withdrew the appeal on August 19, 1996. By letter dated 

November 5, 1996, employer confirmed an earlier conversation 

with claimant's attorney that the claim of November 9, 1994 and 

several others "should be regarded as denied." 

 The deputy commissioner found that claimant, pursuant to 

Code § 65.2-601, failed to file a timely claim for benefits for 

the November 9, 1994 claim. The deputy commissioner found that 

claimant was on sufficient notice of a 

dispute concerning the November 9, 1994 

accident within two years of the accident 

date that the employer's conduct would not 

result in a finding of any detrimental 

reliance upon the earlier offer and filing 

of the memorandum of agreement or conduct 

such as would require the Commission to step 

in to do full justice. . . . The filing 

requirement "is satisfied only by filing the 

claim with the commission, not by filing it 

with the employer or anyone else. By giving 

information and filing reports with his 

employer, the employee did not satisfy the 

requirement that the claim be filed with the 

commission . . . ." 

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(Internal citations omitted.) Claimant appealed to the full 

commission. 

 The commission reversed the deputy commissioner. 

 Here, the parties submitted a written 

request that the Commission process an 

Award. The request included every detail 

for an "original claim" required by 

Commission Rule 1.1: The employer's and 

employee's addresses, the date of the 

accident ("11/9/94"), the nature of the 

injury ("Injury - Hip & Back"), and the 

benefits being sought ("Temporary Total" for 

the period beginning November 18, 1995). It 

was signed by the claimant and clearly 

requested that the Commission take action 

based on the facts as stated. The 

Commission thereafter took action and 

entered an Award of benefits. The Award was 

later vacated, but the Memorandum of 

Agreement was never withdrawn by the 

claimant or dismissed by the Commission. We 

find that this document constituted an 

original Claim for benefits and because it 

was filed February 9, 1996, was timely. 

From that decision, employer appeals. 

II. Statute of Limitations 

A. Mailing the Claim for Benefits 

 Employer first contends that the fully executed Memorandum 

of Agreement cannot be considered a "claim for benefits" because 

it was filed, i.e., mailed to the commission, by the employer 

rather than the claimant. This argument is without merit. 

 "The right to compensation under this title shall be 

forever barred, unless a claim be filed with the Commission 

within two years after the accident. . . ." Code 65.2-601. 

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 "An employee's original claim for benefits shall be filed 

within the applicable statutes of limitation. . . ." Commission 

Rule 1.1. 

 Claimant, at employer's request, executed the Memorandum of 

Agreement for filing and returned it to employer who was to take 

the final step of mailing it to the commission. Employer's 

reliance on Cheski v. Arlington County, 16 Va. App. 936, 434 

S.E.2d 353 (1993), as precluding this process is misplaced. In 

Cheski, we held that "[b]ecause the evidence fails to establish 

. . . that [claimant] or anyone on her behalf filed her claim" 

she was time-barred. Id. at 937, 434 S.E.2d at 354. In that 

case, the claimant provided information only to the employer, 

rather than information the employer was to forward to the 

commission. The employee never timely invoked the commission's 

jurisdiction. Additionally, the letters ultimately provided by 

the employer to the commission failed to contain the information 

necessary to state a claim. See Commission Rule 1.1. The facts 

in Cheski are distinguishable from those presently before us. 

 Here, we find the analysis in Chalkley v. Nolde Brothers, 

Inc., 186 Va. 900, 45 S.E.2d 297 (1947), more analogous. In 

Chalkley, the Supreme Court held that a letter from employer's 

counsel to the commission requesting a determination of 

employer's rights and that the employee be made a party to 

proceedings contained enough information to be considered a 

timely filed claim. The Supreme Court noted that "[a]ll parties 

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knew the claim was pending . . . . We must construe the Act 

liberally to accomplish its remedial purpose." Id. at 912, 45 

S.E.2d at 302. "The purpose of filing with the commission is to 

provide all parties with notice of the potential issues in a 

case." Johnson v. Paul Johnson Plastering, 37 Va. App. 716, 

723, 561 S.E.2d 40, 44 (2002). Clearly, all parties in this 

case knew claimant sought benefits, knew the issues and were 

aware that the November 9, 1994 claim was contested. No 

statutory language delineates who must deliver the claim for 

benefits to the commission or how it should be filed. We hold, 

on these facts, that it is legally insignificant that the 

employer mailed the signed Memorandum of Agreement to the 

commission.2

B. Memorandum of Agreement as Claim for Benefits 

 Employer next argues that, when it revoked its consent to 

the terms of the Memorandum of Agreement, the agreement became a 

nullity and void. Employer relies on Code § 65.2-701 which 

provides "[i]f approved, the agreement shall be binding, and an 

award of compensation entered upon such agreement shall be for 

 2

 We also note that Code § 65.2-701(B) provides: 

An employer or insurance carrier which fails 

to file a memorandum of such agreement with 

the Commission within fourteen calendar days 

of the date of its complete written 

execution as indicated thereon may be 

subject to a fine not to exceed $1,000 and 

to any other appropriate sanctions of the 

Commission. 

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all purposes enforceable as provided by § 65.2-710. If not 

approved, the same agreement shall be void." (Emphasis added.) 

Employer contends that, because the award was vacated at the 

employer's request, the Memorandum of Agreement was "not 

approved," within the meaning of Code § 65.2-701 and, 

consequently, the memorandum was "void." It reasons that any 

content in the agreement that might arguably constitute a claim 

was likewise vacated and void. We disagree. 

 "The commission's construction of the Act is entitled to 

great weight on appeal." Cross v. Newport News Shipbuilding and 

Dry Dock Co., 21 Va. App. 530, 533, 465 S.E.2d 598, 599 (1996) 

(citing City of Waynesboro v. Harter, 1 Va. App. 265, 269, 337 

S.E.2d 901, 903 (1985)). "While we generally give great weight 

and deference, on appeal, to the commission's construction of 

the Workers' Compensation Act, 'we are not bound by the 

commission's legal analysis in this or prior cases.'" Peacock 

v. Browning Ferris, Inc., 38 Va. App. 241, 248, 563 S.E.2d 368, 

372 (2002) (quoting U.S. Air, Inc. v. Joyce, 27 Va. App. 184, 

189 n.1, 497 S.E.2d 904, 906 n.1 (1998)). 

 Unlike questions of fact, however, we review questions of 

law de novo. Sinclair v. Shelter Constr. Corp., 23 Va. App. 

154, 156-57, 474 S.E.2d 856, 857-58 (1996) (citing Harter, 1 

Va. App. at 269, 337 S.E.2d at 903). We construe the Workers' 

Compensation Act liberally for the benefit of employees and give 

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great weight to the commission's construction of the Act. See

Harter, 1 Va. App. at 269, 337 S.E.2d at 903. 

 It is well settled that a claimant 

under the [workers'] compensation law must 

show that his original claim was timely 

filed, for such filing within the statutory 

period is jurisdictional. . . . The 

language of § [65.2-601], relating to the 

filing of an original claim, is clear. It 

deals with the right to compensation under 

the [Workers' Compensation Act], and the 

same statute which gives the right provides 

that the right shall be forever barred 

unless exercised within [two] years. 

Binswanger Glass Co. v. Wallace, 214 Va. 70, 73, 197 S.E.2d 191, 

193 (1973). 

"The basic nature of the notice required by 

[the Workers' Compensation Act] and the 

necessity for an applicable jurisdictional 

limitation are apparent. Such notice is 

often the first knowledge that an employer 

and his insurance carrier have of an 

accident and of their potential liability. 

It is this notice that sets in motion the 

machinery to determine whether or not an 

employee has in fact been injured, the 

nature of the injury, whether it arose out 

of and in the course of his employment, 

whether permanent or temporary, and whether 

compensable or not. This is the notice 

which activates the right of the employee to 

compensation and which invokes the 

jurisdiction of the . . . Commission." 

Massey Builders Supply Corp. v. Colgan, 36 Va. App. 496, 503, 

553 S.E.2d 146, 150 (2001) (quoting Binswanger, 214 Va. at 73, 

197 S.E.2d at 194). 

 "Despite requiring the timely filing of a claim, the Act 

does not give a definition of claim." Garcia v. Mantech Int'l 

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Corp., 2 Va. App. 749, 752, 347 S.E.2d 548, 550 (1986). "As the 

record in this case reveals, the commission disseminates a 

standardized claim form on which an injured employee may report 

an industrial injury, but neither the Act nor the commission's 

rules require that a claim must be filed on that or any other 

form." Massey Builders, 36 Va. App. at 503, 553 S.E.2d at 150 

(internal citations omitted). 

 Commission Rule 1.1(A) provides the requirements for a 

Claim for Benefits. 

An original claim for benefits shall be in 

writing, signed and should set forth: 

1. Employee's name and address; 

2. Employer's name and address; 

3. Date of accident or date of 

communication of occupational disease; 

4. Nature of injury or occupational 

disease; 

5. Benefits sought: temporary total, 

temporary partial, permanent total, 

permanent partial or medical benefits; 

6. Periods of disability, if appropriate. 

"The word 'shall' is primarily mandatory, whereas the word 

'should' ordinarily implies no more than expediency and is 

directory only." Brushy Ridge Coal Co. v. Blevins, 6 Va. App. 

73, 78, 367 S.E.2d 204, 206 (1998). 

 Here, the facts are not in dispute. Employer offered 

claimant a Memorandum of Agreement, which both employer and 

claimant signed. Prior to the entry of the award but after the 

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commission received the memorandum, employer requested the 

commission to "hold off on entering any award on this file at 

this time," in order to further investigate the nature of 

employee's injuries. The commission entered the award, but 

within the appropriate time period, employer submitted its 

Request For Review of that award stating: "Upon further 

reflection and examination of the available medical records, the 

employer is unable to agree to the entry of an Award accepting 

the claimant's herniated lumbar disc, or the surgery and lost 

time related thereto, as compensable under VWC File No. 

174-01-44." Employer then asks "For the reasons set forth 

above, the employer respectfully requests that the April 8, 1996 

Award be vacated." The commission then vacated the award and 

removed the case from the review docket. 

 Employer argues that the agreement including the 

information it contained became void when the commission vacated 

the award. See Code 65.2-701. The commission, however, found 

that, although the agreement to accept the claim as compensable 

and pay the appropriate benefits was vacated, the underlying 

information constituted a claim for benefits that remained 

operative and was properly filed with the commission. We agree. 

 Neither of employer's letters to the commission contested 

that an accident occurred on November 9, 1994 or that claimant 

was injured as a result of that accident. Employer contested 

only the entry of an award based on the possibility of 

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pre-existing conditions, unrelated accidents, and possible 

non-compensable injuries, and asked only to be relieved of its 

legal obligation to pay compensation pursuant to the award 

entered. It, accordingly, asked the commission to vacate the 

award. Once vacated, the award and the underlying agreement no 

longer obligated the employer to accept employee's claim as 

compensable or make any additional compensable payments. The 

information contained in the memorandum describing the parties, 

the claimant's injuries and her request for benefits was 

unaffected by the withdrawal of the agreement to pay. It 

contained the correct employer name and address, employee name 

and address, date of loss, nature of injury, benefits sought, 

and periods of disability. See Commission Rule 1.1. Credible 

evidence supports the commission's finding that the information 

provided was sufficient to constitute a timely filed Claim for 

Benefits. 

 For the foregoing reasons, the decision of the commission 

is affirmed. 

 Affirmed.

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