COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

BRENDA W. GROSS 

 MEMORANDUM OPINION*

v. Record No. 1081-00-2 PER CURIAM 

 OCTOBER 10, 2000 

WYETH-AYERST LABORATORIES AND 

 CIGNA INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Brenda W. Gross, pro se, on brief). 

 (Patricia C. Arrighi; Taylor & Walker, P.C., 

on brief), for appellees. 

 Brenda W. Gross contends that the Workers' Compensation 

Commission erred in finding that (1) her claim alleging a neck 

injury arising out of an October 8, 1996 injury by accident was 

barred by the applicable statute of limitations; and (2) her 

neck symptoms were not causally related to her compensable 

October 8, 1996 injury by accident. Although her brief contains 

six other questions presented, the first two issues were the 

only issues considered by the commission in its review opinion. 

Accordingly, those are the only issues we will address on 

appeal. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication. 
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 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. See Rule 5A:27. 

 "The right 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." Code 

§ 65.2-601. 

[I]t is the intent of Code § 65.1-87 that 

within [the time prescribed by the section,] 

an employee must assert against his employer 

any claim that he might have for any injury 

growing out of the accident. . . . Failure 

to give such notice within [the statutorily 

prescribed period] would seriously handicap 

the employer . . . in determining whether or 

not there was in fact an injury, the nature 

and extent thereof, and if related to the 

accident. The reason for the limitation 

. . . is a compelling one. 

Shawley v. Shea-Ball Constr. Co., 216 Va. 442, 446, 219 S.E.2d 

849, 853 (1975) (construing former Code § 65.1-87). 

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

to the prevailing party below. See R.G. Moore Bldg. Corp. v. 

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 

Factual findings made by the commission will be upheld on appeal 

if supported by credible evidence. See James v. Capitol Steel 

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). 

 The commission denied Gross's claim for a neck injury on 

the grounds that it was barred by the applicable statute of 
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limitations and that employer was not estopped from raising the 

defense. In so ruling, the commission found as follows: 

[Gross] initially claimed injuries to her 

left elbow and shoulder. On December 10, 

1996, she signed [a Memorandum of Agreement] 

reflecting injuries to her left arm, hand, 

elbow, and shoulder. Accordingly, the 

Commission entered an award for those 

injuries. . . . [T]here has not been an 

award for a neck injury. [Gross] did file a 

Claim for Benefits on September 10, 1998, 

wherein a neck injury was alleged in an 

attached letter. That claim was heard on 

November 12, 1998, but the alleged neck 

injury was not pursued. Deputy Commissioner 

Mercer's December 16, 1998, Opinion did not 

address the alleged neck injury. The 

November 12, 1998, Hearing and the December 

16, 1998, Opinion resolved the September 10, 

1998, claim since no issues alleged in that 

claim were reserved for a later 

determination. The Claim for Benefits for 

the neck injury, which is the subject of 

this proceeding, was filed on February 9, 

1999. The injury by accident occurred in 

October 1996. This claim is untimely as it 

relates to an alleged neck injury, and the 

Commission lacks subject matter 

jurisdiction. . . . 

 Contrary to [Gross's] argument, her 

September 10, 1998, Claim for Benefits did 

not preserve a neck injury within the 

statute of limitations. This claim sought 

temporary total disability benefits from 

August 11 to August 13, 1998. At the 

November 12, 1998, Hearing, the parties 

agreed that the sole issue concerned alleged 

disability. There was no mention of a neck 

condition, nor did [Gross] present evidence 

of a neck injury. . . . While the December 

16, 1998, Opinion did not make any finding 

regarding a neck condition, [Gross] did not 

appeal this decision. Also, the alleged 

neck claim was not reserved or continued. 

The Commission does not try cases piecemeal 
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and did not defer the issue of the neck 

condition to a later Hearing. The effect is 

that [Gross] did not pursue a claim for an 

alleged neck injury before February 9, 1999. 

[T]he record does not reflect that the 

doctrine of imposition should estop the 

employer from alleging the statute of 

limitations defense. [Gross] had not shown 

by clear, precise, and unequivocal evidence 

that she detrimentally relied upon the 

employer's actions and statements to refrain 

from filing a claim. . . . [E]mployer 

timely sent her [a Memorandum of Agreement], 

Supplemental [Memorandum of Agreement], and 

an Agreed Statement of Fact; it filed all 

necessary reports; and it paid compensation 

and medical benefits. This evidence does 

not indicate that the employer acted with 

fraudulent intent or concealed a material 

fact. Although the insurance adjuster 

prepared the [Memorandum of Agreement], 

[Gross] voluntarily read and signed it. 

 The commission's factual findings are supported by credible 

evidence in the record. The only injuries included in the 

Memorandum of Agreement filed on June 6, 1997 were to Gross's 

left arm, left hand, left elbow, and left shoulder. Although 

Gross mentioned a neck injury in her September 8, 1998 letter 

attached to her September 10, 1998 Claim for Benefits, she did 

not pursue a claim for a neck injury at the November 12, 1998 

hearing. Moreover, the December 16, 1998 opinion did not 

address the issue whether Gross had sustained a neck injury as a 

result of her compensable accident. Gross did not appeal that 

decision. Thus, Gross's Claim for Benefits for a neck injury 

filed on February 9, 1999, more than two years after her October 
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8, 1996 compensable accident, was untimely. Furthermore, we 

agree with the commission that the record failed to reveal that 

employer took any actions that would have estopped it from 

raising the statute of limitations defense. 

 In Shawley, the Supreme Court held that the commission 

lacked subject matter jurisdiction to award benefits for injury 

to the employee's right ankle and back, where the only injuries 

for which the employee filed a timely claim were to his left 

ankle and right hip. See 216 Va. at 443-44, 446-47, 219 S.E.2d 

at 851-53. The Court has also held that "[j]urisdiction 

[ordinarily] . . . cannot be conferred on the Commission by 

consent" and that it comes into being "when 'a claim [is] filed' 

within two years after the accident." Stuart Circle Hosp. v. 

Alderson, 223 Va. 205, 208-09, 288 S.E.2d 445, 447 (1982). 

Accordingly, the commission lacked subject matter jurisdiction 

to award benefits for a neck injury. 

 Because our ruling on the statute of limitations issue 

disposes of this appeal, we need not address the causation 

issue. For these reasons, we affirm the commission's decision. 

Affirmed.