COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Fitzpatrick and Annunziata 

Argued at Alexandria, Virginia 

J&F SERVICES, INC. and 

 HANOVER INSURANCE COMPANY 

 MEMORANDUM OPINION* BY 

v. Record No. 1202-96-4 JUDGE ROSEMARIE ANNUNZIATA 

 OCTOBER 29, 1996 

JOSE V. VILLATORO 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 William H. Schladt (Ward & Klein, on brief), 

for appellants. 

 Peter M. Sweeny (Wesley G. Marshall; Peter M. 

Sweeny & Associates, on brief), for appellee. 

 Claimant, Jose V. Villatoro, filed a claim for benefits 

seeking compensation for an injury by accident arising out of and 

in the course of his employment with employer, J&F Services, Inc. 

 The deputy commissioner applied the statute of limitations to 

bar compensation. The full commission reversed and remanded the 

case, directing the deputy commissioner to render a decision on 

the merits. The deputy commissioner entered an award in 

claimant's behalf, which, upon claimant's request for review, the 

full commission modified. Employer appeals, contending (1) the 

commission erred by not applying the statute of limitations as a 

bar to compensation; (2) the commission erred in finding claimant 

suffered a temporary total disability subsequent to May 25, 1992; 

and (3) the commission erred in awarding temporary total 

 

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

designated for publication. 
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disability benefits after June 30, 1992. With the exception of 

the third issue raised, we affirm. 

 I. 

 Claimant suffered a compensable injury by accident while 

working for employer on April 16, 1992. On April 22, 1992, 

claimant, through his first attorney, filed a claim for benefits 

in the Virginia Workers' Compensation Commission. On May 5, 

1992, claimant's counsel requested the matter be set for a 

hearing. By letter dated June 19, 1992, the commission stated 

that the case would not be placed on the hearing docket until the 

medical evidence supporting the claim was sent to the commission. 

 On July 18, 1992, the Virginia commission wrote claimant's first 

lawyer and advised him that the medical evidence supporting 

claimant's claim had to be sent immediately to the commission to 

avoid dismissal of the claim. 

 In the interim, on July 6, 1992, employer agreed to 

compensate claimant for total disability during the period April 

17, 1992 to May 25, 1992. However, claimant refused to execute 

an Agreed Statement of Facts, and none was filed with the 

commission. 

 Meanwhile, by June 2, 1992, claimant had filed a claim for 

benefits in the Maryland Workers' Compensation Commission after 

having hired a new lawyer. The Virginia commission received 

notice of this action on July 7, 1992. On July 8, 1992, 

employer's carrier wrote claimant's new lawyer and stated it 
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would compensate claimant for his Virginia claim through May 25, 

1992. On July 15, 1992, claimant's counsel responded, stating 

that claimant had "opt[ed] for the State of Maryland Workers' 

Compensation benefits." 

 On August 28, 1992, the Virginia commission wrote claimant, 

requesting him to confirm that he was represented by new counsel 

and that he would be pursuing a claim in Maryland so the 

commission could dispose of the case. On September 10, 1992, 

claimant's counsel responded, advising the Virginia commission 

that he represented claimant in the Maryland case, which claimant 

was then pursuing. 

 The Virginia commission never entered an order dismissing 

claimant's Virginia claim. Following a hearing on April 11, 

1994, the Maryland Workers' Compensation Commission denied 

claimant's claim for lack of jurisdiction. 

 Subsequently, claimant, through a third lawyer, filed a 

document entitled "Workers' Compensation Claim and Agreement to 

Retain Counsel" in the Virginia commission and requested the 

commission refer the claim to the hearing docket based on 

claimant's initial application for hearing. Following a hearing 

on February 24, 1995, the deputy commissioner invoked the statute 

of limitations to bar compensation, having found claimant made a 

conscious decision to withdraw his Virginia claim. The full 

commission reversed. It found claimant never intended to 

withdraw his Virginia claim and remanded the matter for a 
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determination on the merits. 

 With respect to his claim for benefits, claimant responded 

to employer's interrogatories on the day before the February 24 

hearing. In his response, claimant stated that he sought 

temporary total disability benefits from April 17, 1992 through 

June 30, 1993. At the February 24 hearing, the deputy 

commissioner stated that claimant sought temporary total 

disability benefits only for the periods April 17, 1992 to June 

30, 1992, and November 1, 1993 to July 31, 1994, as "set out in a 

letter submitted today by claimant's counsel." The periods 

described comport with the periods claimant submitted to the 

deputy commissioner in a Statement of Benefits Claimed. The 

deputy commissioner's June 13, 1995 opinion also states that 

claimant sought benefits only until June 30, 1992. Upon remand 

from the commission's ruling that the statute of limitations did 

not bar the claim, another hearing was held before the deputy 

commissioner. At no point during that hearing was the 

termination of the initial time period for which claimant sought 

benefits modified from June 30, 1992; the deputy commissioner's 

ruling on the merits was likewise limited to that time period. 

 There is no dispute that claimant suffered a compensable 

accident which rendered him totally disabled from April 17, 1992 

through May 25, 1992. Claimant's treating physician, Dr. Norman 

J. Cowan, approved a light duty job description for claimant 

provided by employer; the job was to commence May 26, 1992. 
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Claimant testified that he received notice of the light duty 

opportunity, but he stated nobody was there when he appeared for 

work on the twenty-sixth. Claimant acknowledged that he received 

further notice of light duty work within two weeks, but he stated 

when he responded, he was told he could not work. 

 Meanwhile, claimant was treated by Dr. Joseph Y. Lin, on May 

29, 1992, at which time Dr. Lin directed claimant not to work for 

two weeks. Dr. Lin never released claimant to return to work at 

any level. Claimant was also referred to and treated by Dr. 

Michael April, who directed claimant not to work from July 20, 

1992 to August 20, 1992. Although Dr. April noted as late as 

July 20, 1993 that claimant was not ready to return to work, on 

April 15, 1993, Dr. Cowan approved another light duty job 

description that employer provided for claimant. 

 The deputy commissioner found claimant's testimony 

concerning his reasons for not accepting light duty employment in 

May 1992 incredible and that claimant had unjustifiably refused 

selective employment. However, based on the medical records of 

Drs. Lin and April which demonstrated that claimant was totally 

disabled beginning May 29, 1992, the deputy commissioner awarded 

claimant temporary total disability benefits for the period April 

17 to May 25 and again from May 29 to June 30, 1992. The deputy 

commissioner terminated the award on June 30 because claimant had 

not sought benefits beyond that date. 

 Claimant sought review, requesting, inter alia that the 
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commission not terminate claimant's recovery as of June 30, 1992. 

 The commission found that although Dr. Cowan had released 

claimant to return to light duty in May 1992, the records of both 

Drs. Lin and April established a continuing disability through 

the three-day period from May 26 to May 28. The commission 

further found that claimant was available for light duty 

employment in April 1993, which he unjustifiably refused. 

Without addressing the June 30, 1992 limitation imposed by the 

deputy commissioner, the full commission awarded claimant 

temporary total disability benefits for the period April 17, 1992 

to April 13, 1993. 

 II. 

 On appeal, employer contends (1) the commission erred by not 

applying the statute of limitations as a bar to compensation; (2) 

the commission erred in finding claimant suffered a temporary 

total disability subsequent to May 25, 1992; and (3) the 

commission erred in awarding temporary total disability benefits 

after June 30, 1992. 

 A. 

 Assuming without deciding that employer's statute of 

limitations argument is not procedurally barred, we find that the 

argument fails. The right to compensation under the Virginia 

Workers' Compensation Act is forever barred "unless a claim be 

filed with the commission within two years after the accident." 

Code § 65.2-601. There is no dispute that claimant filed a claim 
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for benefits in May 1992, well within the prescribed period. The 

issue then is whether claimant's actions subsequent to the filing 

of his claim amount to a withdrawal of the claim. 

 Initially, we find no rule or authority which requires a 

claimant to act within a certain time after the filing of a claim 

to avoid having the claim dismissed. Rule 1.3 of the Rules of 

the Workers' Compensation Commission states, "[i]f supporting 

evidence is not filed within 90 days after an employee's claim is 

filed, it may be dismissed upon motion of the employer after 

notice by the Commission to the parties." Here, employer made no 

such motion. The record contains no indication that the 

commission ever dismissed the claim. Indeed, absent a motion by 

employer, the commission had no authority to do so. Thus, we 

conclude, claimant's inaction with respect to his Virginia claim 

is not tantamount to a withdrawal. 

 "[T]he commission cannot hold that a claimant has withdrawn 

a `claim' absent a clear showing that the claim has been 

withdrawn." Keenan v. Westinghouse Elevator Co., 10 Va. App. 

232, 235, 391 S.E.2d 342, 344 (1990). In Keenan, the claimant 

filed a claim for benefits in February 1987, alleging an injury 

by accident in May 1986. Id. at 233-34, 391 S.E.2d at 343. In 

December 1987, the claimant filed an Application for Hearing, 

which he subsequently withdrew in March 1988. Id. at 234, 391 

S.E.2d at 343. In August 1988, claimant filed another 

Application for Hearing; however, the commission ruled that 
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claimant's withdrawal of his initial Application for Hearing was 

effectively a withdrawal of his claim for benefits. Id. Noting 

the distinction between a claim for benefits and an Application 

for Hearing, this Court reversed the commission, ruling there had 

been no clear showing that the claimant had intended to withdraw 

his claim. Id. at 235-36, 391 S.E.2d at 344. 

 The commission ruled that claimant had not withdrawn his 

claim, and we find no basis to reverse that determination. The 

initial claim was never placed on the hearing docket because 

claimant failed to file his medical records. When pressed for 

his medical records, claimant responded that he was pursuing a 

claim in Maryland at that time. We agree with the commission 

that nothing in the correspondence suggests claimant intended to 

withdraw his Virginia claim to pursue his claim in Maryland. 

Although the commission stated its intention to "dispose" of the 

matter and advised claimant to forward his medical records to 

avoid "dismissal," we find no authority for the commission to 

dispose of the matter absent a motion by employer, and, in any 

event, the commission made no such disposition. Furthermore, the 

commission's November 1994 correspondence, which sought a 

response to its August 1992 letter inquiring about a disposition 

of the matter, demonstrates that the commission had not disposed 

of the claim. Also, contrary to employer's argument, we do not 

find claimant's refusal to sign the Agreed Statement of Facts 

evidence that he intended to not pursue a claim in Virginia. At 
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most, such an act is evidence that claimant simply did not agree 

with the statement. 

 In short, we find no clear showing that claimant withdrew 

his claim within the meaning of Keenan. Accordingly, we find the 

claim is not time barred. 

 B. 

 Employer next contends the commission erred in finding 

claimant suffered temporary total disability subsequent to May 

25, 1992. Dr. Cowan released claimant to return to a light duty 

job scheduled to begin May 26, 1992. By May 29, 1992, however, 

Dr. Lin directed claimant not to return to work. Claimant was 

not released to return to work again until April 1993. Based on 

the medical records, both the deputy commissioner and the full 

commission found claimant was totally disabled until May 26 and 

subsequent to May 28. Based on Dr. Cowan's release, the deputy 

commissioner found claimant was not totally disabled during the 

three-day period between May 26 and May 28. Based on Dr. Lin's 

records, the full commission found claimant's total disability 

continued through the three-day period. Employer argues Dr. 

Cowan's release is evidence that claimant was not totally 

disabled as of May 26 and contradicts the records of Drs. Lin and 

April which suggest he was. The commission's resolution of this 

apparent conflict in the medical evidence binds this Court on 

review if it is supported by credible evidence. See, e.g., City 

of Norfolk v. Lillard, 15 Va. App. 424, 429, 424 S.E.2d 243, 246 
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(1992). We do not find the records of Drs. Lin and April 

incredible and, accordingly, affirm the commission's finding. 

 C. 

 Finally, employer argues that the commission erred in 

awarding temporary total disability benefits after June 30, 1992. 

 Although formal pleading is not required in matters before the 

commission, see Keenan, 10 Va. App. at 233, 391 S.E.2d at 343, 

due process requires that the employer be fully apprised of the 

claim being presented, see Sergio's Pizza v. Soncini, 1 Va. App. 

370, 375-76, 339 S.E.2d 204, 207 (1986). 

 Claimant responded to employer's interrogatories, stating 

that he sought temporary total disability benefits from April 17, 

1992 through June 30, 1993. However, at the hearing on the 

following day, claimant made clear his intention to seek benefits 

for the periods from April 17, 1992 to June 30, 1992, and 

November 1, 1993 to July 31, 1994. Upon this statement, the 

deputy commissioner terminated the award as of June 30, 1992. On 

review to the full commission, claimant requested his benefits be 

extended beyond June 30, 1992. Without taking additional 

evidence, and without addressing the issue, the commission 

extended claimant's benefits beyond June 30, 1992. The 

commission terminated benefits in April 1993, finding claimant 

had been released to light duty. 

 We find that, in extending claimant's benefits beyond June 

30, 1992, the commission deprived employer of the opportunity to 
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defend against the claim for benefits during the period June 30, 

1992 and April 13, 1993. Employer raised the defense of 

claimant's release to return to work in April 1993 before the 

deputy commissioner. However, contrary to claimant's argument, 

we do not find that this establishes employer suffered no 

prejudice. Employer presented evidence of the April 1993 release 

to defend against claimant's claim for benefits during the period 

November 1993 to July 1994, not as rebuttal to evidence of 

claimant's condition during the period June 1992 to April 1993. 

Accordingly, we reverse the commission's award of benefits during 

the period June 30, 1992 to April 13, 1993 and remand the case to 

allow both parties to present evidence on the issue whether 

claimant was totally disabled during that period. See Soncini, 1 

Va. App. at 377, 339 S.E.2d at 208. 

Affirmed in part,

reversed in part,

and remanded.