COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Bray 

Argued at Richmond, Virginia 

LYNCHBURG FOUNDRY COMPANY AND 

 ARGONAUT INSURANCY COMPANY 

 OPINION BY 

v. Record No. 1748-95-3 JUDGE RICHARD S. BRAY 

 APRIL 16, 1996 

SILAS E. McDANIEL 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 

 J. Gorman Rosenberger, Jr. (Wilson, Garbee & 

Rosenberger, on briefs), for appellants. 

 Ronald D. Henderson (Pendleton, Martin, 

Henderson & Garrett, P.C., on brief), for 

appellee. 

 Silas E. McDaniel (claimant) was awarded permanent partial 

disability benefits by the Workers' Compensation Commission 

(commission) pursuant to Code § 65.2-503. Lynchburg Foundry 

Company and its insurer (employer) appeal, arguing that the claim 

was barred by the limitations period prescribed by Code 

§ 65.2-601. We disagree and affirm the commission. 

 The facts are uncontroverted. On December 4, 1991, claimant 

accidentally injured his left foot incidental to employment, and 

his counsel lodged a "letter claim" with the commission on April 

2, 1992. This correspondence noted counsel's representation of 

claimant with respect "to his workmen's compensation claim 

arising from [the subject] injury" and requested "a hearing . . . 

in reference to the carrier's failure to pay medical mileage and 

prescriptions." The commission acknowledged receipt of 
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claimant's "application" and notified employer of the pending 

claim. In response, employer challenged claimant's entitlement 

to "medical mileage" but assured the commission that employer had 

provided claimant with prescription drugs necessitated by the 

accident. 

 The claim was thereafter placed "in suspense" by the 

commission, awaiting further documentation from claimant. By 

letter dated August 7, 1992, claimant advised the commission that 

"reimbursement . . . for a pair of boots," was the "only unpaid 

item at [that] time" and, on November 4, 1992, requested a 

hearing relative to that issue. However, following subsequent 

verification of payment for the boots by employer, the commission 

declined to schedule a hearing, without objection from claimant. 

 The claim remained dormant until claimant's correspondence 

to employer, dated February 4, 1994, with a copy to the 

commission, advised employer that claimant had suffered a "10% 

permanent partial disability to left foot as a result of the 

injury" and requested employer to "go ahead and submit the 

appropriate paperwork to us . . . for [claimant's] signature." 

On December 2, 1994, claimant's counsel wrote the commission 

seeking a hearing to resolve "this matter." Relying upon the 

two-year limitation period of Code § 65.2-601, employer countered 

that the disability claim was time-barred. The commission, 

however, disagreed, concluding that the claim was protected by 

the extended period prescribed by Code § 65.2-708(B), and awarded 
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claimant disability compensation. 

 Code § 65.2-601 provides that "compensation . . . shall be 

forever barred, unless a claim [is] filed with the Commission 

within two years after the accident." During this period, the 

employee must "assert against his employer any claim that he 

might have for any injury growing out of the accident." Shawley 

v. Shea-Ball Constr. Co., 216 Va. 442, 446, 219 S.E.2d 849, 853 

(1975) (emphasis added); Mayberry v. Alcoa Bldg. Prods., 18 Va. 

App. 18, 20, 441 S.E.2d 349, 350 (1994). Code § 65.2-601 is 

jurisdictional and failure to file within the allotted time bars 

the claim. Mayberry, 18 Va. App. at 20, 441 S.E.2d at 350. 

 However, Code § 65.2-708(A) permits the commission, "on the 

ground of a change of condition,"1 to "review any award and on 

such review . . . make an award ending, diminishing or increasing 

the compensation previously awarded," provided that 

 [n]o such review shall be made after twenty-four months 

from the last day for which compensation was paid, 

pursuant to an award under this title, except: (i) 

thirty-six months from the last day for which 

compensation was paid shall be allowed for the filing 

of claims payable under § 65.2-503 . . . . 

A review pursuant to Code § 65.2-708(A) is predicated upon a 

prior award. Mayberry, 18 Va. App. at 21, 441 S.E.2d at 350-51 

(citation omitted); see also Shawley, 216 Va. at 445-46, 219 

S.E.2d at 852. "In those cases where no compensation has been 

 

 1"[A] change in physical condition of the employee . . . 

which would affect the right to, amount of, or duration of 

compensation." Code § 65.2-101. 
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paid, the Commission may make an award under § 65.2-503 within 

thirty-six months from the date of the accident." Code 

§ 65.2-708(B) (emphases added). 

 Here, claimant's original application for benefits embraced 

only "medical mileage and prescriptions," and employer 

voluntarily satisfied these expenses, without an award by the 

commission. Claimant made no mention of permanent partial 

disability either to the commission or employer until February 4, 

1994, twenty-six months after the accident, and did not request a 

hearing on this "matter" until December 2, 1994. Thus, the 

provisions of Code § 65.2-708(A) did not save the disability 

claim from the jurisdictional bar of Code § 65.2-601. See

Shawley, 216 Va. at 446, 219 S.E.2d at 852-53; Mayberry, 18 Va. 

App. at 20-21, 441 S.E.2d at 350-51. 

 Nevertheless, the commission, noting that the original

"claim was filed within two years of the accident" and that the 

contested "second claim" was "made within 36 months from the 

. . . accident," applied Code § 65.2-708(B) to exempt the later 

claim from the preclusive effect of Code § 65.2-601. Clearly, 

the disability claim sought an award under Code § 65.2-503, had 

not been preceded by the payment of compensation,2

 and was 

asserted within thirty-six months of the accident which was 

 

 2Compensation within the intendment of Code § 65.2-708 

"refers only to compensation paid to the employee," not 

"voluntary payment of medical expenses by the employer." Meade 

v. Clinchfield Coal Co., 215 Va. 18, 19-20, 205 S.E.2d 410, 411 

(1974). 
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subject of the earlier claim. Unlike Code § 65.2-708(A), Code 

§ 65.2-708(B) does not require the existence of a prior award. 

Thus, the later claim qualified for relief pursuant to Code 

§ 65.2-708(B). 

 Accordingly, we affirm the decision of the commission. 

 Affirmed.