COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

MONIQUE LOUISE BRYANT 

 MEMORANDUM OPINION*

v. Record No. 1186-96-3 PER CURIAM 

 NOVEMBER 12, 1996 

FIELDCREST CANNON, INC. 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (James B. Feinman, on brief), for appellant. 

 (Martha White Medley; Daniel, Vaughan, Medley & 

Smitherman, on brief), for appellee. 

 Monique Louise Bryant ("claimant") contends that the 

Workers' Compensation Commission ("commission") erred in finding 

that (1) her claim for benefits was barred by the applicable 

statute of limitations contained in Code § 65.2-601; and (2) she 

did not timely file her answers to employer's interrogatories in 

accordance with Rule 1.8(H), Rules of the Virginia Workers' 

Compensation Commission. 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. 

 Claimant filed an original claim for benefits on May 19, 

1994, alleging an injury by accident occurring on January 29, 

1994. On June 21, 1994, employer's counsel propounded 

interrogatories to claimant. On August 16, 1994, employer's 

 

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

designated for publication. 
 2 

counsel wrote to the commission asking that it direct claimant to 

file answers to these interrogatories. In an August 18, 1994 

letter, Deputy Commissioner Gorman informed claimant's counsel 

that "failure to file Claimant's Answers to Interrogatories by 

August 26, 1994 will result in dismissal of the claim." On 

August 26 and 31, 1994, employer's counsel informed the 

commission that it had not received claimant's answers to the 

interrogatories and asked that the commission dismiss claimant's 

application. On August 31, 1994, Gorman entered an order, which 

provided as follows: 

 [T]he matter of Monique Louise Bryant v. 

Fieldcrest Cannon, Inc. is dismissed without 

prejudice and shall be removed from the 

docket until such time as claimant's Answers 

are filed with the . . . Commission at which 

time it will be placed again on the hearing 

docket. 

 The commission received claimant's answers to the 

interrogatories on September 1, 1994. Claimant did not sign the 

answers under oath. Instead, claimant's counsel signed the 

answers, stating that he would forward a signature page. 

Claimant took no further action on her claim until January 30, 

1996. On that date, the commission received a letter from 

claimant's counsel filing a new claim for benefits and requesting 

a hearing. 

 The commission held that claimant did not timely file her 

claim. In so ruling, the commission construed the language 

contained in Gorman's August 31, 1994 order to require that 
 3 

claimant file answers to employer's interrogatories before the 

commission would accept a new claim and place it on the hearing 

docket. In refusing to consider either the May 19, 1994 or 

January 30, 1996 claims as timely filed, the commission stated: 

 Rule 1.8(H) states in part that answers to 

interrogatories are to be filed under oath. 

Although the employee filed answers to the 

interrogatories with the Commission on 

September 1, 1994, counsel's letter stated 

that the employee's signature page would be 

forthcoming. It was not provided to the 

Commission within the two year period 

required by Virginia Code Ann. § 65.2-601. 

Therefore, the Commission concludes that the 

employee did not comply with the requirements 

of Deputy Commissioner Gorman's August 31, 

1994 order. The employee then filed her 

second claim for benefits more than two years 

from the date of the accident. 

 Claimant contends that the commission erred because Gorman's 

August 31, 1994 order did not dismiss her May 19, 1994 claim, but 

only temporarily removed the claim from the hearing docket. 

Claimant also asserts that the commission erred in finding that 

she did not comply with Rule 1.8(H) and in not providing her with 

an opportunity to be heard on employer's motion to dismiss her 

claim. 

 In Keenan v. Westinghouse Elevator Co., 10 Va. App. 232, 391 

S.E.2d 342 (1990), the employee filed a claim for benefits and 

later filed a separate application for hearing, which he 

subsequently withdrew. The commission entered an order stating 

that the hearing would not take place and ordered the case 

removed from the hearing docket. Id. at 233-34, 391 S.E.2d at 
 4 

343-44. In Keenan, we held that "in the absence of an order from 

the commission dismissing the claim for failure to prosecute, the 

commission has jurisdiction to hear the pending claim." Id. at 

236, 391 S.E.2d at 344. 

 In this case, unlike Keenan, claimant did not file a 

separate application for hearing. The record clearly shows that 

the deputy commissioner did not simply remove the May 19, 1994 

claim from the hearing docket. Rather, the deputy commissioner's 

August 31, 1994 order "dismissed" the May 19, 1994 claim without 

prejudice. Furthermore, the order provided the condition upon 

which the commission would accept a new claim. Claimant did not 

object to employer's motion to dismiss her claim nor did she 

appeal the August 31, 1994 order. Her inaction renders meritless 

her due process arguments. Claimant's counsel filed answers to 

interrogatories, but claimant did not sign these answers under 

oath as required by Rule 1.8(H). Instead, claimant waited one 

and one-half years to pursue her claim, and then failed to file a 

signature page or a new claim for benefits before the two-year 

statute of limitations expired. 

 Based upon this record, we cannot say as a matter of law 

that the commission erred in finding that the May 19, 1994 and 

January 30, 1996 claims were barred by the statute of limitations 

contained in Code § 65.2-601. Accordingly, we affirm the 

commission's decision. 

 Affirmed.