COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Frank and Petty Argued at Salem, Virginia

TYCO ELECTRONICS AND INSURANCE COMPANY

OF THE STATE OF PENN SYLVANIA OPINION BY v. Record No. 2148

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- 3 JUDGE ROBERT P. FRANK JUNE 18, 2013 TONY ALV IN VANPELT

FROM THE VIRGINIA WORKERS ’ COMPENSATION COMMISSION Andrew M. Alexander (S emmes , B owen , & S emmes , P.C., on briefs), for appellant s . John B. Krall (R itchie L aw F irm , PLC, on brief), for appellee.
Tyco Electronics and Insurance Co mpany of the S tate of Pennsylvania, its insurer, (collectively referred to as employer) appeal the decision of the Workers’ Compensation Commission ( c ommission) which awarded Tony Alvin VanPelt (claimant) wage compensation and medical benefits for a neck and up per back work

- related injury. Employer assigns error to the c ommission’s failure to make rulings on its defenses of abandonment and res judicata , by failing to apply the statute of limitations , and in making a de facto award. For the reasons state d ,

we a ffirm the decision of the c ommission

. BACKGROUND On appeal from the commission, we view the evidence in the light most favorable to claimant, the party prevailing below. Tomes v. James City Fire , 39 Va. App. 424, 429

- 30, 573 S.E.2d 312, 315 (2002) (citin g R.G. Moore Bldg. Corp. v. Mullins , 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990)).PUBLISHED- 2

- Claimant suffered a work

- related , compensable injury on October 26, 2000. He informed Nurse Lehman that he injured his left shoulder, upper back , and neck. The nurse completed the employer’s accident report, noting claimant’s injury to his left shoulder, upper back , and neck. Claimant was examined by Dr. Phillips on November 2, 2000. Claimant complained of tightness in his neck and pain in his upper back. On Novemb er 7, 2000, Dr. Phillips diagnosed claimant with upper back and neck strain. On November 14, 2000, the doctor recommended an MRI for claimant’s cervical spine. On November 22, 2000, Dr. Bell diagnosed claimant with a herniated disc with resulting cord co mpression causing radiculopathy. Dr. Phillips referred claimant to a neurosurgeon. On December 11, 2000, claimant continued to complain of shoulder tenderness and limited range of motion of his left arm. Dr. Bell diagnosed claimant as having neck and sh oulder injuries and affirmed the plan for claimant to see a neurosurgeon. Dr. Shaffrey, a neurosurgeon, examined claimant on December 13, 2000 and after reviewing the MRI, recommended surgery . On January 2, 2001, claimant was diagnosed by Dr. Chappell wi th a small to moderate tear of the shoulder tendon and spinal stenosis with cord compression , which appeared primarily due to herniated disc material. Dr. Chappell recommended rotator cuff repair for the right shoulder. On March 15, 2001, claimant underw ent the recommended procedure. The record indicates the shoulder injury was resolved by October 1, 2001

. On May 30, 2001, prior to filing his claim for benefits, claimant underwent cervical spine
surgery . He had three more cervical surgeries between May 2002 and January 2006. Employer paid for all of the neck surgeries, hospital bills , and all other medical bills related to the cervical injury, including over 50 visits to a pain management clinic, as well as physical therapy. A representative of employ er attended the majority of claimant’s medical appointments.- 3

- On June 29, 2001, claimant advised Dr. Chappell that he continued to experience pain in his shoulder and that his range of motion was unchanged since May 29, 2001. On October 1, 2001, Dr. Chapp ell determined that claimant had reached maximum medical improvement, giving claimant a 4% permanent impairment of the left upper extremity. Chappell released claimant to work without restrictions. On November 19, 2001, claimant reported to Dr. Chappell that he had increased pain in his left shoulder and still ha d pain in his neck.
C laimant filed a c laim for b enefits on March 20, 2002 . The claim alleged that on October 26, 2000, he sustained injuries to his left shoulder and neck. Claimant sought life time medical benefits . The parties settled the claim and submitted an a greement to p ay b enefits, listing only his left shoulder injury . The parties agreed that claimant was entitled to wage loss benefits beginning March 15, 2001. On April 3, 2002, the c ommission approved the agreement, ordering employer to pay wage loss benefits and medical benefits. On April 15, 2002, the parties submitted a t ermination of w age l oss a ward f orm, terminating the award of temporary total disability benefits based on claim ant’s return to work on April 12, 2001 . The form indicated that wage loss benefits had been paid through September 30, 2001 , based on claimant’s return to work without restrictions on October 1, 2001.
A s upplemental a ward o rder, dated April 23, 2002, not ed the payment of wage loss benefits from May 23, 2001 through September 30, 2001

. On the same date, the parties submitted a s upplemental a greement to p ay b enefits , providing for payment of temporary total disability benefits beginning May 23, 2001, and a

t ermination of w age l oss a ward form , terminating benefits based on claimant’s return to work on October 1, 2001. The c ommission approved the s upplemental a greement on April 23, 2002. The section of the a greement titled “Nature of injury/illness (incl

. b ody parts)” was left blank.- 4

- Employer paid wage loss benefits and medical benefits for claimant’s cervical spine injury through July 5, 2010 at the same weekly rate as originally ordered. On July 2, 2010, employer sought to terminate the weekly wage ben efits . Employer asserted claimant was released to full duty work on June 10, 2010, citing a report by Dr. Ross, a specialist in disability evaluation. Dr. Ross had not treated claimant . Ross merely reviewed claimant’s medical history and concluded claim ant’s left shoulder symptoms had resolved years earlier , opining: “ [t] he shoulder has been a closed topic in the medical records for years.” Dr. Ross cited Dr. Chappell’s conclusion that claimant was capable of returning to work without restrictions in regard to the left shoulder as of October 2, 2001. Dr. Ross opined that claimant continued to have an unrestricted capacity to work, relative to the shoulder

. According to Ross, claimant’s shoulder had no impairment or long

- term disability, other than t hat which was mandated by the impairment rating, resulting from surgical intervention. Ross also concluded that “ [n] o further diagnostic testing, medical evaluations or treatment is needed in regard to the left shoulder.” Dr. Ross gave no opinion as to a ny disability caused by claimant’s neck injury.
C laimant filed a claim on December 22, 2010, seeking payment of medical expenses and temporary total disability benefits from October 1, 2001 and continuing. He listed as injured body parts his left shoulde r, upper back , and neck. Employer denied that claim, asserting that claimant had abandoned the neck injury claim and that the claim was barred by the statute of limitations, laches , and res judicata . Claimant argued he should be granted a de facto award. The matter was heard before a deputy commissioner. Deputy Commissioner Culbreth concluded that claimant had not abandoned his claim regarding his neck injury . Culbreth also found that the claim was not barred by the statute of limitations, laches or re s judicata . The deputy concluded:- 5

- The claimant has consistently complained of neck pain, filed claims relating to his neck pain, sought and received treatment for his ongoing neck pain and had that treatment paid

– over a 10

- year period

– by the carrier. Although the defendants argue against a de facto award because there is a disagreement over the “nature” of th e claimant’s injury, this [dis] agreement is only recent. Rather, for 10 years, based upon the claim forms submitted, and agreements entered, the claimant has relied on the employer’s continued payment, without objection, for treatment of his neck and upper back and for related disability benefits. A de facto award, in such a case, is entirely appropriate. To block further treatment by asserting that the claimant has somehow “slept on his rights” would be manifestly unjust. The deputy commissioner modified claimant’s prior award to include the injury to his neck and upper back. The deputy commissioner noted that n o award for any ongoing benefits

w ould be entered without the submission of proper documentation of the disability. Medical benefits were ordered to be continued. Employer appealed to the full c ommission , which affirmed the award. On appeal to the c ommission, employer argue d that clai mant abandoned his claim for a neck injury and that the statute of limitations barred any claim for a neck or upper back injury.
E mployer also assert ed that the voluntary payment of medical expenses cannot give rise to a de facto award and that the doctri ne of res judicata barred a claim for a neck injury. The c ommission made a number of factual findings. While the s upplemental a greement did not mention the nature of claimant’s injury, the agreement covered the period of disability related to claimant’s first neck surgery which occurred on May 30, 2001. The c ommission also found the employer paid for that surgery and other surgeries and treatments associated with claimant’s neck. The c ommission concluded that , based on reasonable inferences, the s upplem ental

a greement intended to cover the neck injury. Having found the s upplemental a greement was filed within two years of claimant’s injury, the statute of limitations was not a bar to recovery

.- 6

- The c ommission then addressed the de facto award, finding th at e mployer for many years paid disability and medical benefits for claimant’s neck injury , 1 that the s upplemental a greement implicitly covered the neck injury , and that employer offered no facts even to suggest that claimant’s neck and upper back injuries were not compensable or that there was some other basis upon which employer did not agree to an award for the neck injury. The c ommission found that any dispute was not made in good faith, for the purpose of a de facto award . The c ommission noted that b ecause the nature of the injury was ambiguous, it considered extrinsic evidence, including that the period of disability awarded by the s upplemental a greement corresponded with the date of claimant’s first neck surgery. Furthermore, t he employer accepted responsibility both for the cost of the surgery and the resulting disability . Th erefore , the c ommission concluded, the award necessarily included the neck. The c ommission did not address employer’s abandonment and res judicata defenses. Subsequent to th e review opinion, employer filed a m otion to r econsider, asking the c ommission to rule on these two defenses. By order of November 20, 2012, the c ommission denied the motion, holding that “ [g] iven the c ommission’s finding that a timely award was entered f or the claimant’s neck and upper back, we do not need to reach the employer’s defenses of abandonment and res judicata .” This appeal follows.

1 In its brief, e mployer conced ed it voluntarily paid wage benefits and medical treatments for claimant’s cervical spine through July 2010. In his testimony b efore the deputy commissioner, c laimant acknowledged he signed a termination form to terminate his benefits effective the date h e recovered from shoulder surgery. While the law “cannot be subordinated to the private opinions of litigants[,] [a]n entirely different paradigm . . . applies to question s of fact unique to the litigants and specific to the circumstances of each particul ar case . . . ‘ [a] party can concede the facts but cannot concede the law. ’ ” Logan v. Commonwealth , 47 Va. App. 165, 172, 622 S.E.2d 771, 773 (2005) (quoting Cofield v. Nuckles , 239 Va. 186, 194, 387 S.E. 2d 493, 498 (1990 ) )

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- ANALYSIS Commission’s Failure to Rule
I n its first two assignments of error , employer challenges the c ommission ’s failure to address its defenses of abandonment and res judicata

. E mployer argued before the commission and now before this Court that claimant, by agreeing to be compensated for his left shoulder injury in the original agreement, abandoned any claim fo r medical benefits for his neck or upper back injuries. Abandonment is “the relinquishing of a right or interest with the intention of never reclaiming it.” Black’s Law Dictionary 2 (9th ed. 2009) ; see also Covington Virginia, Inc. v. Woods , 182 Va. 538, 547, 29 S.E.2d 406, 410 (1944) (equating a “waiver” with “a voluntary abandonment of some known legal right”). Clearly, the review opinion does not address either of these defenses. In its order denying claima nt’s motion to reconsider, the c ommission det ermined that such a ruling was unnecessary because the s upplemental a greement and the order approving that agreement constituted a timely award and encompassed claimant’s neck and upper back injury. By interpreting the s upplemental a greement as intending to include the neck and upper back injuries,

t he c ommission implicitly found claimant did not abandon his neck injury

. The c ommission also found that the April 23, 2002 s upplemental a ward o rder, which confirmed the s upplemental

a greement, included cl aiman t’s neck injury.
T he c ommission does not adjudicate cases piecemeal. Issues raised and not pursued or determined by hearing or formal agreement are abandoned unless specifically deferred. Jones v. United States Federal Credit Union , 55 Va. App. 227, 2 31, 685 S.E.2d 189, 191 (2009). Employer cites Jones as dispositive and to strengthen its argument that claimant abandoned any claim for medical benefits for his neck or upper back injuries . In Jones , the claimant’s original claim alleged various injur ies, including injury to her left side and knee, yet- 8

- the m emorandum of a greement excluded any mention of her left knee. Eleven years later, Jones sought an additional award for her left knee, based on the original accident. We affirmed the

c ommission’s r uling that Jones had abandoned her knee injury claim when she signed the

m emorandum of a greement , which did not list that injury. We further noted that the

s upplemental a greement neither expanded nor contracted the scope of injuries. Unlike Jones , the c ommission in this case found that the parties did in fact expand the scope of claimant’s injuries. Therefore, the abandonment doctrine does not apply. Employer’s res judicata argument is premised on its contention that the April 3, 2002 order , approving the original agreement and setting forth only the shoulder injury, was a final , unappealed judgment

. We do not disagree with this contention. However, our inquiry does not end there. The resolution of employer’s fir st two a ssignments of e rror , regarding abandonment and res judicata , rests on whether the c ommission correctly interpreted the s upplemental a greement as expanding the scope of claimant’s injuries. Both parties agreed at oral argument that if the commission’s interpretation of the s upplemental a greement is correct, employer’s abandonment, res judicata , and statute of limitations arguments fail. They further agree that in such an event, the parties modified the original award

. The c ommission found the parties’ intent was to expand the nature of the injury, thus modifying the original award. While the specific type of injury was omitted from the

s upplemental a greement , the c ommission found that the parties intended to include claimant’s neck injury. The c ommiss ion based its interpretation on a number of inferences that we will discuss below. The best indicator of intent is the parties’ actions after the supplemental agreement. Employer paid wage loss benefits for the neck injury for nearly ten years.- 9

- “The doctrine of res judicata is applica ble to decisions of deputy commissioners and the full commission.” Rusty’s Welding Serv., Inc. v. Gibson , 29 Va. App. 119, 128, 510 S.E.2d 255, 259 (1999) ( en banc ) (citing K & L Trucking Co., Inc. v. Thurber , 1 Va. App. 213, 219, 337 S.E.2d 299, 302 (198 5)). It “‘precludes the re

- litigation of a claim or issue once a final determination on the merits has been reached.’” Id. (quoting Gottlieb v. Gottlieb , 19 Va. App. 77, 81, 448 S.E.2d 666, 669 (1994)). Virginia’s application of the claim preclusion c omponent of res judicata was best stated a century ago: “Every litigant should have opportunity to present whatever grievance he may have” but if given an opportunity to do so and “having failed to avail himself of it, he must accept the consequences.” M iller v. Smith , 109 Va. 651, 655, 64 S.E. 956, 957 (1909). So a final decree would not only be binding as to all questions “actually raised and decided,” but also to any issue “which properly belonged to the subject of litigation and which the parties, by the exercise of reasonable diligence, might have raised at the time.” Smith v. Holland , 124 Va. 663, 666, 98 S.E. 676, 677 (1919). However, f inal orders may be modified. See generally Southern Iron Works, Inc. v. Wallace , 16 Va. App. 131, 133

- 34, 428 S .E.2d 32, 34 (1993 )

. Here, t he final order was later modified by agreement of the parties. The parties were not

re - litigating the same issue; they merely agreed to modify the original order. The rationale of res judicata

– to prevent a party from gett ing a second bite of the apple

– is not applicable when the parties have agreed to the modification. In fact, the Virginia Workers’ Compensation Act encourages parties to resolve disputes and reach agreements regarding compensable injuries, as long as tho se agreements are approved by the c ommission. See Code § 65.2

- 701(C). In this case, the parties agreed to modify the original order, so res judicata does not apply.
Because the commission found that the parties agreed to expand the type of injury with

t he s upplemental a greement , the c ommission did not fail to rule on employer’s abandonment and- 10

- res judicata defenses. Such a ruling was subsumed in the c ommission’s finding regarding the scope of the s upplemental a greement. Supplemental Agreement As we h ave stated, t he c ommission’s interpretation of the s upplemental a greement controls the resolution of employer’s abandonment, res judicata , and statute of limitation s defenses. The c ommission found that the parties intended for the s upplemental a greement t o expand the scope and nature of claimant’s injuries to include the neck and upper back. 2 While the s upplemental a greement did not list the specific nature of the injury, the c ommission based its interpretation on the following facts: t he agreement cover ed the period of disability related to the claimant’s first neck surgery , which occurred on May 30, 2001; employer paid for that neck surgery and other treatment for claimant’s neck ; medical benefits were awarded for as long as necessary; and employer cont inued to pay wage loss benefits for the neck injury until July 5,
2010

. The c ommission concluded: We recognize that the Supplemental Memorandum of Agreement which became the basis for the second award did not identify the nature of the injury. Nonetheles s, we entered an award consistent with the joint request of the parties. We have the inherent authority to interpret our awards in order to enforce them. Rusty’s Welding Serv., Inc. v. Gibson , 29 Va. App. 119, 129, 510 S.E.2d 255, 260 (1999). We must gi ve reasonable, meaningful and practical effect to the award from an agreement which left the nature of the injury ambiguous. We therefore look to extrinsic evidence. In this case, the period of disability awarded on account of the Supplemental Memorandum of Agreement corresponded with the claimant’s neck injury. The employer accepted responsibility both for the cost of the surgery and the resulting disability and therefore the award necessarily included the neck.

2 A factfinder’s ruling on int ent is a factual finding, see Robertson v. Commonwealth , 18 Va. App. 635, 639, 445 S.E.2d 713, 715 (1994), and “[i]t is fundamental that a finding of fact made by the commission is conclusive and binding upon this court on review , ” Sneed v. Morengo , 19 Va. App. 199, 204, 450 S.E.2d 167, 171 (1994) (citations omitted).- 11

- The c ommission’s finding is consistent w ith Boxley v. Onorato , 218 Va. 931, 243 S.E.2d 201 (1978). There, the original m emorandum of a greement specified only a fractured rib, contusion of the left shoulder , and a sprained right knee. The s upplemental a greement did not enlarge the description o f claimant’s injuries to include injuries to claimant’s neck and back. Claimant sought additional compensation for those injuries. The s upplemental a greement was filed within the statutory limitations period. Boxley addressed whether the s upplemental

a g reement enlarged the nature of the injuries to the neck and back. The Supreme Court of Virginia held that it did , because that agreement incorporated a physician’s report which described the neck and back injuries. The Court noted that “ [m] oreover, the c arrier was advised of the back and neck pains within six months of the accident by Dr. Daner and subsequently through the reports of Dr. Butterworth which resulted in extending the payments of compensation. ” Id. at 936, 243 S.E.2d at 204. Boxley instruct s us that we look not only to the express words of the agreement, but to extrinsic evidence and to employer ’ s actual knowledge regarding the type of injury. In the instant case, as in Boxley , the c ommission considered the extrinsic evidence in interpretin g the

s upplemental a greement. We conclude the c ommission did not err in its interpretation of the s upplemental

a greement. ‘ “Decisions of the commission as to questions of fact, if supported by credible evidence, are conclusive and binding on this Court.” ’ Gallahan v. Free Lance Star Publishing Company , 41 Va. App. 694, 703, 589 S.E.2d 12, 17 (2003) (quoting Allen & Rocks , Inc. v. Briggs , 28 Va. App. 662, 673, 508 S.E.2d 335, 340 (1998) )

. 3

3 In Gibson , 29 Va. App. at 129, 510 S.E.2d at 260, we stated that “ cou rts have the authority to interpret their own orders. F urthermore , when construing a lower court’ s order, a reviewing c ourt should give deference to the interpretation adopted by the lower court. We hold that these principles apply when interpreting the adjudicative orders of an administrative agency. ” ( C itations omitted).- 12

- De Facto Award Employer next contends the c ommission erred in de termining the existence of a de facto award.
In Ryan’s Family Steak Houses, Inc. v. Gowan , 32 Va. App. 459, 528 S.E.2d 720 (2000), we reiterated our holding from National Linen Serv. v . McGuinn , 5 Va. App. 265, 269

- 70, 362 S.E.2d 187, 189 (1987) ( en banc ) as follows: [W]here the employer has stipulated to the compensability of the claim, has made payments to the employee for some period of time without filing a memorandum of agreement, and fails to contest the compensability of the injury, it is “reasonabl e to infer that the parties ha[ve] reached an agreement as to the payment of compensation,” and a de facto award will be recognized. Gowan , 32 Va. App. at 463, 528 S.E.2d at 722 (quoting McGuinn , 5 Va. App. at 269

- 70, 362 S.E.2d at 189). In ruling that cl aimant proved the existence of a de facto award, the commission in this

case found as follows: Here, the fact that the employer, for many years, paid disability and medical benefits for the claimant’s neck injury, and the fact that a Supplemental Agreement to Pay Benefits was submitted to the c ommission within the limitations period covering, by implication, the claimant’s neck injury, constitute a sufficient basis upon which to find a de facto award. It is true that such an award will not be entered if, a t the hearing of the case, the employer in good faith disputes the compensability of the claim. The employer here contends that it did dispute the compensability of the neck injury. However, they offered no facts to even suggest that the neck and upper ba ck injuries were not compensable, or that there was some other basis upon which they did not agree to an award for the neck injury. Accordingly, we find that the dispute was not, for the purpose of a de facto award, made in good faith.- 13

- Employer raises a number of issues concerning the de facto award. 4 First, the holding in McGuinn was premised on the fact that Code § 65.1

- 93 , as it existed then, did not provide for a penalty for failing to file a memo randum of agreement. Employer contends a subsequent

a mendment did impose a penalty for failure to file, undercutting the very purpose of a de facto award. Second, a de facto award must be based on the payment of compensation, not medical benefits. Third, employer argues, it did contest the compensability o f the claim for a neck injury. Fourth, there was no actual agreement or stipulat ed agreement as to the compensability of claimant’s neck injury. Fifth, no evidence supported the deputy co mmission er ’s finding that claimant relied on employer’s continued p ayment of benefits. Sixth, the de facto award doctrine cannot circumvent the statute of limitations. 5
In Gowan , this C ourt rejected the employer’s argument that the McGuinn rationale had been eviscerated by the amendment authorizing a penalty for not f iling a memorandum of agreement , noting: In neither the recodification of former Code § 65. 1

- 93, nor the revision of the present version of Code § 65.2

- 701 did the General Assembly “ reject[] or modify [our] judicial interpretation of the statute in issue. ‘ Under these circumstances, the construction given to the statute is presumed to be sanctioned by the legislature and therefore beco mes obligatory upon the courts. ’ ” Cochran v. Commonwealth , 258 Va. 604, 607, 521 S.E.2d 287, 289 (1999) (quoting Vansant a nd Gusler, Inc. v. Washington , 245 Va. 356, 361, 429 S.E.2d 31, 33

- 34 (1993)). We, accordingly, find that Code § 65.2

- 701(A) authorizes de facto awards and that the commission did not err in recognizing their validity. Gowan , 32 Va. App. at 463, 528 S.E .2d at 722

. Additionally, we have approved de facto awards in numerous cases since the 1991 revision of Code § 65.2

- 701(A). See Henrico Pub. Utils. v. Taylor , 34 Va. App. 233, 540 S.E.2d

4 Employer does not contest that the payments we re voluntary.

5 This assertion is not contested by claimant

.- 14

- 501 (2001); Lyons v. Newport News Shipbuilding , No. 0304

- 05

- 1 , 2005 Va. App. LEXIS 532 (Va. Ct. App. Dec. 28, 2005); Casey Chevrolet v. Danforth , No. 1761

- 00

- 1 , 2001 Va. App.
LEXIS 76 (Va. Ct. App. Feb. 20, 2001).
In Lysable Transp ort Inc. v. Patton , 57 Va. App. 408, 702 S.E.2d 596 (2010), we confirmed the efficacy of a d e facto award , although we found it did not apply to the facts of that case. We said, “ [t] he de facto award doctrine applies only when ‘the employer has stipulated to the compensability of the claim, has made payments to the employee for some significant period of time without filing a memorandum of agreement , 6 and fails to contest the compensability of the injury . . . .’” Id. at 415, 702 S.E.2d at 599 (quoting Gowan , 32 Va. App. at 463, 528 S.E.2d at 722 (emphasis omitted ) (footnote added)

. Only when t hese factors are present is it “reasonable to infer that the parties have come to an agreement ” regarding the compensability of a claim. I d. In Lysable , we concluded that the employer expressly c ontested compensability of the injury and there was no agre ement or stipulation of compensability. In the instant case, the c ommission confirmed the deputy commissioner ’s factual finding that the disagreement over the “nature of claimant’s injury is only recent.” The c ommission found the “dispute was not, for th e purpose of a de facto award, made in good faith.” Factual findings of the c ommission are conclusive and binding on this Court when they are based on credible evidence. James v. Capitol Steel Constr. Co. , 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). Employer further contends a de facto award cannot be based on the payment of medical benefits alone, relying on Code § 65.2

- 701(A) , which refers to “ compensation.” Employer cites The Uninsured Employer’s Fund v. Wilson , 46 Va. App. 500, 619 S.E.2d 476 ( 2005) , for the

6 Because employer never contended that the presence of a memorandum of agreement defeats the de facto award, we will not address that issue.- 15

- proposition that the word “compensation , ” in a w orker s’ c ompensation context , means wage loss compensation, excluding medical benefits. Id. at 503, 619 S.E.2d at 478. We can assume wi thout deciding a de facto award cannot be based on medic al benefits alone . However, in addition to the medical benefits , employer paid wage loss compensation to claimant for over ten years. Thus, employer’s contention has no merit. We conclude that under McGuinn and its progeny, the elements warranting a de facto award were present in this case, so the award was supported by the evidence: t he parties were in agreement as to the amount of compensation as set forth in the s upplemental a greement; employer made wage loss compensation payments and medical payment s for the claimant’s neck injury for over ten years without contesting compensability; there was an agreement as to the compensability of the neck injury as evidenced by employer paying wage loss benefits 7 ; and employer was aware , and thus on notice, that claimant had ongoing treatment for the ne ck injury. Statute of Limitations Employer next contends that claimant’s claim for his neck injury was not filed until December 7, 2010, more than two years after the work

- related injury of October 26, 2000. Code § 6 5.2

- 601 requires a claim be filed within two years after the accident, or the claim “shall be forever barred.” Like its other assignments of e rror, e mployer’s statute of limitations argument is also governed by the c ommission’s ruling on the s upplement al a greement. It is undisputed that the agreement fell within the two

- year statute of limitations. Thus, because the s upplemental

7 As we explained in Gowan , 32 Va. App. 459, 528 S.E.2d 720, where the employer has stipulated to the compensability of the claim, has made payments to the employee for some significant period of time without filing a memorandum of agreement, and fails to contest the compensability of the injury, it is “ reasonable to infer that the parties ha[ve] reached an agreement as to the payment of compensation,” and a de facto award will be recognized. Id. at 463, 528 S.E.2d at 722 (quoting McGuinn , 5 Va. App. at 269

- 70, 362 S.E.2d at 189).- 16

- a greement encompassed the neck injury, the statute of limitations d id not bar an award based on the neck injury. While bot h parties, in their briefs, argue whether imposition and equitable estoppel w ere relevant to the statute of limitations determination, the c ommission addressed neither of these issues. Its ruling on whether the statute of l imitations barred recovery was b ased solely on the efficacy of the s upplemental a greement , which both parties agree was filed within two years of the injury. Employer contends there is no evidence to support the deputy commissioner ’s finding that claimant relied on employer ’ s continued payment for related disability payments. We reject this contention , because the c ommission did not so find nor did it incorporate the deputy commissioner ’s specific finding of reliance in its opinion. We do not review the opinion of a d eputy c ommissioner . Code § 17. 1

- 405 gives this C ourt jurisdiction over “[a]ny decision of the Virginia Workers’ Compensation Commission. ”
CONCLUSION The c ommission did not err in finding a de facto award was proper in this case. We further uphold the commission’s inte rpretation of the s upplemental a greement, thus resolving the abandonment, statute of limitations, and res judicata defenses in claimant’s favor. For the foregoing reasons, we affirm the rulings of the c ommission. Affirmed.