COURT OF APPEALS OF VIRGINIA
Present: Judges AtLee, Malveau x and Senior Judge Annunziata Argued at Fredericksburg, Virginia

NICHOLAS MALDONADO MEMORANDUM OPINION * BY v. Record No. 0027-17-4 JUDGE ROSEMARIE ANNUNZIATA AUGUST 15, 2017 FEDERAL EXPRES S CORPORATION

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Kathleen Grace Walsh for appellant. (Alex M. Mayfield; Franklin and Prokopik, P.C., on brief), fo r appellee. Appellee submitting on brief.

Nicholas Maldonado (claimant) a ppeals the ruli ng of the Worker s’ Compensation Commission denying claimant’s reques t for permanent partial dis ability benefits arising from a workplace accident on Januar y 8, 2009. The Commission ruled th at the disability claim, which claimant submitted to the Commission on August 27, 2015, had no t been preserved by the benefits claim forms that claimant had submitted in 2009, which had resulted in an award for medical benefits only, and thus the claim filed in 2015 was unt imely. For reasons stated below, we affirm the Commission’s decision. While employed at Federal Express (employer), claimant suffered a compensable injury to his right wrist and shoulder and submitted a benefits claim form on January 29, 2009. He completed only Part A of the for m, which preserved his rights u nder the Workers’ Compensation Act, but he did not request any spe cific benefits in Part B. O n March 31, 2009, claimant

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - submitted another benefits claim form, stating in Part B of the form that he had unpaid medical bills related to his injury, treatment was ongoing, and future surgery was required. The Commission issued a “medica l award only” on June 19, 2009. The award stated that “any claim for wage loss benefits must be f iled within two years from the date of injury.” Claimant wrote the Commission on January 26, 2010 that he expe cted to have surgery later that year and would be out of work for two or three month s. However, claimant chose not to have surgery in 2010 and contin ued to work at Federal Expres s. On January 7, 2011, claimant submitted another benefits claim form to the Commission. He said he had missed work because of his injury but had not lo st wages and was submitting the claim form “for records purpose only.” Claimant also noted tha t he was receiving physical therapy for his shoulder and exp ected to have future surgery. The Commission advised claimant that no action would be taken until a request was made for spec ific benefits. Claimant wrote the Commission twice in 2012 and three times in2015 regarding additional treatment for hi s shoulder. On August 27, 2015, cla imant submitted a benefits claim form, noting he had injured hi s right arm in 2009 and had “a lo ss of use . . . of a body part . . . .” Claimant’s doctor rated the permanent impairment of claimant’s right arm at twenty-four percent. Claimant had shoulder re placement surgery in October 2015. A hearing was held before a depu ty commissioner, who determine d the claim for permanent partial disability benefits was not timely filed. 1 Claimant requested review. The Commission issued its opi nion on December 6, 2016, affirming th e decision of the deputy commissioner. The Commission he ld that, pursuant to Code § 65. 2-708(B), claimant had three

1 In addition to arguing the claim was not timely filed, employe r also contended the permanent partial disability was not related to the 2009 accide nt and that claimant had a pre-existing condition. Neither t he deputy commissioner nor th e full Commission ruled on these points, and they are not pertinen t to resolution of this appeal

.- 3 - years from the date of the accide nt to file a claim for disabil ity benefits and tha t the documents he had submitted to the Commission w ere not sufficient to const itute a claim because they “did not inform [employer] he was s eeking permanent partial disabili ty.” This appeal followed. Claimant contends the Commi ssion erred as a matter of law in h olding his request for permanent partial disability benefits was timed-barred. He arg ues that the forms he submitted on January 29, 2009 and March 31, 2009 pres erved his claim. He fu rther argues the benefits claim form did not inform him that fai ling to complete Part B when su bmitting the initial claim would preclude him from seeking disabi lity benefits later. He conten ds he should not be penalized for relying on the language in the form. The Workers’ Compensation Act “is highly remedial” and should be “liberally construed to advance its purpose of compensating employees for accidental injuries resulting from the hazards of the employment.” Masonite Holdings, Inc. v. Cubbage , 53 Va. App. 13, 19-20, 668 S.E.2d 809, 812 (2008) (quoting Corporate Res. Mgmt. v. Souther s, 51 Va. App. 118, 126, 655 S.E.2d 34, 38 (2008) ( en banc )). Even so, this Court construes the evidence in the record, and a ll reasonable inferences, in the li ght most favorable to the party that prevailed belo w, which in this case is the employer. See Stillw ell v. Lewis Tree Serv., Inc., 47 Va. App. 471, 474, 624 S.E.2d 681, 682 (2006). Whether a claim is barred by the statute of limitations is a le gal question we review de

novo , and “this Court is not bound by the l egal determinations made by the commission.” Tuck v. Goodyear Tire & Rubber Co., 47 Va. App. 276, 284, 623 S.E.2d 433, 437 (2005). However, claimant “bears the burden of proving his claim was timely file d.” Massey Builders Supply Corp. v. Colgan, 36 Va. App. 496, 502, 553 S.E.2d 146, 149 (200 1). “Whether the information filed with the commission is suffi cient to constitute a timely filed claim for a particular injury is- 4 - a question of fact, and the com mission's finding will not be di sturbed on appeal if supported by credible evidence.” Sou thers, 51 Va. App. at 127, 655 S.E.2d a t 38. Code § 65.2-601 provides that an empl oyee’s right to compensati on from his employer for an injury arising from an accident at his employment is “fo rever barred” unless the claim is filed with the Workers’ Compen sation Commission within two year s of the date of the accident. See, e.g., Philip Morris USA, Inc. v. Mease, 62 Va. App. 190, 1 98, 745 S.E.2d 155, 159 (2013); Mayberry v. Alcoa Bldg. Prods., 18 Va. App. 18, 20, 441 S.E.2d 349, 350 (1994). Code § 65.2-708(A) provides that wh ere a change in condition is asserted, as in the instant case, the Commission “ma y review any award of compensat ion and on such review may make an award ending, diminishi ng or increasing the compensatio n previously awarded, subject to the maximum or minimum provided in this title . . . .” Code § 65.2-708(A) and (B) set forth time frames for making such review, dependent, in part, on whet her an award of compensation has been made. Code § 65.2-708(C) pr ovides for additional toll ing in certain circumstances, which are not applicable to claimant and were not raised before the Commission. The Commission applied Code § 65.2- 708(B), holding claimant had thirty-six months from the date of the accident t o file a disability claim. See Code § 65.2-708(B) (“In those cases where no compensation has bee n paid, the Commission may make an award under § 65.2-503 2
within 36 months from the date of the accident.”). Since the a ccident occurred on January 8, 2009, claimant had until Januar y 8, 2012 to file his claim. He completed only Part A of the benefits form, which preserved h is rights under the Workers’ Co mpensation Act, but he did not request any specific benefits in P art B, such as disability ben efits he sought later. The Commission issued a “medica l award only” on June 19, 2009. On March 31, 2009, claimant

2 Code § 65.2-503 allows compensati on for permanent total and pe rmanent partial loss of body parts, such as arms.- 5 - submitted another benefits claim form, stating in Part B of the form that he had unpaid medical bills related to his injury, treatment was ongoing, and future surgery was required. However, he did not request disability benefits. In January 2011, claimant informed the Commission that he had missed work due to his injur y, but he further said he had n ot lost wages and that he was submitting the information “for record purposes only.” He indi cated surgery would be performed in the future, and he w as advised that his employer’s insurance carrier would agree to medical treatment causally rel ated to his injury. Although cla imant provided information about the accident and his injury, he di d not request compensation fo r loss of use of his right arm due to his shoulder injury. Accordin gly, the evidence supported th e Commission’s ruling that claimant’s original claim di d not preserve his claim in 2015 fo r permanent partial disability benefits. See Gomez v. Garci a Constr. Co., Inc., No. 1624-15-2 , 2016 Va. App. LEXIS 98 (Va. Ct. App. Mar. 29, 2016) (holding that where employee was i njured in 2007 and received medical benefits, employee’s 2014 claim for permanent disabilit y benefits was untimely, as letter employee wrote to Commission in 2010 w as treated as claim for a dditional medical benefits and neither that letter nor letter written in 2011 mentioned perman ent disability benefits). Claimant relies on this Court’ s holding in Cochran Indus. VA v. Meadows, 63 Va. App. 218, 225-26, 755 S.E.2d 489, 493 (2014), that completion of Part A of the benefits claim form was sufficient to constitute aclaim for purposes of Code § 65. 2-601. In Cochran, the employee injured his hand in July 2010 and fil ed a benefits claim form i n August 2010. See Cochran, 63 Va. App. at 221, 755 S.E.2d at 490. He completed only Part A o f the form he filed and received medical benefits for the first t wo years after his injury. See id. His subsequent May 2012 claim, based on the need for hand surgery t hat his doctor recommended, was denied in August 2012 on the basis that he had not indi cated the benefits he sought on h is initial claim form. See id. at 221-22, 755 S.E.2d at 490-91. The empl oyee filed another claim form in September 2012, which- 6 - the employer asserted was barre d by the statute of limitations because it had not been filed within two years of the acciden t. See id. at 222, 755 S.E.2d at 491. However, the Commission held the claim was timely filed and this Court affirmed the ruling on th e ground that Cochran was seeking additional medical benefits, w hich had been preserved by his or iginal claim. See id. at 227, 755 S.E.2d at 493. It follows that Cochran does not control in the instant case where claimant’s request for permanent partial di sability benefits was not a req uest for continuation of the medical benefits he had received in 2009, but a new claim for which he sought new benefits based on a change in his condition and for w hich no compensation had previ ously been awarded. See Code § 65.2-708(B) (“In those cases whe re no compensation has been p aid, the Commission may make an award under § 65.2-503 3 within 36 months from the da te of the accident.”). Additionally, the claim forms claimant submitted in 2009 and 20 11 stated he had injured his right wrist and right shoul der. The 2015 claim form stated the injured body part was his right arm. See Shawley v. Shea-Ball Constr. Co., 216 Va. 442, 219 S. E.2d 849 (1975) (holding that employee’s timely initial claim f or injuries to his left ankle and right hip did not preserve his later claim for injuries to hi s back and right ankle and, thus, his later claim was time-barred). Finally, claimant’s argument that he should not be penalized fo r relying on the language in the claim benefits form imp licitly posits that the Commissio n reached an unjust result in his case. However, if the Commission had thought claimant was unju stly denied benefits, it could have invoked its discretionar y power of imposition. See Cochra n, 63 Va. App. at 222 n.3, 755 S.E.2d at 491 n.3 (relating that depu ty commissioner alternativ ely held that even if the form was not a claim, the imposition doctrine would apply to overcome th e statute of limitations). The doctrine of imposition allows th e Commission to render decision s based on justice where a

3 Code § 65.2-503 allows compensati on for permanent total and pe rmanent partial loss of body parts, such as arms.- 7 - claimant lacking superior knowledge or experience with workers’ compensation law has been deprived of benefits to which he would be otherwise entitled. See Butler v. City of Va. Beach, 22 Va. App. 601, 605, 471 S.E.2d 830, 832 (1996). The Commissi on did not consider imposition in claimant’s case, a nd this Court may not consider it sua sponte . See Hodnett v. Stanco Masonry, Inc., 58 Va. App. 244, 254, 708 S.E.2d 429, 435 (2011) (holding that Court could not consider appellant’s due process argument because Com mission did not rule on it). The Commission’s ruli ng that the claim was not timely filed is consistent with the applicable statutes and case la w. Accordingly, we affirm the C ommission’s ruling. Affirmed.