COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Elder and Bray 

Argued at Chesapeake, Virginia 

SAFEWAY STORES, INC. 

 MEMORANDUM OPINION* BY 

v. Record No. 0895-99-2 JUDGE LARRY G. ELDER 

 FEBRUARY 29, 2000 

HAROLD E. McGOWAN 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Charles P. Monroe (Duncan & Hopkins, P.C., on 

brief), for appellant. 

 No brief or argument for appellee. 

 Safeway Stores, Inc., (employer) appeals from a ruling of 

the Workers' Compensation Commission awarding medical benefits 

to Harold E. McGowan (claimant) for neck and back injuries 

arising from an industrial accident of October 22, 1979. On 

appeal, employer contends (1) the commission lacked jurisdiction 

to award benefits for neck and back injuries because claimant 

failed to file a timely claim for these injuries; (2) because 

the commission lacked jurisdiction to award benefits, it 

improperly applied the doctrine of res judicata to bar 

employer's assertion of the statute of limitations; and (3) even 

if the commission had jurisdiction, the record contains no 

expert medical opinion to support the commission's finding of 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication. 
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causation. We hold that the commission lacked jurisdiction to 

award benefits because claimant failed timely to file a claim 

for injuries to his neck and back. Therefore, we reverse the 

commission's ruling and vacate the award without reaching 

employer's third assignment of error. 

 "The right to compensation under [the Workers' Compensation 

Act] shall be forever barred, unless a claim be filed with the 

Commission within two years after the accident." Code 

§ 65.1-87, 1975 Va. Acts ch. 471; see Barksdale v. H.O. Engen, 

Inc., 218 Va. 496, 499, 237 S.E.2d 794, 796-97 (1977) (holding 

that statute of limitations is part of "substantive right to 

recover" under Act and, therefore, applicable statute of 

limitations is one in effect when injury occurs).1 "This is the 

notice which activates the right of the employee to compensation 

and which invokes the jurisdiction of the [Workers' Compensation 

Commission]." Binswanger Glass Co. v. Wallace, 214 Va. 70, 73, 

197 S.E.2d 191, 194 (1973) (construing former Code § 65.1-87). 

 1

 Although Code § 65.1-87 was repealed and recodified at 

§ 65.2-601, effective October 1, 1991, see 1991 Va. Acts ch. 

355, the statute of limitations for filing a claim for 

compensation remains two years. 

Since 1984, the Act has provided that the statute of 

limitations may be tolled under certain circumstances. See Code 

§ 65.2-602, 1991 Va. Acts cc. 216, 355; Code § 65.1-87.1, 1984 

Va. Acts ch. 608, 1989 Va. Acts c. 539 (recodified at § 65.2-602 

by 1991 Va. Acts cc. 216, 355). However, because the statute of 

limitations is part of one's "substantive right to recover" 

under the Act, see Barksdale, 218 Va. at 499, 237 S.E.2d at 

796-97, the tolling provisions are inapplicable to injuries 

incurred before the tolling provisions took effect. 
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"'The right to compensation under the [workers'] compensation 

law is granted by statute, and in giving the right the 

legislature has full power to proscribe the time and manner of 

its exercise.'" Id. at 73, 197 S.E.2d at 193 (quoting Winston 

v. City of Richmond, 196 Va. 403, 407, 83 S.E.2d 728, 731 

(1954)). 

 It is the intent of Code § 65.1-87 that, within the time 

prescribed by the section, 

an employee must assert against his employer 

any claim that he might have for any injury 

growing out of the accident. . . . Failure 

to give such notice within [the statutorily 

prescribed period] would seriously handicap 

the employer . . . in determining whether or 

not there was in fact an injury, the nature 

and extent thereof, and if related to the 

accident. The reason for the limitation 

. . . is a compelling one.2

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

849, 853 (1975) (emphases and footnote added) (construing former 

Code § 65.1-87). Thus, in Shawley, the Court held that the 

commission lacked subject matter jurisdiction to award benefits 

for injury to the claimant's right ankle and back, where the 

 2

 This is distinguishable from the case in which an employee 

timely files a claim for all injuries incurred in an industrial 

accident but subsequently develops additional injuries as a 

"natural consequence" of the industrial accident. See Bartholow 

Drywall Co. v. Hill, 12 Va. App. 790, 793-94, 407 S.E.2d 1, 3 

(1991). 

Because claimant contends the back and neck injuries 

occurred simultaneously with, rather than subsequent to, the 

accepted shoulder and forehead injuries, the doctrine of 

compensable consequences is not applicable. 
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only injuries for which he filed a timely claim were to his left 

ankle and right hip. See id. at 443-44, 219 S.E.2d at 851. The 

Court subsequently noted that "[j]urisdiction [ordinarily] 

cannot be conferred on the Commission by consent" and that it 

comes into being "when 'a claim [is] filed' within two years 

after the accident." Stuart Circle Hosp. v. Alderson, 223 Va. 

205, 208-09, 288 S.E.2d 445, 447 (1982). 

 Here, the only injuries included in the Memorandum of 

Agreement executed by the parties in 1979 were to claimant's 

shoulder and forehead. Claimant filed no claim for benefits for 

back, neck, arm or leg injuries until more than fifteen years 

after the compensable accident. Accordingly, the commission 

lacked subject matter jurisdiction to award medical benefits for 

these injuries. 

 The commission acknowledged that employer's defense of lack 

of subject matter jurisdiction is one that may be asserted "at 

any time" but held that the doctrine of res judicata prevented 

it from raising the defense of lack of jurisdiction more than 

once. Because employer had the opportunity to raise the defense 

at the time of the deputy commissioner's 1995 award, when it 

contended the treatment to claimant's neck and back was not 

causally related, the commission held that employer was barred 

from raising the issue of subject matter jurisdiction in this 

appeal. For the reasons that follow, we disagree. 
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 The doctrine of res judicata provides that "[a] valid, 

personal judgment on the merits in favor of [a party] bars 

relitigation of the [s]ame cause of action, or any part thereof 

which could have been litigated, between the same parties and 

their privies." Bates v. Devers, 214 Va. 667, 670-71, 202 

S.E.2d 917, 920-21 (1974) (footnote omitted). However, "[f]or a 

prior judgment to preclude a subsequent action, . . . the court 

in the first proceeding must have had jurisdiction over the 

subject matter of the controversy and the precise issue upon 

which the judgment was rendered." Lloyd v. American Motor Inns, 

Inc., 231 Va. 269, 271, 343 S.E.2d 68, 69 (1986) (emphasis 

added). If a court lacks jurisdiction to render a judgment, the 

judgment has no preclusive effect. See id. Therefore, the 

doctrine of res judicata provides no exception to the well 

accepted principle of law that lack of subject matter 

jurisdiction may be raised in any court at any time and a 

judgment rendered by a court lacking subject matter jurisdiction 

is void ab initio. See Morrison v. Bestler, 239 Va. 166, 

169-70, 387 S.E.2d 753, 755-56 (1990). 

 For these reasons, we hold that the commission lacked 

subject matter jurisdiction to award medical benefits for 

injuries to claimant's back and neck allegedly sustained in the 

1979 industrial accident. Therefore, we reverse the 
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commission's ruling and vacate the award without reaching 

employer's final assignment of error. 

Reversed and vacated.