COURT OF APPEALS OF VIRGINIA 

Present: Judges Clements, Haley and Senior Judge Bumgardner 

Argued at Alexandria, Virginia 

JUAN AYALA 

 MEMORANDUM OPINION* BY 

v. Record No. 1540-07-4 JUDGE JEAN HARRISON CLEMENTS 

 FEBRUARY 19, 2008 

HANN & HANN, INC. AND 

 PEERLESS INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION 

 Daniel P. Barrera (W. Geovanni Munoz; The Chandler Law Group, 

on briefs), for appellant. 

 Roger L. Williams (John T. Cornett, Jr.; Williams & Lynch, on 

brief), for appellees. 

 Juan Ayala (claimant) appeals a decision of the Workers’ Compensation Commission 

(commission) denying benefits on his claim against Hann & Hann, Inc. and Peerless Insurance 

Company (collectively, employer). Claimant contends the commission erred in concluding that 

the statute of limitations contained in Code § 65.2-601 barred his claim. Finding no error, we 

affirm the commission’s decision. 

 As the parties are fully conversant with the record in this case, and because this 

memorandum opinion carries no precedential value, this opinion recites only those facts and 

incidents of the proceedings as are necessary to the parties’ understanding of the disposition of 

this appeal. 

 

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 
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I. BACKGROUND 

Claimant sustained injury to his left knee on June 26, 2003 while working for employer. 

The parties stipulated that employer received timely notice of the accident, that claimant’s injury 

was compensable, that benefits were paid during certain periods following the injury, and that 

employer never filed a first report of accident. 

Although claimant’s injury required continuing medical treatment, employer ceased 

paying benefits to claimant. Subsequently, claimant filed a claim for benefits with the 

commission on November 15, 2005. Following a hearing on the claim, the deputy commissioner 

found the two-year statute of limitations set forth in Code § 65.2-601 was tolled pursuant to 

Code § 65.2-602 because employer’s “failure to file the [first report of accident] prejudiced the 

claimant’s rights” in that he never received a blue letter or informational pamphlet from the 

commission informing him of the need to file within the limitations period. 

Reversing the deputy commissioner, the commission held that the claim was time barred. 

In reaching that decision, the commission stated, as follows: 

The [d]eputy [c]ommissioner erred by presuming prejudice. 

At no time during the hearing did the claimant testify he was 

prejudiced by the employer’s failure to file an accident report. Not 

only did he fail to present this necessary evidence, within two 

months after his accident the claimant hired an attorney who 

actively represented him for about a year and [a] half. Under these 

circumstances, we cannot presume prejudice so as to toll the 

statute of limitations. 

This appeal by claimant followed. 

II. ANALYSIS 

 On appeal, claimant contends the commission erred in finding his claim for benefits time 

barred. Specifically, he claims the commission “improperly applied the facts to the law” in 

concluding that he was not prejudiced by employer’s failure to file a first report of accident. We 

disagree. 
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“By well established principles, we view the evidence in the record in the light most 

favorable to the party prevailing before the commission.” Boys and Girls Club of Virginia v. 

Marshall, 37 Va. App. 83, 85, 554 S.E.2d 104, 105 (2001). “Findings of fact by the 

[commission] will be upheld on appeal if supported by credible evidence.” Goodyear Tire & 

Rubber Co. v. Harris, 35 Va. App. 162, 167-68, 543 S.E.2d 619, 621 (2001). “‘In determining 

whether credible evidence exists, the appellate court does not retry the facts, reweigh the 

preponderance of the evidence, or make its own determination of the credibility of the 

witnesses.’” Henrico County Sch. Bd. v. Etter, 36 Va. App. 437, 443-44, 552 S.E.2d 372, 375 

(2001) (quoting Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 

(1991)). However, the commission’s legal determinations are not binding on appeal and will be 

reviewed de novo. Robinson v. Salvation Army, 20 Va. App. 570, 572, 459 S.E.2d 103, 104 

(1995). 

“A claim for compensation must be filed with the commission within two years after the 

accident or the claim shall be forever barred. Code § 65.2-601. This provision is jurisdictional, 

and failure to file within the prescribed time will bar a claim.” Mayberry v. Alcoa Bldg. Prods., 

18 Va. App. 18, 20, 441 S.E.2d 349, 350 (1994). However, Code § 65.2-602 operates to toll the 

statutory bar, as follows: 

In any case where an employer has received notice of an 

accident resulting in compensable injury to an employee as 

required by § 65.2-600, and whether or not an award has been 

entered, such employer nevertheless has paid compensation or 

wages to such employee during incapacity for work as defined in 

§ 65.2-500 or § 65.2-502, resulting from such injury or the 

employer has failed to file the report of said accident with the 

Virginia Workers’ Compensation Commission as required by 

§ 65.2-900, and such conduct of the employer has operated to 

prejudice the rights of such employee with respect to the filing of a 

claim prior to expiration of a statute of limitations otherwise 

applicable, such statute shall be tolled for the duration of such 

payment or, as the case may be, until the employer files the first 

report of accident required by § 65.2-900. For purposes of this 
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section, such rights of an employee shall be deemed not prejudiced 

if his employer has filed the first report of accident as required by 

§ 65.2-900 or he has received after the accident a workers’ 

compensation guide described in § 65.2-201 or a notice in 

substantially the following form . . . . 

To invoke the tolling provision of Code § 65.2-602, the claimant bears the burden of establishing 

prejudice. Hall v. Winn-Dixie Stores, Inc., 41 Va. App. 835, 842, 589 S.E.2d 484, 488 (2003) 

(rejecting the application of a per se rule of prejudice and remanding “for the commission to 

determine if claimant met her burden to show prejudice from employer’s failure to file the [f]irst 

[r]eport”). 

Applying these principles to this case, we conclude that the record supports the 

commission’s finding that claimant did not sustain his burden of proving he was prejudiced by 

employer’s failure to file a first report of accident. 

As the commission noted, within two months after claimant’s accident, claimant had 

hired Kamal Nawash as his attorney “who actively represented him for about a year and [a half]” 

in connection with his injury. In a letter dated August 4, 2003, Nawash informed employer’s 

insurer that he represented claimant “in a case of workers’ [c]ompensation” and to “forward any 

future correspondence to [Nawash’s] attention.” Nawash’s office corresponded through four 

facsimile transmission forms dated between October 2003 and June 2004 with employer’s 

insurer regarding claimant’s injury. 

At the hearing before the deputy commissioner, Analuisa Clark, a case manager hired by 

employer’s insurer to coordinate claimant’s medical treatment, testified as to the frequent 

correspondence she had with Nawash’s office, including updates she provided for every 

physician appointment and faxes to Nawash’s office containing disability slips, medical records, 

and any kind of paperwork involving claimant’s treatment. 
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Indeed, at no time during the hearing did claimant testify that he was prejudiced by 

employer’s failure to file the first report of accident. Furthermore, absent from the record is 

evidence presented by claimant that proved he was not aware of the requirement of filing his 

claim with the commission within the two-year limitations period. 

Considering these circumstances, we conclude that credible evidence supports the 

commission’s determination that claimant did not prove prejudice. We hold, therefore, that the 

commission did not err in finding claimant’s claim for benefits barred by the statute of 

limitations contained in Code § 65.2-601. 

III. CONCLUSION 

For these reasons, we affirm the decision of the commission. 

Affirmed.