COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

JOYCE ANN KILE 

v. Record No. 2216-96-4 MEMORANDUM OPINION*

 PER CURIAM 

PRINCE WILLIAM COUNTY FEBRUARY 25, 1997 

 SCHOOL BOARD 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (James D. Alvey; Alvey & Alvey, on briefs), 

for appellant. 

 (Thomas C. Palmer, Jr.; Brault, Palmer, 

Grove, Zimmerman, White & Mims, on brief), 

for appellee. 

 Joyce Ann Kile contends that the Workers' Compensation 

Commission (commission) erred in finding that (1) the two-year 

statute of limitations contained in Code § 65.2-601 expired 

before Kile filed her May 17, 1995 application seeking an award 

of temporary total disability benefits; and (2) the provisions of 

Code § 65.2-602 did not apply to toll the two-year limitations 

period. 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. 

 Code § 65.2-601 provides that "[t]he right to compensation 

under this title shall be forever barred, unless a claim be filed 

with the Commission within two years after the accident." 

 On May 26, 1994, Kile filed an application seeking an award 

 

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

designated for publication. 
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of medical benefits and temporary total disability benefits 

commencing December 9, 1994 for an injury by accident arising out 

of and in the course of her employment on June 23, 1992. 

Employer filed an Employer's First Report of Accident on 

September 14, 1994. The commission conducted a hearing on Kile's 

application and, as a result, awarded medical benefits only on 

December 29, 1994. 

 On May 17, 1995, Kile filed a change-in-condition 

application, seeking temporary total disability benefits 

beginning March 3, 1995 and continuing. The commission held that 

this application was time-barred. In so ruling, the commission 

found that the two-year statute of limitations contained in Code 

§ 65.2-601 governed the timeliness of Kile's May 17, 1995 

application for temporary total disability benefits, rather than 

the provisions of Code § 65.2-708, because the commission had not 

entered a prior award of compensation benefits, a prerequisite 

for a change-in-condition application. Kile does not contest 

this ruling on appeal. Therefore, this ruling is binding and 

conclusive upon us. 

 In applying the statute of limitations contained in Code 

§ 65.2-601, the commission ruled that Kile's May 17, 1995 

application was time-barred because it was filed more than two 

years after June 23, 1992, the date of Kile's industrial 

accident. The facts in the record support this finding. 

 Moreover, the commission did not err in ruling that the 
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tolling provisions contained in Code § 65.2-602 did not apply. 

Code § 65.2-602 provides that the two-year statute of limitations 

is tolled where the employer receives notice of the accident, the 

employer fails to file an Employer's First Report of Accident, 

and the employer's conduct prejudices the employee's right with 

respect to filing a timely claim. Bristol Newspapers, Inc. v. 

Shaffer, 16 Va. App. 703, 706-07, 432 S.E.2d 23, 25 (1993). 

 Kile filed a claim for compensation benefits on May 26, 

1994, before the two-year limitations period expired and before 

employer filed its First Report of Accident. Under these 

circumstances, employer's conduct could not have operated to 

prejudice Kile's right with respect to the filing of a claim 

prior to the expiration of the applicable limitations period. 

Thus, the commission did not err in refusing to apply the tolling 

provisions contained in Code § 65.2-602. 

 The commission also found that, even assuming Kile filed a 

timely claim for wage loss, her claim must fail because she did 

not present evidence that she was entitled to compensation for 

incapacity within twenty-four months of her industrial accident. 

 This finding is also supported by the record. The first 

indication in the medical records of total disability did not 

occur until March 3, 1995 when Dr. A. Janati excused Kile from 

work, more than two years after the industrial accident. Up 

until March 3, 1995, Kile was on a light-duty status. In fact, 

she worked for employer in a modified position until that date. 
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Under these facts, Kile failed to prove she sustained wage loss 

within two years from the date of her accident. In Mayberry v. 

Alcoa Bldg. Prods., 18 Va. App. 18, 20-21, 441 S.E.2d 349, 350 

(1994), we held that where an employee files a claim within two 

years from the date of the accident, but establishes entitlement 

only to a medical award, subsequent disability must occur within 

two years from the date of the accident to be compensable. 

 For these reasons, we affirm the commission's decision. 

 Affirmed.