COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, McClan ahan and Senior Judge Fitzpatrick Argued at Salem, Virginia

SAM MOORE FURNITUR E INDUSTRIES AND CHARTER OAK FIRE INSURANCE COMPANY MEMORANDUM OPINION * BY v. Record No. 0685-07-3 JUDGE LARRY G. ELDER FEBRUARY 26, 2008 JERRY ALLEN SMITH

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Anne C. Byrne (Warre n H. Britt; Warren H. Bri tt, P.C., on brief), for appellants. P. Heith Reynolds (Wolfe, Will iams & Rutherford, on brief), for appellee.

Sam Moore Furniture In dustries and the Charte r Oak Fire Insurance Company (hereinafter collectively “employer”) appeal from a decision of the Worker s’ Compensation Commission awarding benefits to Jerry Allen Smith for a shoulder injury. On appeal, employer contends the commission erroneously conclude d Smith’s shoulder claim was not barred by the statute of limitations in Code § 65.2-601 and, alternatively, that even if Smit h’s shoulder injury was properly held to be compensable, he was not entitled to temporary total disability benefits for the disputed period. We hold credible eviden ce in the record suppo rted the commission’s decision that the statute of limitations did not bar Sm ith’s shoulder claim. We hold further that credible evidence supported the finding that claimant’s temporary total disability status was ongo ing. Thus, we affirm the commission’s award of benefits.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - I. On appeal, we defer to the co mmission in its role as fact finder. VFP, Inc. v. Shepherd , 39 Va. App. 289, 292, 572 S. E.2d 510, 511 (2002). The factual findings of the commission are binding on appeal if supported by credible evidence. Tomes v. James City County Fire Dep’t , 39 Va. App. 424, 430, 573 S.E. 2d 312, 315 (2002). The co mmission’s “conclusions u pon conflicting inferences, legitimately drawn from proven fa cts, are equally bindin g on appeal.” Watkins v. Halco Eng’g,
Inc. , 225 Va. 97, 101, 300 S. E.2d 761, 763 (1983).
A.
STATUTE OF LIMITATIONS Code § 65.2-601 requires that, in order for an injured employee to avail himself of the benefits of the Workers’ Compensation Act, he mu st file a claim with th e commission within two years of the accident. Absent a recognized exception to the st atute of limitations, see, e.g. , Tuck v. Goodyear Tire & Rubber Co. , 47 Va. App. 276, 28 4-85, 623 S.E.2d 433, 437 (2005) (discussing tolling, estoppel, and doctri ne of imposition), the time ly filing of a claim is jurisdictional, Barksdale v. H.O. Engen, Inc. , 218 Va. 496, 497, 237 S. E.2d 794, 795 (19 77). Whether a claim is barred by the statute of limitati ons is ultimately a ques tion of law. Tuck , 47 Va. App. at 285, 623 S.E.2d at 437. However, as we recently reiterated, “[w]heth er the information filed with the commission is sufficient to constitute a timely filed claim for a pa rticular injury is a qu estion of fact, and the commission’s finding will not be disturbed on appeal if supporte d by credible evid ence.” Corporate Resource Mgmt. Inc. v. Southers , 51 Va. App. 118, 127, 655 S.E. 2d 34, 38 (2008) (en banc). “Statutes of limitations ‘are designed to su ppress fraudulent and st ale claims from being asserted after a great laps e of time, to the surprise of the parties, when th e evidence may have been lost, the facts may have become ob scure because of defect ive memory, or the witn esses have died or- 3 - disappeared.’” Id. (quoting Street v. Consumers Mining Corp. , 185 Va. 561, 575, 39 S.E.2d 271, 277 (1946)). Specifically in th e context of workers’ compensati on, the Supreme Court has noted several “compelling” reasons for requiring a claimant to file a timely claim for all injuries sustained in a pa rticular accident—the need of the employer to “determin[e] whether or not there was in fact an injury, the nature and extent thereof, and if related to the accident” [and] . . . to obtain “the treatment necessary to effect a cu re of the claimant and to minimize the em ployer’s liability.” Id. at 128, 655 S.E.2d at 39 (quoting Shawley v. Shea-Ball Constr. Co. , 216 Va. 442, 446-47, 219 S.E.2d 849, 853 (1975)). The Supreme Court applied th ese principles in Shawley , in which it upheld the commission’s finding that a timely claim for injuri es to an employee’s left ankle and right hip did not preserve a claim for injuries to his back and right ankl e. 216 Va. at 446-47, 219 S.E.2d at 853. In Shawley , no timely claim was f iled for injuries to th e back and right ankle, and in addition, the medical records gave no indication of any in juries to the back and righ t ankle until after the statute of limitations had passed. Id. at 443-47, 219 S.E.2d at 851-53. Under those circumstances, the Court held, credible evidence supported the comm ission’s application of th e statute of limitations to bar the claim. Id. at 444, 219 S.E.2d at 851. We recently applied these principles in Southers , 51 Va. App. at 121, 655 S.E.2d at 35, in which we upheld the commissi on’s finding that a timely claim for a shoulder injury 1 preserved a claim for a neck injury on the fa cts of that case. In Southers , unlike in Shawley , the medical records documented chronic problems with both the shoulder an d the neck following the accident. Id. at 121-25, 129, 655 S.E.2d at 35-37, 39. Treating me dical personnel originally purported to rule out

1 Southers did not file a formal claim, but she endorsed an agreement to pay benefits, prepared by her employer’s carr ier, which served as the ba sis for the commission’s award. Southers , 51 Va. App. at 121, 132, 655 S.E.2d at 35, 41.- 4 - any problem with the neck, and Southers learned on ly after obtaining a new treating physician that her chronic shoulder problems resulted from an inju ry in her neck that ca used more pain in her shoulder than in her neck. Id. at 123-24, 131, 655 S. E.2d at 36-37, 40. Du e in large pa rt to an extended break in cl aimant’s medical tr eatment resulting from a covera ge dispute between employer and its carrier, the neck injury diagnosis was made only after the statute of limitations had expired. Id. at 123, 131, 655 S. E.2d at 36, 40. On th ose facts, we held that Southe rs’s timely f iling of a claim for an injury to her shoul der was sufficient to satisfy the statut e of limitations for a neck injury, as well, because claimant’s timely claim for a left shoulder injury and her consistent complaints to her medical providers of pain in her left shoulder radiating into her neck gave [the employer] all the notice it needed to meet the objectives Shawley termed “compelling” reasons requiring the timely filing of a claim for all injured body parts. [The employer] had timely notice of claimant’s assertion that she suffered a significant blow to her left sh oulder area, and claimant received timely medical attention for the affected, interrelated body parts and symptoms. Id. at 130-31, 655 S.E.2d at 40. In Smith’s case, the body part for which Sm ith sought coverage after expiration of the statute of limitations was his shoulder, wher eas employer had previously accepted as compensable only an injury to Smith’s elbow. In Smith’s case, however, in marked contrast to Shawley and Southers , Smith had filed two timely claims for benefits that listed his injury as being not only to his “right elbow” but also to his “[ r]ight arm.” Although the stipul ations that Smith and employer entered into and the awards the co mmission approved specifically co vered only the right elbow, the body part reported to ha ve sustained a direct blow in th e accident, the commission unanimously recognized the timeliness of Smith’s filing of claims for injuries to both his right elbow and his right

arm.- 5 - The only articulated dispute among the commissioner s was whether Smith’ s timely filing of a claim for injury to his right arm was sufficient to constitute timely filing of a claim for injury to his right shoulder. In light of the medical evidence and our reasoning in Southers , we hold credible evidence in the record supports the commission’s finding that it was. 2 When Smith’s treating physician, Dr. Drew Kiernan, was asked on deposi tion why he opined a causal relationship existed between Smith’s original elbow in jury and subsequent shoulder prob lems, he testif ied as follows: [I]t’s very common to have multiple levels of injury in the same limb when some forceful thing occurs. Obviously not just one tiny piece of the limb, whether it’s one bo ne or one tendon, is loaded excessively when some physical event happens, whether it’s a fall from a ladder or a slipped wrench or getting h it by a car. There[ ] . . . are multiple things that are stressed. So in reviewing things with [Mr. Smith], particularly in more rece nt visits, it seemed . . . that all these symptoms, whether it was related to the sh oulder or the elbow, began near the same time and seemed to be temporally related to what he described happening at wo rk. . . . [I]t seemed that the problems in general with the right upper extremity began at or about the same time. So I believe that the event that ha ppened then was responsible not only for his el bow pain, but his shoulder pain. . . . [A]lso . . . , as you know from the r ecords, his elbow pain has remained a problem despite my previous treatment. It is known that shoulder pain can radiate fu rther down the limb toward the elbow or even beyond the elbow in terms of what a patient perceives.

2 On brief, employer contends the commission held that, on ce employer “responded to 20-Day Orders on February 13, 20 04[,] that it would accept Smit h’s right shoulder condition,” it was “estopped from defending the claim” and th at the commission refu sed to consider its subsequent “20-day order [filed] on September 8, 2004[, ] denying the claim for benefits as being unrelated to the original accident.” We believe em ployer misconstrues the commission’s opinion. We interpret the commission’ s opinion as referring to the fact th at employer did not assert a statute of limitations defense and origin ally accepted the shoulder disab ility as a compensable consequence of the elbow injury, paying at least one day of temporary disabi lity benefits. Wh en Smith filed a later claim seeking ongo ing temporary total disa bility and medical benef its for surgery on his shoulder, employer challenged th e causal relationship of the sh oulder condition to the industrial accident but still did not assert a statute of limitations defense. The commis sion noted that the deputy commissioner, in his opinion of March 1, 2005, was the first to raise the statute of limitations issue. Finally, the comm ission considered the statute of lim itations issue on th e merits, holding Smith timely filed a claim for th e arm including the shoulder. The commission then remanded to the deputy for consideration of employer’s other defenses, including its claim that the shoulder injury was “not related to the June 1, 1999, compensable injury .” Thus, the comm ission clearly did not hold employer was estopped from defending the claim.- 6 - So it’s possible actually that his problem in th e shoulder all of this time to some degree has explaine d his elbow pain. And that would explain further why he didn’t respon d very well to my treatment of his elbow.
* * * * * * * . . . [W]hen pieces of the puzzle start coming together and you have a little bit mo re information, partic ularly about how people respond to treatment, on e may change their opin ion about how things are related. (Emphases added). Thus, Dr. Kier nan opined not only that the injuries to the elbow and shoulder were sustained at the same time but al so that the elbow and shoulder were part of the same limb , the “right upper extremity” or arm, a body part for which Smith had f iled a timely clai m. Further, Dr. Kiernan opined that the injury to the shoulder could have been a contributing cause of Smith’s elbow pain from the begi nning and could explain why Smith’s elbow problems persisted despite significant treatment targeting the elbow. See Southers , 51 Va. App. at 123- 24, 655 S.E.2d at 36-37 (involving delayed but definitive medical opinion th at pain in shoulder, bo dy part for which timely claim was filed, in fact resulted fr om injury to neck , body part for which clai m was not timely filed). Finally, here, as in Southers , Shawley’s “compelling” reasons en titling an employer to timely notice of an injury to a particular body part have be en met: Although neither Smith nor employer was aware of a specifi c injury to Smith’s shoulder during th e statutory period, 3 “[employer] had timely notic e of [Smith’s] assertion that [he] su ffered a significant blow to [his right elbow and arm,]” of which the record supports a finding th at the shoulder was a part, and Smith “received timely medical attention for the a ffected, interrelated body parts and symptoms” as they manifested themselves. Id. at 130-31, 655 S.E.2d at 40. Given Smith’s ti mely filing of a claim for an arm injury, which encompassed the shoulder, Smith should not be penali zed for the fact that

3 The first mention of a right shoulder probl em appears in an office note of Smith’s treating physician for an examination conducted two years and approxima tely two weeks after Smith’s industrial accident.- 7 - his compensable injury did not manife st itself as shoulder pain until a few weeks after the statute of limitations had expired. The fact that employer did not learn at an earlier time that Smith’s shoulder was injured in his compensable accide nt of June 1, 1999, was not th e fault of Smith, who was also unaware of the injury. The record supports the commission ’s finding that employer did not “experience any ‘surprise’ by th e present claim” and the commission ’s rejection of the idea that “claimant sat on his rights with respect to the pres ent claim” where he filed “several timely claims for an arm injury, followe d by lengthy compensable treatment.” Em ployer also wa s fully permitted to contest causation when claimant sought be nefits specifically for his shoulder. Id. at 131, 655 S.E.2d at 40. Thus, here, as in Southers , “[a]pplying the statute of limitations on these facts . . . would provide a windfall to [employe r] and impose upon clai mant a forfeiture not required by either the statute or controlling cas e law interpreting it.” Id. at 133, 655 S.E.2d at 41.
B.
ENTITLEMENT TO ONGOING TEMPORARY TOTAL DISABILITY BENEFITS Employer contends that, if the shoulder claim is compensable, claimant failed to establish ongoing total disabilit y after March 14, 2005, caus ally related to his shoulder because he failed at the subsequent hearing on April 20, 2006, to su bmit medical evidence showing ongoing total disability. We hold credib le evidence supports the commission’s finding that claimant’s disability was ongoing at the time of the April 20, 2006 heari ng. The commission found ongoing total disability from August 9, 2004, and continuing. Alth ough employer disputes only claimant’s entitlement to compensati on from March 14, 200 5, and continuing, we examine the evidence relating to the period beginning August 9, 20 04, because the evidence for these periods is interrelated. The commission’s determ ination regarding the na ture and extent of di sability is a question of fact and is binding on appeal if su pported by credible evidence. See, e.g. , Ga. Pac. Corp. v.- 8 - Dancy , 17 Va. App. 128, 133-34, 435 S.E.2d 898, 901 (1993). Determinations of ongoing disability, like questions of medical causation, need not be based solely on medical evidence. See Dollar Gen’l Store v. Cridlin , 22 Va. App. 171, 176, 468 S.E.2d 152, 154 (1996) (applying principle in context of determinin g causation). Ongoi ng disability, like causation, may be proved by either direct or circumstantial evidence, including medical evidence or “the testimony of a claimant,” if found credible by th e commission. Id. Dr. Kiernan began treating claima nt in 2000 for his 1999 inju ry by accident. That treatment included claimant’s right elbow, for which he had surger y in 2000 and 2002, an d, subsequently, his right shoulder. On August 9, 2004, when claimant saw Dr. Kiernan for reevaluation of his right shoulder, Dr. Kiernan opin ed claimant had a torn rotator cuff, reiterated his previous opinion that claimant should undergo surgery on his right shoulder, and stated, “N o work at this point.” When claimant saw Dr. Kiernan on Ma rch 14, 2005, Dr. Kiernan obse rved the appointment was for evaluation of claimant’s right elbow, but he ex amined claimant’s right shoulder, as well. Dr. Kiernan noted clai mant reported “consi derable disability remains due to right shoulder pain with increasing pain and consid erable weakness” and that claimant “has been unabl e to participate in any gainful employment due to these symptoms.” Dr. Kier nan also indicated claimant had undergone “[n]o interval change in his medi cal status.” Dr. Kiernan record ed ongoing elbow tenderness, as well, but said this was secondary to claimant’s shoulder pain. Finally, Dr. Kiernan opined that claimant “may return to regular work as it relates to the right elbow, though this will not be possible due to his severe right shoulde r pain and limited function.” Employer concedes this ev idence establishes disability through March 14, 2005, but contends the evidence in the reco rd fails to support a finding of disability after that date. We disagree. At the hearing before the deputy commissi oner on April 20, 2006, claimant test ified that when he last saw Dr. Kier nan in March 2005, Dr. Kiernan told him he could not return to work until- 9 - after he underwent shoulder surgery and that “there wasn’t [any] us e in [claimant’s] coming back [to see Dr. Kiernan] until” he was able to have the surgery because there was “[n]othing [Dr. Kiernan] could do.” Claima nt testified he had been unable to have the recommended surgery because “compensation wo uldn’t let me,” that compensation would not approve any additional visits to Dr. Kiernan, and that “[compensation] hadn’t paid for the ones they owe [D r. Kiernan] for now.” Claimant testified on April 20, 2006, that he was unable to do “even li ght duty work,” that Dr. Kiernan “told [claimant] he didn’t want me doing [anything],” and that no one had “ever released [him] ba ck to work.” The medical evidence and “cl aimant’s uncontradicted testim ony,” including his statement “that he was never released to work capacity,” which the commission found credible, supported the commission’s finding that “there was no change in the claimant’s conditio n and [that] his treatment remained at a stat us quo” until he co uld “undergo the su rgery recomme nded by Dr. Kiernan,” which had been “delayed due to the pende ncy of the present litigation.” Th us, we affirm the commission’s decision that claima nt was entitled to temporary total disability benefits from March 15, 2005, and continuing.
II. For these reasons, we hold cr edible evidence in the record supported the commission’s decision that the statute of limitations did not ba r Smith’s shoulder claim. We hold further that credible evidence supporte d the finding that claima nt’s temporary total disa bility status after March 15, 2005 was ongoing. Thus, we affi rm the commission’s award of benefits. Affirmed.- 10 - McClanahan, J., dissenting. I see no appreciable distinction between th is case and Shawley v. Shea-Ball Construction
Co. , 216 Va. 442, 219 S.E.2d 849 (1975). Our decision in Corporate Resource Management Inc. v. Southers , 51 Va. App. 118, 655 S.E.2d 34 (2008) (en banc), does not control this case. In Southers , the commission found that it was “ not a case involving injuries to two separate body parts but the same injury .” Id. at 125, 655 S.E.2d at 37 (emphasis in original). But here, the commission found two injuries to separate body parts, stating it is “evident that the claimant injured his elbow in the original accident” an d that later claims were filed for an arm injury , which the commission interpreted as includin g the shoulder injury. Extending the holding in Southers to Smith completely underc uts the rationale given by the en banc majority for the exception to Shawleycreated by Southers

. As we noted in Southers , the Supreme Court of Virginia in Shawley “found relevant both the failure to file a formal claim listing injuries to the back and right ankle prior to expiration of the statute of limitations and the absence of any mention of injury to those body parts in the medica l records prior to expiration of the statute of limitations.” Id. at 129, 655 S.E.2d at 39 (emphasis in original). In Southers , unlike in Shawley , the medical records documented chronic problems with both the shoulder and the neck following the accident. Id. at 129-30, 655 S.E.2d at 39-40. In contrast here , Smith failed to file a formal claim for injuries to his shoulder, a separate injury, and there is an absence of any mention of injury to or pain from the sh oulder prior to the expiration of the statute of limitations. I, therefore, respectfully dissent.