Summary
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
Summary of this case from Safeway Stores, Inc. v. McGowanOpinion
43585 Record No. 761491.
October 7, 1977
Present: All the Justices.
Claim filed under Workmen's Compensation Act more than one year after injury barred although time for filing increased to two years after injury occurred.
(1) Workmen's Compensation — Claim — Time Limitation for Filing Jurisdictional.
(2) Workmen's Compensation — Right to Recover — Special Limitation Part of New Right as well as Remedy.
(3) Workmen's Compensation — Right to Recover Fixed at Time of Injury — Claim Barred when One Year Expires Without Filing although Time for Filing Extended After Injury.
Claimant, suffering a work related injury to his eye, filed his claim under the Workmen's Compensation Act more than one but less than two years after the injury. At the time of the injury, the period under Code Sec. 65.1-87 for filing claim was one year but this time was extended by amendment effective 1 June 1975 to two years. The Industrial Commission held the one year period barred the claim.
1. The time limitation of Code Sec. 65.1-87 is jurisdictional. Failure to file within the period permitted bars the claim. There is no language in the 1975 amendment of the section to indicate the new time limitation was to operate retrospectively. Shanahan v. Pocahontas Fuel Co., 194 Va. 303, 72 S.E.2d 639 (1942) distinguished.
2. The right to recover under the Workmen's Compensation Statute is purely statutory and unknown to the common law. There is a marked distinction between a pure statute of limitations and a special limitation, as here, prescribed by a statute creating a new right. The special limitation is part of the right as well as the remedy and a condition precedent to maintaining the claim.
3. The provisions of the statute inextricably bind the remedy to the right of recovery, the contractual obligations of employer and employee and the employee's substantive right to recover being fixed at the time of the injury, the subsequent amendment being inapplicable to extend the time, and the right to recover being barred by failure to file within one year.
Appeal from an award of the Industrial Commission of Virginia.
Affirmed.
William H. Robinson, Jr. (Alexander H. Slaughter; Aaron M. Levine [D.C.]; McGuire, Woods Battle, on briefs), for appellant.
William O. Snead, III (Brian H. Rhatigan; Carr, Jordan, Coyne Savits, on brief), for appellees.
The question presented in this appeal is whether an employee's claim under the Workmen's Compensation Act is barred by the one-year limitation in effect at the time of his injury when within one year after the accident the limitation period was increased to two years.
On July 25, 1974, Bunion Barksdale sustained a work-related injury to his eye. At that time Code Sec. 65.1-87 (Repl. Vol. 1973) provided that compensation under the Workmen's Compensation Act "shall be forever barred, unless a claim be filed with the Industrial Commission within one year after the accident. . . ." The statute was amended effective June 1, 1975, changing the time within which a claim must be filed to two years after the accident. Barksdale filed his claim more than one year but less than two years after the date of his injury.
Deputy Commissioner Wilhoit of the Industrial Commission ruled that the one-year limitation in effect at the time of Barksdale's injury applied, that the limitation was jurisdictional, and that the claim was barred. On review by the full Commission this ruling was unanimously affirmed.
We have held in numerous cases that the limitation provision of Sec. 65.1-87 is jurisdictional and that failure to file within the prescribed time will bar a claim. Shawley v. Shea-Ball, 216 Va. 442, 445-46, 219 S.E.2d 849, 852 (1975); Coal Company v. Pannell, 203 Va. 49, 122 S.E.2d 666 (1961); Winston v. City of Richmond, 196 Va. 403, 83 S.E.2d 728 (1954). In Binswanger Glass Co. v. Wallace, 214 Va. 70, 197 S.E.2d 191 (1973), we held that the time limitation prescribed in Sec. 65.1-99 for review of an award on the ground of a change in condition was not jurisdictional and could be waived, but again stated that the time limitation of Sec. 65.1-87 for filing an original claim is jurisdictional. And in Allen v. Mottley Construction Co., 160 Va. 875, 170 S.E. 412 (1933), also involving a change of condition, we held that a procedural amendment dealing solely with the remedy would be applied retrospectively, an effect which, as we pointed out therein, differs materially from the effect of an amendment involving a combination of right and remedy, or right alone, where vested rights may be impaired by retrospective application.
Barksdale relies on Shanahan v. Pocahontas Fuel Co., 194 Va. 303, 72 S.E.2d 639 (1952). In that case Shanahan was denied recovery by the Industrial Commission for failure to give notice to his employer within the time prescribed by statute. On appeal we reversed on the ground that the statute had been amended and broadened after the final award of the Commission to apply to "occupational diseases contracted before" as well as after the effective date of the amendment. We held that the amendment dealt solely with the remedy and was by its language intended to apply both retrospectively and prospectively. There is no such language in the 1975 amendment to Sec. 65.1-87.
Barksdale argues that the limitation period in issue is more akin to the procedural statute of limitations in a common law tort action than to a wholly new statutory right of action. We do not agree. The right to recover under the Workmen's Compensation Act, which is not based on negligence and is not barred by common law tort defenses of contributory negligence, negligence of a fellow servant, or assumption of risk, is a purely statutory right unknown at common law. The statute created a new right of action for the benefit of an employee or his dependents for work-related personal injuries or death without regard to the employee's negligence. Griffith v. Raven Red Ash Coal Co., 179 Va. 790, 796, 20 S.E.2d 530, 533 (1942).
We have long recognized that there is a marked distinction between a pure statute of limitations and a special limitation prescribed by a statute creating a new right. See Branch v. Branch, 172 Va. 413, 417, 2 S.E.2d 327, 329 (1939). The special limitation is part of the right as well as the remedy, an integral part of the statute, and a condition precedent to maintenance of the claim. American Mutual, Etc. v. Hamilton, 145 Va. 391, 403, 135 S.E. 21, 24 (1926); Leesburg v. Loudoun Nat. B'k, 141 Va. 244, 247, 126 S.E. 196, 197 (1925); Commonwealth v. Deford, 137 Va. 542, 551, 120 S.E. 281, 284 (1923). See Continental Casualty Co. v. The Benny Skou, 200 F.2d 246, 248 (4th Cir. 1952), Continental Cas. Co. v. Thorden Line, 186 F.2d 992, 997 (4th Cir. 1951). As we said in Winston v. City of Richmond, supra, 196 Va. at 407, 83 S.E.2d at 731, "[t]he right to compensation under the workmen's compensation law is granted by statute, and in giving the right the legislature had full power to prescribe the time and manner of its exercise." Thus the limitation is a part of the new substantive right.
The Virginia Workmen's Compensation Act is based upon the Indiana statute, so that the construction placed upon the Indiana law by the courts of that state merits our consideration. See Hoffer Bros. v. Smith, 148 Va. 220, 138 S.E. 474 (1927). In Railway Express Agency v. Harrington, 119 Ind. App. 593, 88 N.E.2d 175 (1949), where an amendment to the Indiana statute shortened the limitation period within which claims must be filed, it was held that the rights and duties of the parties were fixed by the law in effect at the time of injury and were not affected by the subsequent amendment. Moreover, in McCrater v. Stone Webster Engineering Corp., 248 N.C. 707, 104 S.E.2d 858 (1958), an amendment to the North Carolina workmen's compensation statute changing the limitation period from one to two years was held to be inapplicable to a claim arising from an injury received before the effective date of the amendment. The court ruled that the time limit in effect at the date of the accident was a part of the employee's substantive right of recovery which could not be enlarged by subsequent amendment.
Although we acknowledge that the Workmen's Compensation Act should be liberally construed in favor of the workman, we must necessarily conclude that in this case the provisions of the statute inextricably bind the remedy to the right of recovery. Accordingly, we hold that the contractual employer and employee and the employee's substantive right to recover were fixed at the time of Barksdale's injury, so that the subsequent amendment to Code Sec. 65.1-87 did not apply to his claim.
For the reasons assigned, therefore, the award of the Industrial Commission will be
Affirmed.