Opinion
49520 Nos. 0002-94-1 and 0142-94-1
Decided June 8, 1994
(1) Workers' Compensation — Statute of Limitations — Standard. — Where an employer has received notice of an accident resulting in a compensable injury to the employee, has paid compensation or wages to the employee during the incapacity for work, and such conduct by the employer has operated to prejudice the rights of the employee, the statute of limitations is tolled during the duration of such payment; the employee's rights are not prejudiced if the employee has received after the accident a workers' compensation guide.
(2) Workers' Compensation — Statute of Limitations — Standard. — An employee's receipt of a workers' compensation guide does not retrospectively eliminate the tolling of the statute of limitations which has already occurred; the receipt of the guide only eliminates the prejudice which occurs thereafter.
(3) Workers' Compensation — Statute of Limitations — Standard. — The tolling of the statute of limitations, otherwise occurring, is only for the duration of the payment of wages or compensation by the employer.
(4) Workers' Compensation — Appellate Review — Standard. — A determination by the commission regarding justification for medical treatment is a question of fact and is binding on appeal.
Sidney H. Kelsey, Jr., on brief, for appellant.
William E. Baggs, on briefs, for appellee.
SUMMARY
Employer appealed the decision of the Workers' Compensation Commission holding that the statute of limitations had not run on employee's claim.
The Court of Appeals affirmed, holding that the employee's receipt of a workers' compensation guide did not affect the tolling of the statute of limitations, which had occurred before the employee received the guide.
Affirmed.
OPINION
In this appeal, the employer contends the commission erred in holding that the statute of limitations had not run on the employee's claim. We hold that the employee's receipt of a workers' compensation guide did not affect the tolling of the statute of limitations which occurred before the employee received the guide.
(1) Where (1) "an employer has received notice of an accident resulting in compensable injury to an employee," (2) "has paid compensation or wages to such employee during incapacity for work," and (3) "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," the statute of limitations under the Workers' Compensation Act is tolled for the "duration of such payment." Code Sec. 65.2-602; Bristol Newspapers, Inc. v. Shaffer, 16 Va. App. 703, 706, 432 S.E.2d 23, 25 (1993). The employee's rights "shall be deemed not prejudiced" if "he has received after the accident a workers' compensation guide." Code Sec. 65.2-602.
The injury in this case occurred on February 1, 1990. The employer received notice of the accident and, although it did not file a first report of accident, paid compensation to the employee through April 23, 1990. The employee did not file a claim with the commission until April 17, 1992. The commission found that the employer's payment of compensation prejudiced the employee's rights until she received a workers' compensation guide on May 10, 1991.
(2) The employee's receipt of the guide did not retrospectively eliminate the tolling of the statute of limitations which had already occurred. Tolling of the statute is initiated by the concurrence of three events: "notice, specified conduct and prejudice." Bristol Newspapers, Inc., 16 Va. App. at 707, 432 S.E.2d at 25; see also Code Sec. 65.2-602. Until the employee received the guide, these three events concurred, and tolling was initiated. The receipt of the guide only eliminated the prejudice to the employee thereafter.
(3) The tolling of the statute of limitations is, however, affected by another factor. The statute is only tolled for the "duration" of the payment of compensation by the employer. Code Sec. 65.2-602; Bristol Newspapers, Inc., 16 Va. App. at 707, 432 S.E.2d at 25. The employer paid compensation through April 23, 1990, and the statute of limitations was tolled only until then, as opposed to May 10, 1991, as the commission held. See id.
This further limitation does not affect the award in this case. The employee filed her claim within two years of the last date for which compensation was paid and within the period of limitation imposed by the statute. See Code Sec. 65.2-601. Therefore, in spite of the commission's miscalculation of the period during which the statute of limitations was tolled, the commission correctly concluded that the employee's claim was not barred by the statute of limitations.
(4) Finally, the remaining issues are without merit. Credible evidence supports the commission's determination that certain specified medical treatment was justified and that certain other treatment was not. This determination by the commission, resolving questions of fact, is conclusive and binding. Code Sec. 65.2-706. We may not disturb it. Jules Hairstylists, Inc. v. Galanes, 1 Va. 64, 69, 334 S.E.2d 592, 595 (1985).
For these reasons, the award of the commission is affirmed.
Affirmed.