                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Coleman and Willis


BRENDA W. GROSS
                                             MEMORANDUM OPINION*
v.   Record No. 1081-00-2                         PER CURIAM
                                               OCTOBER 10, 2000
WYETH-AYERST LABORATORIES AND
 CIGNA INSURANCE COMPANY


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Brenda W. Gross, pro se, on brief).

             (Patricia C. Arrighi; Taylor & Walker, P.C.,
             on brief), for appellees.


     Brenda W. Gross contends that the Workers' Compensation

Commission erred in finding that (1) her claim alleging a neck

injury arising out of an October 8, 1996 injury by accident was

barred by the applicable statute of limitations; and (2) her

neck symptoms were not causally related to her compensable

October 8, 1996 injury by accident.     Although her brief contains

six other questions presented, the first two issues were the

only issues considered by the commission in its review opinion.

Accordingly, those are the only issues we will address on

appeal.




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     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.       See Rule 5A:27.

     "The right to compensation under [the Workers' Compensation

Act] shall be forever barred, unless a claim be filed with the

Commission within two years after the accident."      Code

§ 65.2-601.

          [I]t is the intent of Code § 65.1-87 that
          within [the time prescribed by the section,]
          an employee must assert against his employer
          any claim that he might have for any injury
          growing out of the accident. . . . Failure
          to give such notice within [the statutorily
          prescribed period] would seriously handicap
          the employer . . . in determining whether or
          not there was in fact an injury, the nature
          and extent thereof, and if related to the
          accident. The reason for the limitation
          . . . is a compelling one.

Shawley v. Shea-Ball Constr. Co., 216 Va. 442, 446, 219 S.E.2d

849, 853 (1975) (construing former Code § 65.1-87).

     On appeal, we view the evidence in the light most favorable

to the prevailing party below.     See R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

Factual findings made by the commission will be upheld on appeal

if supported by credible evidence.       See James v. Capitol Steel

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).

     The commission denied Gross's claim for a neck injury on

the grounds that it was barred by the applicable statute of




                                 - 2 -
limitations and that employer was not estopped from raising the

defense.   In so ruling, the commission found as follows:

           [Gross] initially claimed injuries to her
           left elbow and shoulder. On December 10,
           1996, she signed [a Memorandum of Agreement]
           reflecting injuries to her left arm, hand,
           elbow, and shoulder. Accordingly, the
           Commission entered an award for those
           injuries. . . . [T]here has not been an
           award for a neck injury. [Gross] did file a
           Claim for Benefits on September 10, 1998,
           wherein a neck injury was alleged in an
           attached letter. That claim was heard on
           November 12, 1998, but the alleged neck
           injury was not pursued. Deputy Commissioner
           Mercer's December 16, 1998, Opinion did not
           address the alleged neck injury. The
           November 12, 1998, Hearing and the December
           16, 1998, Opinion resolved the September 10,
           1998, claim since no issues alleged in that
           claim were reserved for a later
           determination. The Claim for Benefits for
           the neck injury, which is the subject of
           this proceeding, was filed on February 9,
           1999. The injury by accident occurred in
           October 1996. This claim is untimely as it
           relates to an alleged neck injury, and the
           Commission lacks subject matter
           jurisdiction. . . .

                Contrary to [Gross's] argument, her
           September 10, 1998, Claim for Benefits did
           not preserve a neck injury within the
           statute of limitations. This claim sought
           temporary total disability benefits from
           August 11 to August 13, 1998. At the
           November 12, 1998, Hearing, the parties
           agreed that the sole issue concerned alleged
           disability. There was no mention of a neck
           condition, nor did [Gross] present evidence
           of a neck injury. . . . While the December
           16, 1998, Opinion did not make any finding
           regarding a neck condition, [Gross] did not
           appeal this decision. Also, the alleged
           neck claim was not reserved or continued.
           The Commission does not try cases piecemeal

                               - 3 -
            and did not defer the issue of the neck
            condition to a later Hearing. The effect is
            that [Gross] did not pursue a claim for an
            alleged neck injury before February 9, 1999.

            [T]he record does not reflect that the
            doctrine of imposition should estop the
            employer from alleging the statute of
            limitations defense. [Gross] had not shown
            by clear, precise, and unequivocal evidence
            that she detrimentally relied upon the
            employer's actions and statements to refrain
            from filing a claim. . . . [E]mployer
            timely sent her [a Memorandum of Agreement],
            Supplemental [Memorandum of Agreement], and
            an Agreed Statement of Fact; it filed all
            necessary reports; and it paid compensation
            and medical benefits. This evidence does
            not indicate that the employer acted with
            fraudulent intent or concealed a material
            fact. Although the insurance adjuster
            prepared the [Memorandum of Agreement],
            [Gross] voluntarily read and signed it.

     The commission's factual findings are supported by credible

evidence in the record.   The only injuries included in the

Memorandum of Agreement filed on June 6, 1997 were to Gross's

left arm, left hand, left elbow, and left shoulder.    Although

Gross mentioned a neck injury in her September 8, 1998 letter

attached to her September 10, 1998 Claim for Benefits, she did

not pursue a claim for a neck injury at the November 12, 1998

hearing.    Moreover, the December 16, 1998 opinion did not

address the issue whether Gross had sustained a neck injury as a

result of her compensable accident.     Gross did not appeal that

decision.   Thus, Gross's Claim for Benefits for a neck injury

filed on February 9, 1999, more than two years after her October



                                - 4 -
8, 1996 compensable accident, was untimely.   Furthermore, we

agree with the commission that the record failed to reveal that

employer took any actions that would have estopped it from

raising the statute of limitations defense.

     In Shawley, the Supreme Court held that the commission

lacked subject matter jurisdiction to award benefits for injury

to the employee's right ankle and back, where the only injuries

for which the employee filed a timely claim were to his left

ankle and right hip.   See 216 Va. at 443-44, 446-47, 219 S.E.2d

at 851-53.   The Court has also held that "[j]urisdiction

[ordinarily] . . . cannot be conferred on the Commission by

consent" and that it comes into being "when 'a claim [is] filed'

within two years after the accident."   Stuart Circle Hosp. v.

Alderson, 223 Va. 205, 208-09, 288 S.E.2d 445, 447 (1982).

Accordingly, the commission lacked subject matter jurisdiction

to award benefits for a neck injury.

     Because our ruling on the statute of limitations issue

disposes of this appeal, we need not address the causation

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

                                                            Affirmed.




                               - 5 -
