                     COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Agee and Senior Judge Coleman
Argued at Salem, Virginia


FLEETWOOD HOMES OF VIRGINIA, INC. AND
 LUMBERMEN'S UNDERWRITING ALLIANCE
                                              MEMORANDUM OPINION* BY
v.   Record No. 2236-00-3                      JUDGE ROBERT P. FRANK
                                                   JUNE 5, 2001
PATRICIA S. McNEAL


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Monica L. Taylor (Dale W. Webb; Gentry,
          Locke, Rakes & Moore, on brief), for
          appellants.

          No brief or argument for appellee.


     Fleetwood Homes of Virginia, Inc., (employer) appeals the

Workers' Compensation Commission's (commission) finding that

Patricia McNeal's (claimant) claim for benefits for injury to

her neck was not barred by the statute of limitations.       We find

that the commission erred in its application of the statute of

limitations and reverse the award.

                            I.   BACKGROUND

     On October 2, 1987, claimant sustained an injury during her

employment as an assembler with employer, a mobile home

manufacturer.   The initial diagnosis by Dr. Francis Amos was

"local" contusions and abrasions.     He ordered an x-ray to

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
determine whether claimant had fractured a rib.   On October 5,

1987, Dr. Amos reported that claimant was "sore along the right

lateral rib cage" and "over the right line crest."   He also

noted that she had "extreme tenderness on the dorsum of the

right shoulder."    His diagnosis was "soreness secondary to

trauma to the right side."   On October 12, 1987, Dr. Amos had

the x-ray results, which indicated claimant had a fractured rib.

     On October 14, 1987, claimant was examined by Dr. Charles

Bray, an orthopedist.   He wrote that claimant sustained "soft

tissue injuries except the fractured rib."

     Employer accepted the claim as compensable and claimant

signed a memorandum of agreement as to the payment of

compensation.   The memorandum of agreement described the injury

as a "bruised shoulder & ribs."   On November 19, 1987, the

commission entered an award pursuant to the memorandum of

agreement, which entitled claimant to benefits beginning on

October 10, 1987.

     Claimant returned to her pre-injury work on November 4,

1987, and the compensation benefits were terminated under an

agreed statement of fact.

     Claimant then relocated to Pennsylvania, where she

continued to work for employer.   There, she was treated by

Dr. J. Paul Lyet, an orthopedist, who, on April 28, 1988,

diagnosed her with "post traumatic muscle imbalance" of the

right shoulder and "secondary rotator cuff tendonitis and

                                - 2 -
chronic impingement."   Claimant received benefits pursuant to a

supplemental award from April 6, 1988 to May 2, 1988, when she

returned to work for employer.

     On December 27, 1988, Dr. Lyet communicated his findings to

employer's insurance adjuster and stated that claimant

"certainly" had "permanent bone and joint pathology which" would

"most likely cause problems at a later time."

     Claimant received further treatment from Dr. Stoner, a

chiropractor.   By her account, she did not want to pay for

further chiropractic care and requested permission to see

another doctor.   On April 6, 1994, employer's insurance adjuster

directed claimant to see Dr. Balog, an orthopedist.   On October

3, 1994, he diagnosed claimant with "cervical sprain with

moderate right sided cervical radiculitis and . . . some degree

of right shoulder subacromial bursitis," which he related to

"her injury in question several years" before.   On December 5,

1994, Dr. Balog referred claimant to Dr. Santo, an

anesthesiologist, for "trial of cervical epidural" steroid

injections.   On January 30, 1995, Dr. Balog referred claimant to

Dr. Stoner for treatment of the cervical radiculitis.

     In September 1994, claimant suffered a second accidental

injury during the course of her employment with employer.     The

second accident involved injury to her lower back and left leg.

She was treated by Dr. Santo and Dr. Stoner for these injuries.



                                 - 3 -
     On August 5, 1998, claimant was evaluated by Dr. Lewis

Irwin, a pain management specialist, who indicated claimant's

"upper body pain" was "initiated by trauma received [eleven]

years before."

     On October 8, 1998, ten years after the initial injury,

claimant filed a claim for benefits that requested payment of

incurred medical and mileage expenses for treatment of her neck

injury by Dr. Balog, Dr. Santo, and Dr. Stoner.

     On April 8, 1999, claimant testified before the deputy

commissioner.    The deputy commissioner questioned claimant about

the neck injury and the following exchange occurred:

               Q: Okay. Now, was the neck pain
          immediate or did it start later or when did
          you start having the neck pain?

               A: The whole thing that I have right
          now I had then but Dr. Amos, he did, that
          day, he said it was bruised.

                 Q:   That day being when?

                 A:   The day I went to him, October 2.

                 Q:   The day of the accident?

                 A:   Yes.

                 Q:   Did you have neck pain that day?

               A: My whole upper part of my body was
          hurting.

               Q: Okay. So to answer your question
          though, did you have neck pain that day?

               A: That was a long time ago, but I
          would say, yeah. I mean, it all hurt. It
          still hurts.

                                 - 4 -
     On April 9, 1999, the deputy commissioner awarded claimant

benefits, finding that the treatment of claimant's neck was

causally related to the October 2, 1987 accident.    On August 14,

2000, the full commission affirmed the deputy commissioner's

ruling with Commissioner Tarr dissenting.

                          II.    ANALYSIS

     On appeal, employer contends the commission erred in

finding that claimant's claim for injury to her neck was not

barred by the two-year statute of limitations.    We agree and

reverse the award of the commission.

     "Pursuant to Code § 65.2-706(A), an award of benefits by

the Commission upon review 'shall be conclusive and binding as

to all questions of fact.'"     A New Leaf, Inc. v. Webb, 257 Va.

190, 196, 511 S.E.2d 102, 104 (1999).

     Code § 65.2-601 states, "The right to compensation under

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

the Commission within two years after the accident."

               During this period, the employee must
          "assert against his employer any claim that
          he might have for any injury growing out of
          the accident." Shawley v. Shea-Ball Constr.
          Co., 216 Va. 442, 446, 219 S.E.2d 849, 853
          (1975) (emphasis added); Mayberry v. Alcoa
          Bldg. Prods., 18 Va. App. 18, 20, 441 S.E.2d
          349, 350 (1994). Code § 65.2-601 is
          jurisdictional and failure to file within
          the allotted time bars the claim. Mayberry,
          18 Va. App. at 20, 441 S.E.2d at 350.

Lynchburg Foundry Co. v. McDaniel, 22 Va. App. 307, 310, 469

S.E.2d 85, 87 (1996).

                                 - 5 -
               However, Code § 65.2-708(A) permits the
          commission, "on the ground of a change of
          condition," to "review any award and on such
          review . . . make an award ending,
          diminishing or increasing the compensation
          previously awarded," provided that "[n]o
          such review shall be made after twenty-four
          months from the last day for which
          compensation was paid, pursuant to an award
          under this title, except: (i) thirty-six
          months from the last day for which
          compensation was paid shall be allowed for
          the filing of claims payable under
          § 65.2-503 . . . ."

               A review pursuant to Code § 65.2-708(A)
          is predicated upon a prior award. Mayberry,
          18 Va. App. at 21, 441 S.E.2d at 350-51
          (citation omitted); see also Shawley, 216
          Va. at 445-46, 219 S.E.2d at 852.

Id. at 310-11, 469 S.E.2d at 87.

     First, we consider whether claimant's neck injury

constituted a change in condition pursuant to Code § 65.2-708.

The doctrine of compensable consequences provides

          "[w]hen the primary injury is shown to have
          arisen out of and in the course of
          employment, every natural consequence that
          flows from the injury likewise arises out of
          the employment, unless it is the result of
          an independent intervening cause
          attributable to claimant's own intentional
          conduct."

Bartholow Drywall Co., Inc. v. Hill, 12 Va. App. 790, 793-94,

407 S.E.2d 1, 3 (1991) (quoting Morris v. Badger Powhatan/Figgie

Int'l., Inc., 3 Va. App. 276, 283, 348 S.E.2d 876, 879 (1986)).

"A change of condition claim based on the aggravation of a prior

compensable injury falls within this doctrine."     Southern Iron



                              - 6 -
Works, Inc. v. Wallace, 16 Va. App. 131, 134, 428 S.E.2d 32, 34

(1993) (citing Bartholow, 12 Va. App. at 797, 407 S.E.2d at 5).

"'The simplest application of this principle is the rule that

all the medical consequences and sequelae that flow from the

primary injury are compensable.'"      American Filtrona Co. v.

Hanford, 16 Va. App. 159, 163, 428 S.E.2d 511, 513 (1993)

(citation omitted).

     In this case, we find that claimant's neck injury was not a

medical consequence that flowed from the primary injury.

Claimant testified before the deputy commissioner that she

injured her neck on October 2, 1987, the date of the accident.

Thus, according to claimant's own testimony, her neck injury was

a primary injury, not a subsequent condition that developed as a

result of the accident.   Therefore, the limitation period in

Code § 65.2-708(A) is inapplicable to claimant's neck injury

claim.

     Because we find that claimant's neck injury was a primary

injury, the two-year limitation period in Code § 65.2-601

applies.

     In Shawley, 216 Va. at 446, 219 S.E.2d at 853, the Supreme

Court of Virginia held that "within [the limitation period] an

employee must assert against his employer any claim that he

might have for any injury growing out of the accident."     The

facts in Shawley are very similar to the facts in this case.      In

Shawley, Shawley fell from a ladder and injured himself during

                               - 7 -
his employment with Shea-Ball.        Id. at 443, 219 S.E.2d at 850.

Shea-Ball and its workmen's compensation carrier recognized the

claim as compensable and entered into a memorandum of agreement

with Shawley.    Id.   The memorandum of agreement stated Shawley

injured his "'right hip and left ankle.'"        Id.   After Shea-Ball

submitted a change in condition application, which was dismissed

by the deputy commissioner, the full commission found the

maximum improvement of Shawley's left leg had been attained and

entered an award based on a twenty percent "[p]ermanent partial

loss of the use of the left leg . . . ."        Id. at 443, 219 S.E.2d

at 851.   On appeal to the Supreme Court, Shawley argued the

commission refused to consider his additional claim for injuries

to his back and right leg.     Id.    Shawley did not claim the

injuries to his back and right leg in his original claim, and

none of the medical documents submitted during the limitation

period indicated he sustained an injury to his back or right

leg.    Id. at 443-44, 219 S.E.2d at 850-51.

       The Court rejected Shawley's argument that he did not need

to specify all injuries in his original claim or to assert them

within the limitation period.        Id. at 446, 219 S.E.2d at 853.

The Court wrote that the assertion of any claim growing out of

the accident was necessary because

            it is this notice to the employer and his
            insurance carrier that gives them knowledge
            of the accident and of their potential
            liability. Failure to give such notice
            within [the limitation period] would

                                 - 8 -
            seriously handicap the employer and the
            carrier in determining whether or not there
            was in fact an injury, the nature and extent
            thereof, and if related to the accident.

Id.

      Clearly, Shawley does not create an exception for adjacent

body parts to the requirement that all claims growing out of an

accident must be timely asserted.   The memorandum of agreement

stated Shawley injured his right hip and left ankle, yet his

subsequent claim for injury to his right leg was rejected by the

Supreme Court.   Thus, despite the relationship between the right

hip and right leg, the Court rejected Shawley's claim for the

right leg injury because such injury was not specified within

the limitation period.

      In this case, claimant did not indicate she suffered injury

to her neck in her original claim, and the neck injury was not

reported in the medical documents submitted within the two-year

limitation period following the date of the accident.      Under

Shawley, claimant was required to assert the claim for her neck

injury within the limitation period because, according to her

testimony, she suffered the neck injury on the date of the

accident.   Her claim for the injury to her neck is, therefore,

barred by the statute of limitations.

      For these reasons, we hold the commission erred in finding

that the two-year statute of limitations did not act to bar the




                                - 9 -
claim for claimant's neck injury.   We, therefore, reverse the

award of the commission.

                                                         Reversed.




                             - 10 -
Coleman, J. dissenting.

     In my opinion the majority applies the Supreme Court's

holding in Shawley v. Shea-Ball Const. Co., 216 Va. 442, 446,

219 S.E.2d 849, 853 (1975), much too broadly and in so doing has

circumvented the fact finding function of the commission, which

in this case was to determine whether McNeal's neck injury was

part of the compensable injury that the memorandum of agreement

described as "bruised shoulder & ribs."   As the Supreme Court

clearly pointed out in Shawley, when the commission makes such a

determination of whether a claimed injury was part of the

original compensable injury or whether an injury is a new or

unrelated injury it is exercising a fact finding function.     See

Shawley, 216 Va. at 444, 219 S.E.2d at 851 ("These findings of

fact are conclusive and binding upon this Court.").

     In Shawley, the Supreme Court upheld the commission's

factual finding that the evidence failed to prove that Shawley's

claim for back pain and a right ankle injury were related to his

compensable left ankle injury.   However, here, because credible

evidence supports the commission's factual finding that McNeal's

neck or cervical spine injury for which she now seeks medical

treatment was part of the same original injury that was

designated in the memorandum of agreement as "bruised shoulder &

ribs," I would affirm the commission's award.   The commission,

in its opinion, reviewed the evidence and the several medical

reports on which it relied that, if accepted, proved that McNeal

                             - 11 -
had suffered a crushing injury to her upper body and shoulders,

which included the neck or cervical spine.   The commission

accepted and relied upon those reports and testimony in finding

that McNeal's "shoulder" injury included an injury to the neck

or cervical spine injury.   Because credible evidence supports

the commission's factual finding that McNeal's neck injury was

part of her original compensable injury, I would affirm the

commission's decision.

     Furthermore, in my opinion, the majority's extension of the

Shawley holding creates an enormous pitfall for the unwary

claimant who has no obvious reason or incentive to not accept

the benefits to which he or she will be entitled under a

memorandum of agreement in which the employer or insurance

carrier has chosen, and will now be encouraged, to list only one

of the several compensable injuries that the employee may have

received or to describe the injury to the most precise or

restricted body part.

     For the foregoing reasons, I respectfully dissent from the

majority opinion.




                              - 12 -
