                       COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Clements and Agee
Argued at Salem, Virginia


McKEE FOODS CORPORATION AND
 ST. PAUL FIRE & MARINE
 INSURANCE COMPANY
                                          MEMORANDUM OPINION * BY
v.   Record No. 2727-00-3                  JUDGE G. STEVEN AGEE
                                               JULY 3, 2001
TONY DUANE ATKINS


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

            R. Ferrell Newman (Thompson, Smithers,
            Newman, Wade & Childress, on brief), for
            appellants.

            A. Thomas Lane, Jr., for appellee.


     On this appeal, McKee Foods Corporation and its insurer,

St. Paul Fire & Marine Insurance Company, (collectively referred

herein as "the employer"), appeal the decision of the Virginia

Workers' Compensation Commission ("the commission") in which it

found it had jurisdiction to adjudicate a claim filed by Tony

Duane Atkins ("the claimant") on April 12, 2000.       The employer

contends that the statute of limitations barred the commission

from asserting jurisdiction in this matter and, for the

following reasons, we agree with the employer and reverse the

decision.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                             BACKGROUND

     The claimant was employed with the employer as a truck

driver on October 15, 1997, when he was involved in a motor

vehicle accident in which his right arm was injured.   Each

physician who treated the claimant consistently diagnosed his

symptoms as relating to an injury to his right arm or shoulder.

The incident was timely reported, and the employer accepted the

injuries as compensable.   After surgery was performed on

November 26, 1997, the claimant was released to return to work

without restrictions and remained so engaged for over a year.

     A Memorandum of Agreement ("the agreement"), reflecting the

injury as a "strain of upper extremity," was executed by the

parties and filed with the commission on November 19, 1997.

Pursuant to the agreement, the commission entered an award

providing for the payment of disability and medical treatment

for the claimant's injury.

     In June 1999, the claimant returned to the orthopedist who

performed surgery on his shoulder after the accident and

complained of renewed problems with his shoulder.   The

orthopedist, Dr. Burgess, found "no evidence of cervical

radioculopathy."   He referred the claimant for a neurological

examination, which found "no neurologic[al] evidence of cervical

radioculopathy."   Claimant's symptoms were "muscular in nature

related to his shoulder injury."



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     On October 25, 1999, the claimant again returned to the

orthopedist.   Subsequent testing revealed that the claimant's

current symptoms were likely due to a disc bulge at C4-5.    The

claimant submitted his medical bills for payment under the 1997

agreement.   The employer advised the claimant that it would only

cover the bills associated with treatment of the right shoulder,

not for a neck injury.   On April 12, 2000, the claimant filed an

application with the commission requesting that his "neck and/or

cervical conditions" be considered injuries covered under the

agreement.

     The employer defended averring the commission was without

jurisdiction to hear the claim as it was barred by the

expiration of the statute of limitations in Code § 65.2-601.

The deputy commissioner agreed with the employer and denied the

claimant's application, noting that it was filed over two years

after the accident date and, therefore, the commission was

without jurisdiction to consider the matter.   This decision was

reversed upon review by the full commission, which held the

statute of limitations did not bar the claimant's application.

Simply stated, the commission, broadly construing the agreement,

found it covered the alleged cervical injury and, therefore, was

not barred by the statute of limitations.   Commissioner Tarr

dissented.   We disagree with the commission and reverse the

commission's decision.



                               - 3 -
                             ANALYSIS

     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

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

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

(1989).   However, the commission's application of statutory and

case law is a finding of law not binding on this Court.     See

Robinson v. Salvation Army, 20 Va. App. 570, 572, 459 S.E.2d

103, 104 (1995).

     The right to compensation under the Workers' Compensation

Act ("the Act") "shall be forever barred, unless a claim be

filed with the Commission within two years after the accident."

Code § 65.2-601.   The issue in this case is whether the claimant

asserted all his injuries within two years of the October 15,

1997 accident.

     The full commission found that under a broad interpretation

of the agreement and in light of the "interrelatedness" of the

neck and shoulder, the cervical injury was claimed within the

two-year period.   It further held that the Supreme Court of

Virginia's decision in Shawley v. Shea-Ball, 216 Va. 442, 219

S.E.2d 849 (1975), was inapplicable to the case at bar because

of the interrelatedness of the body parts, finding Shawley to



                                 - 4 -
apply only "where there is an unconnected and unrelated body

part . . . ."

     However, upon our review of the facts and applicable law,

we hold the commission erred in its interpretation and

application of Shawley.   The injury identification of "strain of

upper extremity" in the agreement and the treatment to the arm

and shoulder did not amount to putting the employer on notice as

to its potential liability for the claimed injury to the other

body parts.   This is particularly true in this case as there was

an explicit medical finding during the statutory period that no

cervical problem regarding the claimant's neck existed.

     In Shawley, the claimant fell from a ladder and injured his

left foot and ankle.   The Memorandum of Agreement described the

nature of the injury as "right hip and left ankle."   After the

statute of limitations had run, the claimant asked the

commission to grant as part of his claim for a left ankle injury

an additional claim for alleged back and right leg injuries.

The commission refused the request and found that "'[n]o written

claim for injury to the back or right leg was filed with the

Commission within [the requisite time period] as required

. . . . Moreover and admittedly, it was only beginning [after

the statute had run] that the first reference was made or

appears in reports to any back or right leg condition.'"    Id. at

443-44, 219 S.E.2d at 849.



                               - 5 -
     The Supreme Court affirmed the decision and held:

          Appellant argues here that it was not
          necessary for him to specify all injuries in
          his original claim, or to assert them within
          [the statutory period] . . . . We disagree.
          Clearly it is the intent of [the statute]
          that . . . an employee must assert against
          his employer any claim that he might have
          for any injury growing out of an accident.
          . . . [I]t 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 statutory time period]
          from an accident would 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. The reason for the
          limitation prescribed by [the statute] is a
          compelling one.

Id. at 446, 219 S.E.2d at 853.

     Despite the commission's ruling in the case at bar that a

claimant is not required to "identify with precision every body

part involved," the Supreme Court made it clear that notice made

with specificity and asserted within the statute of limitations

is required.   In the case at bar, the claimant failed to meet

this requirement.

     The claimant was required to identify all his injuries by

October 15, 1999.   Therefore, the cervical injury claim, made

after the statute of limitations had run, bars the commission's

consideration of this matter as its jurisdictional authority

terminated at the two-year mark.     See Code § 65.2-601.   Further,




                                 - 6 -
the commission has no authority to rewrite the agreement to

encompass the injury or to determine if adjacent body parts not

identified in the agreement are "close enough" to be covered. 1

See Shawley, 216 Va. at 446, 219 S.E.2d at 853.

     While the claimant is correct in stating the Act must be

liberally construed in harmony with its humane purposes,

"statutory construction may not be used to extend the rights

created by the Act beyond the limitations and purposes set out

therein."   Garcia v. Mantech International Corp., 2 Va. App.

749, 754, 347 S.E.2d 548, 551 (1986).   To construe the Act and

the agreement to find the cervical injury claim filed within the

statutory period ignores the fundamental notice requirement of

Code § 65.2-601 as established in Shawley and Garcia.

     In summary, we hold, pursuant to Shawley, that the claimant

failed to file a timely claim for his cervical injury within the

meaning of Code § 65.2-601.   This resulted in the employer not

being timely put on notice of the alleged cervical injury, as

required by Shawley.

     To vitiate the notice requirement by permitting an untimely

claim would be fundamentally unfair to the employer.    Therefore,

the claim and the commission's jurisdiction are barred by the




     1
       Such an action by the commission disregards its own
precedent. See e.g., Gross v. Wyeth-Ayerst Laboratories, V.W.C.
No. 182-73-27 (April 11, 2000).

                               - 7 -
statute of limitations.   Accordingly, the decision of the

commission is reversed.

                                                         Reversed.




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