                                  COURT OF APPEALS OF VIRGINIA


Present: Judges Clements, Haley and Senior Judge Bumgardner
Argued at Alexandria, Virginia


MICHAEL PERON
                                                                MEMORANDUM OPINION * BY
v.        Record No. 1914-07-4                                JUDGE RUDOLPH BUMGARDNER, III
                                                                     FEBRUARY 5, 2008
ROANOKE EXPRESS AND
 VILLANOVA INSURANCE COMPANY/
 VIRGINIA PROPERTY & CASUALTY
 INSURANCE GUARANTY ASSOCIATION


                 FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                    W. David Falcon, Jr. (Chasen Boscolo, on brief), for appellant.

                    Jesse F. Narron (Steven H. Theisen; PennStuart, on brief), for
                    appellees.


          Michael Peron appeals the decision by the Workers’ Compensation Commission that his

claim was barred by the two-year statute of limitations, Code § 65.2-601. Finding no error, we

affirm.

                            Whether a claim is barred by the statute of limitations is a
                    question of law. This Court “review[s] questions of law de novo,”
                    and this Court is not “bound by the legal determinations made by
                    the commission.” . . . Timely filing of an original claim is
                    mandatory, and a claimant bears the burden of proving his claim is
                    timely filed.

Tuck v. Goodyear Tire & Rubber Co., 47 Va. App. 276, 284, 623 S.E.2d 433, 437 (2005)

(citations omitted).

          On May 17, 2002, the claimant filed his original claim alleging an injury on January 22,

2002, while playing hockey for the employer. On January 22, 2004, he filed a “protective claim”

          *
              Pursuant to Code § 17.1-413, this opinion is not designated for publication.
by letter alleging an alternative accident date of January 25, 2002. In that letter, the claimant

stated, “Although we still believe [January 22, 2002] to be the accurate date, the employer’s Post

Season Report of Injuries indicates that the accident may have occurred on January 25, 2002.

Please accept this as the claimant’s request that the date be amended for protective purposes

only.” On September 5, 2006, claimant’s counsel by letter, received by the commission via

facsimile on September 6, 2006, amended the application and for the first time alleged that the

accident occurred February 22, 2002.

       The deputy commissioner allowed the claimant to amend his claim. The commission

reversed finding the amendment alleged a new accident date of February 22, 2002. It ruled that

the amended claim was barred by the statute of limitations because it was made after the

two-year statute of limitations had run.

       The facts are not disputed. At the hearing before the deputy commissioner, the claimant

testified that he injured his left knee while playing hockey for the employer on February 22,

2002. He admitted that he stated he did not believe the accident occurred on February 22, 2002

in his deposition taken August 9, 2006. He explained that two to three days after his deposition

he checked the hockey schedule for the 2001-2002 season on the Internet and concluded the

accident had to have occurred on February 22, 2002.

       The claimant testified that he saw a team physician the night of his knee injury, but

received no treatment. The following night he saw a doctor in Toledo for a second opinion but

again received no treatment. On February 25, 2002, he received medical treatment from

Dr. Brent Johnson, the team physician. Dr. Johnson noted that the claimant was injured in a

game on February 22, 2002. The claimant continued treatment with Dr. Johnson for his knee

injury until May 2002. On July 21, 2003, Dr. Michael A. Franchetti, an orthopedist, examined

the claimant upon referral from his counsel for an impairment rating. Dr. Franchetti noted that

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the claimant stated he injured his knee on January 25, 2002, while playing hockey. On August 9,

2006, Dr. Steven S. Hughes examined claimant at employer’s request. In rendering his causation

opinion, Dr. Hughes referenced an accident date of January 25, 2002. In a supplemental letter

September 6, 2006, Dr. Franchetti noted that the claimant’s medical records showed that his left

knee injury occurred on February 22, 2002, not January 25, 2002.

       “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. This filing requirement is jurisdictional, serving more than a merely notice function.

“[T]he jurisdictional nature of a filing under Code § 65.1-87 [now § 65.2-601] is not affected by

any notice that may previously have been given to the employer.” Garcia v. Mantech Int’l Corp.,

2 Va. App. 749, 755, 347 S.E.2d 548, 551 (1986); see Leonard v. Arnold, 218 Va. 210, 215, 237

S.E.2d 97, 100 (1977). Claims have been barred under this section when the wrong employer

was named, Garcia, 2 Va. App. at 749, 347 S.E.2d at 548, and when an additional injury from the

same accident was not stated in the application, Shawley v. Shea-Ball Constr. Co., 216 Va. 442,

219 S.E.2d 849 (1975).

       During the course of this claim, prior to September 5, 2006, all commission notices,

correspondence, and orders sent to the claimant or his counsel listed the accident date of January

22, 2002. In the claimant’s counsel’s correspondence with the commission prior to September 5,

2006, he referenced an accident date of January 22, 2002. It was undisputed that no

compensable injury occurred on January 22, 2002 or January 25, 2002, the dates identified by the

claimant in his first two claims.

       More than two years passed between the time of the February 22, 2002 accident and the

claimant’s attempt to amend his claim to conform to the correct date. The claimant clearly could

have ascertained the correct accident date well before the expiration of the statute of limitations.

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He knew the game in which he injured his knee and after his deposition was able to determine

the date from information on the Internet. Until September 6, 2006, well after the statute of

limitations expired on February 22, 2004, he failed to identify February 22, 2002 as the date of

the accident.

       The claimant argues the amended claim should not be barred because the employer had

notice of the February 22, 2002 accident date through Dr. Johnson’s medical records. However,

the other medical records to which both the employer and the claimant had access listed January

25, 2002 as the accident date, and until September 6, 2006, the claimant consistently represented

to the commission and the employer that the accident occurred on January 22 or 25, 2002. As

late as the claimant’s August 2006 deposition, he maintained that he did not believe the accident

occurred on February 22, 2002.

       We conclude the two-year statute of limitations of Code § 65.2-601 bars the claimant’s

amended claim. Accordingly, we affirm.

                                                                                        Affirmed.




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