                    COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Fitzpatrick and Annunziata
Argued at Alexandria, Virginia


J&F SERVICES, INC. and
 HANOVER INSURANCE COMPANY
                                       MEMORANDUM OPINION * BY
v.          Record No. 1202-96-4     JUDGE ROSEMARIE ANNUNZIATA
                                          OCTOBER 29, 1996
JOSE V. VILLATORO


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
           William H. Schladt (Ward & Klein, on brief),
           for appellants.

           Peter M. Sweeny (Wesley G. Marshall; Peter M.
           Sweeny & Associates, on brief), for appellee.


     Claimant, Jose V. Villatoro, filed a claim for benefits

seeking compensation for an injury by accident arising out of and

in the course of his employment with employer, J&F Services, Inc.

 The deputy commissioner applied the statute of limitations to

bar compensation.   The full commission reversed and remanded the

case, directing the deputy commissioner to render a decision on

the merits.   The deputy commissioner entered an award in

claimant's behalf, which, upon claimant's request for review, the

full commission modified.    Employer appeals, contending (1) the

commission erred by not applying the statute of limitations as a

bar to compensation; (2) the commission erred in finding claimant

suffered a temporary total disability subsequent to May 25, 1992;

and (3) the commission erred in awarding temporary total

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
disability benefits after June 30, 1992.   With the exception of

the third issue raised, we affirm.

                                 I.

     Claimant suffered a compensable injury by accident while

working for employer on April 16, 1992.    On April 22, 1992,

claimant, through his first attorney, filed a claim for benefits

in the Virginia Workers' Compensation Commission.   On May 5,

1992, claimant's counsel requested the matter be set for a

hearing.   By letter dated June 19, 1992, the commission stated

that the case would not be placed on the hearing docket until the

medical evidence supporting the claim was sent to the commission.

On July 18, 1992, the Virginia commission wrote claimant's first

lawyer and advised him that the medical evidence supporting

claimant's claim had to be sent immediately to the commission to

avoid dismissal of the claim.
     In the interim, on July 6, 1992, employer agreed to

compensate claimant for total disability during the period April

17, 1992 to May 25, 1992.    However, claimant refused to execute

an Agreed Statement of Facts, and none was filed with the

commission.

     Meanwhile, by June 2, 1992, claimant had filed a claim for

benefits in the Maryland Workers' Compensation Commission after

having hired a new lawyer.   The Virginia commission received

notice of this action on July 7, 1992.    On July 8, 1992,

employer's carrier wrote claimant's new lawyer and stated it




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would compensate claimant for his Virginia claim through May 25,

1992.    On July 15, 1992, claimant's counsel responded, stating

that claimant had "opt[ed] for the State of Maryland Workers'

Compensation benefits."

        On August 28, 1992, the Virginia commission wrote claimant,

requesting him to confirm that he was represented by new counsel

and that he would be pursuing a claim in Maryland so the

commission could dispose of the case.    On September 10, 1992,

claimant's counsel responded, advising the Virginia commission

that he represented claimant in the Maryland case, which claimant

was then pursuing.
        The Virginia commission never entered an order dismissing

claimant's Virginia claim.    Following a hearing on April 11,

1994, the Maryland Workers' Compensation Commission denied

claimant's claim for lack of jurisdiction.

        Subsequently, claimant, through a third lawyer, filed a

document entitled "Workers' Compensation Claim and Agreement to

Retain Counsel" in the Virginia commission and requested the

commission refer the claim to the hearing docket based on

claimant's initial application for hearing.    Following a hearing

on February 24, 1995, the deputy commissioner invoked the statute

of limitations to bar compensation, having found claimant made a

conscious decision to withdraw his Virginia claim.    The full

commission reversed.    It found claimant never intended to

withdraw his Virginia claim and remanded the matter for a




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determination on the merits.

     With respect to his claim for benefits, claimant responded

to employer's interrogatories on the day before the February 24

hearing.   In his response, claimant stated that he sought

temporary total disability benefits from April 17, 1992 through

June 30, 1993.   At the February 24 hearing, the deputy

commissioner stated that claimant sought temporary total

disability benefits only for the periods April 17, 1992 to June

30, 1992, and November 1, 1993 to July 31, 1994, as "set out in a

letter submitted today by claimant's counsel."   The periods

described comport with the periods claimant submitted to the

deputy commissioner in a Statement of Benefits Claimed.    The

deputy commissioner's June 13, 1995 opinion also states that

claimant sought benefits only until June 30, 1992.   Upon remand

from the commission's ruling that the statute of limitations did

not bar the claim, another hearing was held before the deputy

commissioner.    At no point during that hearing was the

termination of the initial time period for which claimant sought

benefits modified from June 30, 1992; the deputy commissioner's

ruling on the merits was likewise limited to that time period.
     There is no dispute that claimant suffered a compensable

accident which rendered him totally disabled from April 17, 1992

through May 25, 1992.   Claimant's treating physician, Dr. Norman

J. Cowan, approved a light duty job description for claimant

provided by employer; the job was to commence May 26, 1992.




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Claimant testified that he received notice of the light duty

opportunity, but he stated nobody was there when he appeared for

work on the twenty-sixth.   Claimant acknowledged that he received

further notice of light duty work within two weeks, but he stated

when he responded, he was told he could not work.

     Meanwhile, claimant was treated by Dr. Joseph Y. Lin, on May

29, 1992, at which time Dr. Lin directed claimant not to work for

two weeks.   Dr. Lin never released claimant to return to work at

any level.   Claimant was also referred to and treated by Dr.

Michael April, who directed claimant not to work from July 20,

1992 to August 20, 1992.    Although Dr. April noted as late as

July 20, 1993 that claimant was not ready to return to work, on

April 15, 1993, Dr. Cowan approved another light duty job

description that employer provided for claimant.
     The deputy commissioner found claimant's testimony

concerning his reasons for not accepting light duty employment in

May 1992 incredible and that claimant had unjustifiably refused

selective employment.   However, based on the medical records of

Drs. Lin and April which demonstrated that claimant was totally

disabled beginning May 29, 1992, the deputy commissioner awarded

claimant temporary total disability benefits for the period April

17 to May 25 and again from May 29 to June 30, 1992.   The deputy

commissioner terminated the award on June 30 because claimant had

not sought benefits beyond that date.

     Claimant sought review, requesting, inter alia that the




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commission not terminate claimant's recovery as of June 30, 1992.

The commission found that although Dr. Cowan had released

claimant to return to light duty in May 1992, the records of both

Drs. Lin and April established a continuing disability through

the three-day period from May 26 to May 28.   The commission

further found that claimant was available for light duty

employment in April 1993, which he unjustifiably refused.

Without addressing the June 30, 1992 limitation imposed by the

deputy commissioner, the full commission awarded claimant

temporary total disability benefits for the period April 17, 1992

to April 13, 1993.
                                 II.

     On appeal, employer contends (1) the commission erred by not

applying the statute of limitations as a bar to compensation; (2)

the commission erred in finding claimant suffered a temporary

total disability subsequent to May 25, 1992; and (3) the

commission erred in awarding temporary total disability benefits

after June 30, 1992.

                                 A.

     Assuming without deciding that employer's statute of

limitations argument is not procedurally barred, we find that the

argument fails.    The right to compensation under the Virginia

Workers' Compensation Act is forever barred "unless a claim be

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

Code § 65.2-601.   There is no dispute that claimant filed a claim




                                - 6 -
for benefits in May 1992, well within the prescribed period.      The

issue then is whether claimant's actions subsequent to the filing

of his claim amount to a withdrawal of the claim.

     Initially, we find no rule or authority which requires a

claimant to act within a certain time after the filing of a claim

to avoid having the claim dismissed.    Rule 1.3 of the Rules of

the Workers' Compensation Commission states, "[i]f supporting

evidence is not filed within 90 days after an employee's claim is

filed, it may be dismissed upon motion of the employer after

notice by the Commission to the parties."   Here, employer made no

such motion.   The record contains no indication that the

commission ever dismissed the claim.    Indeed, absent a motion by

employer, the commission had no authority to do so.   Thus, we

conclude, claimant's inaction with respect to his Virginia claim

is not tantamount to a withdrawal.
     "[T]he commission cannot hold that a claimant has withdrawn

a `claim' absent a clear showing that the claim has been

withdrawn."    Keenan v. Westinghouse Elevator Co., 10 Va. App.

232, 235, 391 S.E.2d 342, 344 (1990).   In Keenan, the claimant

filed a claim for benefits in February 1987, alleging an injury

by accident in May 1986.    Id. at 233-34, 391 S.E.2d at 343.    In

December 1987, the claimant filed an Application for Hearing,

which he subsequently withdrew in March 1988.    Id. at 234, 391

S.E.2d at 343.   In August 1988, claimant filed another

Application for Hearing; however, the commission ruled that



                                - 7 -
claimant's withdrawal of his initial Application for Hearing was

effectively a withdrawal of his claim for benefits.     Id.   Noting

the distinction between a claim for benefits and an Application

for Hearing, this Court reversed the commission, ruling there had

been no clear showing that the claimant had intended to withdraw

his claim.   Id. at 235-36, 391 S.E.2d at 344.

     The commission ruled that claimant had not withdrawn his

claim, and we find no basis to reverse that determination.     The

initial claim was never placed on the hearing docket because

claimant failed to file his medical records.     When pressed for

his medical records, claimant responded that he was pursuing a

claim in Maryland at that time.   We agree with the commission

that nothing in the correspondence suggests claimant intended to

withdraw his Virginia claim to pursue his claim in Maryland.

Although the commission stated its intention to "dispose" of the

matter and advised claimant to forward his medical records to

avoid "dismissal," we find no authority for the commission to

dispose of the matter absent a motion by employer, and, in any

event, the commission made no such disposition.    Furthermore, the

commission's November 1994 correspondence, which sought a

response to its August 1992 letter inquiring about a disposition

of the matter, demonstrates that the commission had not disposed

of the claim.   Also, contrary to employer's argument, we do not

find claimant's refusal to sign the Agreed Statement of Facts

evidence that he intended to not pursue a claim in Virginia.     At



                               - 8 -
most, such an act is evidence that claimant simply did not agree

with the statement.

     In short, we find no clear showing that claimant withdrew

his claim within the meaning of Keenan.   Accordingly, we find the

claim is not time barred.

                                B.

     Employer next contends the commission erred in finding

claimant suffered temporary total disability subsequent to May

25, 1992.   Dr. Cowan released claimant to return to a light duty

job scheduled to begin May 26, 1992.   By May 29, 1992, however,

Dr. Lin directed claimant not to return to work.   Claimant was

not released to return to work again until April 1993.   Based on

the medical records, both the deputy commissioner and the full

commission found claimant was totally disabled until May 26 and

subsequent to May 28.   Based on Dr. Cowan's release, the deputy

commissioner found claimant was not totally disabled during the

three-day period between May 26 and May 28.   Based on Dr. Lin's

records, the full commission found claimant's total disability

continued through the three-day period.   Employer argues Dr.

Cowan's release is evidence that claimant was not totally

disabled as of May 26 and contradicts the records of Drs. Lin and

April which suggest he was.   The commission's resolution of this

apparent conflict in the medical evidence binds this Court on

review if it is supported by credible evidence.    See, e.g., City
of Norfolk v. Lillard, 15 Va. App. 424, 429, 424 S.E.2d 243, 246




                               - 9 -
(1992).   We do not find the records of Drs. Lin and April

incredible and, accordingly, affirm the commission's finding.

                                 C.

     Finally, employer argues that the commission erred in

awarding temporary total disability benefits after June 30, 1992.

Although formal pleading is not required in matters before the

commission, see Keenan, 10 Va. App. at 233, 391 S.E.2d at 343,

due process requires that the employer be fully apprised of the

claim being presented, see Sergio's Pizza v. Soncini, 1 Va. App.
370, 375-76, 339 S.E.2d 204, 207 (1986).

     Claimant responded to employer's interrogatories, stating

that he sought temporary total disability benefits from April 17,

1992 through June 30, 1993.   However, at the hearing on the

following day, claimant made clear his intention to seek benefits

for the periods from April 17, 1992 to June 30, 1992, and

November 1, 1993 to July 31, 1994.     Upon this statement, the

deputy commissioner terminated the award as of June 30, 1992.     On

review to the full commission, claimant requested his benefits be

extended beyond June 30, 1992.   Without taking additional

evidence, and without addressing the issue, the commission

extended claimant's benefits beyond June 30, 1992.    The

commission terminated benefits in April 1993, finding claimant

had been released to light duty.

     We find that, in extending claimant's benefits beyond June

30, 1992, the commission deprived employer of the opportunity to



                              - 10 -
defend against the claim for benefits during the period June 30,

1992 and April 13, 1993.   Employer raised the defense of

claimant's release to return to work in April 1993 before the

deputy commissioner.   However, contrary to claimant's argument,

we do not find that this establishes employer suffered no

prejudice.   Employer presented evidence of the April 1993 release

to defend against claimant's claim for benefits during the period

November 1993 to July 1994, not as rebuttal to evidence of

claimant's condition during the period June 1992 to April 1993.

Accordingly, we reverse the commission's award of benefits during

the period June 30, 1992 to April 13, 1993 and remand the case to

allow both parties to present evidence on the issue whether

claimant was totally disabled during that period.   See Soncini, 1

Va. App. at 377, 339 S.E.2d at 208.
                                                 Affirmed in part,
                                                 reversed in part,
                                                     and remanded.




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