                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Bray, Annunziata and Overton


KATHRYN E. SHURON
                                                 MEMORANDUM OPINION *
v.   Record No. 1237-98-4                            PER CURIAM
                                                  OCTOBER 27, 1998
ARA FOOD SERVICE AND RELIANCE
 NATIONAL INDEMNITY COMPANY


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           (Kathryn E. Shuron, pro se, on brief).
           No brief for appellees.



     Kathryn E. Shuron ("claimant") contends that the Workers'

Compensation Commission ("commission") erred in (1) dismissing

without prejudice her claim for benefits filed on November 17,

1995 (VWC File No. 177-74-90) and her claim for benefits filed on

February 26, 1996 (VWC File No. 168-88-58); (2) finding that the

January 3, 1997 re-filing of her application alleging a

change-in-condition, occurring on May 11, 1994 and/or February

19, 1995, was barred by the statute of limitations contained in

Code § 65.2-708(A) (VWC File No. 168-88-58); and (3) finding that

the January 3, 1997 re-filing of her application alleging an

injury by accident on May 11, 1994 was barred by the statute of

limitations contained in Code § 65.2-601 (VWC File No.

177-74-90).   Claimant also requests that this Court appoint Dr.

James J. Coyle as her authorized treating physician.      Upon

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
reviewing claimant's brief and the record, we find that this

appeal is without merit.    Accordingly, we summarily affirm the

commission's decision.     See Rule 5A:27.

                              Background

     On March 12, 1994, claimant sustained a lower back injury

arising out of and in the course of her employment with ARA Food

Service ("ARA").   ARA accepted the March 12, 1994 accident as

compensable, agreements were executed, and ARA paid compensation

to claimant for various time periods.
     On November 17, 1995, claimant filed a claim alleging an

injury by accident arising out of and in the course of her

employment on May 11, 1994. (VWC File No. 177-74-90).   On

February 26, 1996, claimant filed a claim for benefits alleging

an injury by accident arising out of and in the course of her

employment with ARA on February 19, 1995 (VWC File No. 180-43-83)

and a "restrain" of her March 12, 1994 and May 11, 1994 injuries.

(VWC File No. 168-88-58).

     The commission scheduled a hearing to take place on December

19, 1996 on all three claims.    However, because claimant failed

to file responses to ARA's discovery requests after the

commission ordered her to do so, the deputy commissioner

dismissed the claims in VWC File Nos. 168-88-58 and 180-43-83

without prejudice and the claim in VWC File No. 177-74-90 with

prejudice.    Claimant appealed that decision to the full

commission.   On January 31, 1997, the full commission affirmed



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the deputy commissioner's dismissals without prejudice in VWC

File Nos. 168-88-58 and 180-43-83 and reversed the dismissal in

VWC File No. 177-74-90 from with prejudice to without prejudice.

The full commission also concluded that claimant's January 3,

1997 review request would be considered a re-filing of all three

claims and referred all three claims to the evidentiary hearing

docket.

     After a hearing on all three claims on June 11, 1997, the

deputy commissioner ruled that the claims alleged in VWC File

Nos. 168-88-58 and 177-74-90 were barred by the applicable

statute of limitations.        With respect to VWC File No. 180-43-83,

the deputy commissioner found that claimant proved she sustained

an injury by accident arising out of and in the course of her

employment on February 19, 1995.       The deputy commissioner awarded

medical expenses to claimant, but held that she failed to prove

she was entitled to an award for disability.       In an April 28,

1998 opinion, the full commission affirmed the deputy
                           1
commissioner's findings.        Claimant appeals from that decision.

             Dismissal of Claims Without Prejudice 2
     1
      Claimant did not appeal the commission's findings with
respect to VWC File No. 180-43-83. Accordingly, we will not
address those findings on appeal.
     2
      In its April 28, 1998 opinion, the full commission did not
consider this issue, citing claimant's failure to appeal the
commission's January 31, 1997 decision dismissing her claims
without prejudice. We find that because the January 31, 1997
decision referred the re-filed claims to the evidentiary hearing
docket, it did not constitute a final appealable order.
Accordingly, we will consider this issue on appeal.




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     In its January 31, 1997 review opinion, the commission found

as follows:
               The employer propounded interrogatories
          on November 11, 1996, prior to a hearing
          scheduled for December 19, 1996. After the
          employee did not respond to the
          interrogatories, counsel for the employer
          requested on December 4, 1996, that the
          Commission dismiss the claims. The deputy
          commissioner declined to dismiss the
          claimant's claims because the employer had
          filed no motion to compel responses in a
          timely manner. The deputy commissioner also
          declined to continue the hearing because the
          employer had had sufficient time to commence
          discovery after the deputy commissioner
          continued a September 19, 1996, hearing at
          the employer's request. In his December 5,
          1996, letter the deputy commissioner directed
          the claimant to respond to the employer's
          interrogatories by December 13, 1996, or face
          possible sanctions. The employee did not
          respond.
               In her petition for review, the employee
          states that she did not receive the
          interrogatories from the employer in November
          but states that she received both the
          interrogatories and the deputy commissioner's
          letter on December 9, 1996. The employee
          admits that she did not respond to the
          discovery devices, citing medical and child
          care problems.


     Based upon those findings, the commission concluded that

"both sides have engaged in dilatory behavior which has slowed

the progress of the litigation."   Consequently, the commission

affirmed the deputy commissioner's dismissal of VWC File Nos.

168-88-58 and 180-43-83 without prejudice and reversed the deputy

commissioner's dismissal of VWC File No. 177-74-90 from with

prejudice to without prejudice.

     "[T]he commission has the same authority as a court to



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punish for noncompliance with its discovery orders."       Jeff Coal,

Inc. v. Phillips, 16 Va. App. 271, 278, 430 S.E.2d 712, 717

(1993).    See also Code § 65.2-202.     In addition to its statutory

authority to impose sanctions, the commission's rules authorize

the commission to impose certain sanctions, including dismissal

of a claim or application.     See Rule 1.12, Rules of the Virginia

Workers' Compensation Commission.      The commission has the

authority to adopt rules to carry out the provisions of the

Workers' Compensation Act.     See Code § 65.2-201(A).

     Thus, the commission has the authority to impose the

sanction of dismissal in appropriate cases.      The decision to

sanction a party for disobedience to an order is committed to the

commission's discretion.     See Jeff Coal, 16 Va. App. at 277, 430

S.E.2d at 716.   Based upon this record, we cannot find that the

commission abused its discretion.

                       VWC File No. 168-88-58

     Code § 65.2-708(A) provides that "[n]o such review [of an

award on the ground of change in condition] shall be made after

twenty-four months from the last day for which compensation was

paid, pursuant to an award under this title . . . ."      This

section required that claimant's application alleging a change in

condition be filed within twenty-four months from October 16,

1994, the last day for which compensation was paid pursuant to an

award.    Pursuant to the commission's January 31, 1997 decision,

claimant's application was not considered filed until January 3,



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1997, more than twenty-four months after October 16, 1994.

Accordingly, the commission did not err in finding that it lacked

jurisdiction to consider claimant's claim alleging a




                              - 6 -
change-in-condition because it was time-barred pursuant to Code

§ 65.2-708(A).

                      VWC File No. 177-74-90

     Code § 65.2-601 provides that "[t]he right to compensation

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

with the Commission within two years after the accident."

Claimant's re-filed January 3, 1997 application alleging a May

11, 1994 industrial accident was filed more than two years after

the date of the alleged accident.    Accordingly, the commission

did not err in dismissing the claim on the ground that it was not

timely filed as required by Code § 65.2-601.
     The commission also found that there was "no equitable basis

to toll the two-year statute of limitations" pursuant to Code

§ 65.2-602.   We agree.

     The evidence proved that employer filed an Employer's First

Report of Accident with respect to claimant's May 11, 1994

accident on November 17, 1995.    At that time, approximately six

months before the limitations period would expire, the commission

mailed to claimant a pamphlet outlining her rights and

responsibilities under the Workers' Compensation Act.    In

addition, the commission had previously mailed that same pamphlet

to claimant on May 10, 1994, with respect to her March 12, 1994

accident.   Claimant admitted that she consulted an attorney, who

informed her in an August 1, 1995 letter of the two-year

limitations period and the importance of filing a timely claim.



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In fact, claimant initially filed a timely claim on November 17,

1995, which was dismissed without prejudice.

     Based upon this record, we cannot find that claimant's

evidence proved that employer's conduct prejudiced her rights

with respect to filing a timely claim as required to invoke the

tolling provision contained in Code § 65.2-602.

                        Treating Physician

     Claimant did not raise this issue before the commission.

Accordingly, we will not consider it for the first time on

appeal.   See Green v. Warwick Plumbing & Heating Corp., 5 Va.

App. 409, 413, 364 S.E.2d 4, 6 (1988); Rule 5A:18.

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

                                                        Affirmed.




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