                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Agee and Senior Judge Hodges
Argued at Chesapeake, Virginia


PENTRAN AND VIRGINIA MUNICIPAL GROUP
 SELF-INSURANCE ASSOCIATION
                                            MEMORANDUM OPINION* BY
v.   Record No. 1496-00-1                 JUDGE JAMES W. BENTON, JR.
                                               FEBRUARY 27, 2001
DORIS B. CHERRY


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             William C. Walker (Bradford C. Jacob;
             Taylor & Walker, P.C., on brief), for
             appellants.

             No brief or argument for appellee.


     The sole issue raised by this appeal is whether the

commission erred in finding that the statute of limitations did

not bar Doris B. Cherry's claim for compensation.      We affirm the

award.

     The undisputed evidence establishes that Cherry sustained

an injury by accident on July 14, 1995, and obtained medical

treatment.     Although Cherry notified Pentran of the injury in

August 1995, Pentran did not file its first report of injury

with the commission until January 30, 1998.       Cherry filed her

claim fifteen days earlier, on January 15, 1998.



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     A right to workers' compensation benefits is barred unless

a claim is filed with the commission within two years of the

accident.   Code § 65.2-601.   This limitation may be tolled,

however, as follows:

            In any case where an employer has received
            notice of an accident resulting in
            compensable injury to an employee as
            required by [Code] § 65.2-600, and . . . the
            employer has failed to file the report of
            said accident with the Virginia Workers'
            Compensation Commission as required by
            [Code] § 65.2-900, and such conduct of the
            employer has operated to prejudice the
            rights of such employee with respect to the
            filing of a claim prior to expiration of a
            statute of limitations otherwise applicable,
            such statute shall be tolled . . . until the
            employer files the first report of accident
            required by [Code] § 65.2-900. For purposes
            of this section, such rights of an employee
            shall be deemed not prejudiced if . . . he
            has received after the accident a workers'
            compensation guide described in [Code]
            § 65.2-201 . . . .

Code § 65.2-602.

     Pentran does not dispute that it received notice of the

injury from Cherry within a month of its occurrence and that it

did not file its first report of injury with the commission

until January 30, 1998, more than twenty-nine months after it

received notice of Cherry's injury.     Relying on a January 1993

accident, in which Cherry was injured and Pentran filed

Memoranda of Agreement, Pentran contends Cherry received a

guidebook from the commission in 1993 and, therefore, "certainly

had notice" that she had to file a claim after her 1995 injury.


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Thus, Pentran argues Cherry failed to prove prejudice from

Pentran's failure to timely file the report of injury after her

1995 injury.

     No evidence proved Cherry knew that she had to file a claim

after her 1995 injury.   The evidence proved that when the 1993

injury occurred Pentran filed the Memoranda of Agreement and

other documents with the commission.    Cherry testified, and the

commission found, that she relied upon Pentran to notify the

commission of the 1995 claim and that she did not realize she

had the "responsibility too" to file with the commission.    The

commission specifically did "not find it significant that

[Cherry] received a booklet from the Commission more than two

years prior to this injury."   Indeed, the 1993 injury is not

"the accident" at issue in this proceeding within the meaning of

Code § 65.2-602.   For the receipt of the booklet to have

eliminated any prejudice to Cherry, she would have had to have

received it after the July 14, 1995 accident.

     In view of Cherry's testimony that she did not know she had

a responsibility to file her claim with the commission, we

conclude the record supports the commission's finding.

"Decisions of the commission as to questions of fact, if

supported by credible evidence, are conclusive and binding on

this Court."   Manassas Ice & Fuel Co. v. Farrar, 13 Va. App.

227, 229, 409 S.E.2d 824, 826 (1991).   Furthermore, "[i]n

determining whether credible evidence exists, the appellate

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court does not retry the facts, reweigh the preponderance of the

evidence, or make its own determination of the credibility of

the witnesses."   Wagner Enters., Inc. v. Brooks, 12 Va. App.

890, 894, 407 S.E.2d 32, 35 (1991).    Thus, we cannot assume,

contrary to the evidence and the commission's finding, that

Cherry knew she had to file a claim.

     Pentran's failure to file a report of accident prior to the

expiration of the two years deprived Cherry of the opportunity

to receive the guidebook specified in Code § 65.2-201(D) within

the two-year limitation period.   Cherry did not receive the

statutory notice informing her that she had to file a claim

after her 1995 injury by accident.     Accordingly, the evidence

supports the commission's ruling that Cherry was prejudiced by

Pentran's delayed filing.   We affirm the award.

                                                     Affirmed.




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