                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Elder and Bray
Argued at Chesapeake, Virginia


SAFEWAY STORES, INC.
                                         MEMORANDUM OPINION* BY
v.   Record No. 0895-99-2                 JUDGE LARRY G. ELDER
                                            FEBRUARY 29, 2000
HAROLD E. McGOWAN


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Charles P. Monroe (Duncan & Hopkins, P.C., on
          brief), for appellant.

          No brief or argument for appellee.


     Safeway Stores, Inc., (employer) appeals from a ruling of

the Workers' Compensation Commission awarding medical benefits

to Harold E. McGowan (claimant) for neck and back injuries

arising from an industrial accident of October 22, 1979.     On

appeal, employer contends (1) the commission lacked jurisdiction

to award benefits for neck and back injuries because claimant

failed to file a timely claim for these injuries; (2) because

the commission lacked jurisdiction to award benefits, it

improperly applied the doctrine of res judicata to bar

employer's assertion of the statute of limitations; and (3) even

if the commission had jurisdiction, the record contains no

expert medical opinion to support the commission's finding of


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
causation.   We hold that the commission lacked jurisdiction to

award benefits because claimant failed timely to file a claim

for injuries to his neck and back.     Therefore, we reverse the

commission's ruling and vacate the award without reaching

employer's third assignment of error.

     "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

§ 65.1-87, 1975 Va. Acts ch. 471; see Barksdale v. H.O. Engen,

Inc., 218 Va. 496, 499, 237 S.E.2d 794, 796-97 (1977) (holding

that statute of limitations is part of "substantive right to

recover" under Act and, therefore, applicable statute of

limitations is one in effect when injury occurs). 1    "This is the

notice which activates the right of the employee to compensation

and which invokes the jurisdiction of the [Workers' Compensation

Commission]."   Binswanger Glass Co. v. Wallace, 214 Va. 70, 73,

197 S.E.2d 191, 194 (1973) (construing former Code § 65.1-87).


     1
       Although Code § 65.1-87 was repealed and recodified at
§ 65.2-601, effective October 1, 1991, see 1991 Va. Acts ch.
355, the statute of limitations for filing a claim for
compensation remains two years.
     Since 1984, the Act has provided that the statute of
limitations may be tolled under certain circumstances. See Code
§ 65.2-602, 1991 Va. Acts cc. 216, 355; Code § 65.1-87.1, 1984
Va. Acts ch. 608, 1989 Va. Acts c. 539 (recodified at § 65.2-602
by 1991 Va. Acts cc. 216, 355). However, because the statute of
limitations is part of one's "substantive right to recover"
under the Act, see Barksdale, 218 Va. at 499, 237 S.E.2d at
796-97, the tolling provisions are inapplicable to injuries
incurred before the tolling provisions took effect.


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"'The right to compensation under the [workers'] compensation

law is granted by statute, and in giving the right the

legislature has full power to proscribe the time and manner of

its exercise.'"    Id. at 73, 197 S.E.2d at 193 (quoting Winston

v. City of Richmond, 196 Va. 403, 407, 83 S.E.2d 728, 731

(1954)).

     It is the intent of Code § 65.1-87 that, within the time

prescribed by the section,

           an employee must assert against his employer
           any claim that he might have for any injury
           growing out of the accident. . . . Failure
           to give such notice within [the statutorily
           prescribed period] would seriously handicap
           the employer . . . 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
           . . . is a compelling one. 2

Shawley v. Shea-Ball Constr. Co., 216 Va. 442, 446, 219 S.E.2d

849, 853 (1975) (emphases and footnote added) (construing former

Code § 65.1-87).   Thus, in Shawley, the Court held that the

commission lacked subject matter jurisdiction to award benefits

for injury to the claimant's right ankle and back, where the



     2
       This is distinguishable from the case in which an employee
timely files a claim for all injuries incurred in an industrial
accident but subsequently develops additional injuries as a
"natural consequence" of the industrial accident. See Bartholow
Drywall Co. v. Hill, 12 Va. App. 790, 793-94, 407 S.E.2d 1, 3
(1991).
     Because claimant contends the back and neck injuries
occurred simultaneously with, rather than subsequent to, the
accepted shoulder and forehead injuries, the doctrine of
compensable consequences is not applicable.

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only injuries for which he filed a timely claim were to his left

ankle and right hip.     See id. at 443-44, 219 S.E.2d at 851.   The

Court subsequently noted that "[j]urisdiction [ordinarily]

cannot be conferred on the Commission by consent" and that it

comes into being "when 'a claim [is] filed' within two years

after the accident."     Stuart Circle Hosp. v. Alderson, 223 Va.

205, 208-09, 288 S.E.2d 445, 447 (1982).

        Here, the only injuries included in the Memorandum of

Agreement executed by the parties in 1979 were to claimant's

shoulder and forehead.    Claimant filed no claim for benefits for

back, neck, arm or leg injuries until more than fifteen years

after the compensable accident.    Accordingly, the commission

lacked subject matter jurisdiction to award medical benefits for

these injuries.

        The commission acknowledged that employer's defense of lack

of subject matter jurisdiction is one that may be asserted "at

any time" but held that the doctrine of res judicata prevented

it from raising the defense of lack of jurisdiction more than

once.    Because employer had the opportunity to raise the defense

at the time of the deputy commissioner's 1995 award, when it

contended the treatment to claimant's neck and back was not

causally related, the commission held that employer was barred

from raising the issue of subject matter jurisdiction in this

appeal.    For the reasons that follow, we disagree.



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     The doctrine of res judicata provides that "[a] valid,

personal judgment on the merits in favor of [a party] bars

relitigation of the [s]ame cause of action, or any part thereof

which could have been litigated, between the same parties and

their privies."   Bates v. Devers, 214 Va. 667, 670-71, 202

S.E.2d 917, 920-21 (1974) (footnote omitted).      However, "[f]or a

prior judgment to preclude a subsequent action, . . . the court

in the first proceeding must have had jurisdiction over the

subject matter of the controversy and the precise issue upon

which the judgment was rendered."      Lloyd v. American Motor Inns,

Inc., 231 Va. 269, 271, 343 S.E.2d 68, 69 (1986) (emphasis

added).   If a court lacks jurisdiction to render a judgment, the

judgment has no preclusive effect.      See id.   Therefore, the

doctrine of res judicata provides no exception to the well

accepted principle of law that lack of subject matter

jurisdiction may be raised in any court at any time and a

judgment rendered by a court lacking subject matter jurisdiction

is void ab initio.   See Morrison v. Bestler, 239 Va. 166,

169-70, 387 S.E.2d 753, 755-56 (1990).

     For these reasons, we hold that the commission lacked

subject matter jurisdiction to award medical benefits for

injuries to claimant's back and neck allegedly sustained in the

1979 industrial accident.   Therefore, we reverse the




                               - 5 -
commission's ruling and vacate the award without reaching

employer's final assignment of error.

                                            Reversed and vacated.




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