                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Beales, Alston and Senior Judge Willis
UNPUBLISHED


              Argued at Alexandria, Virginia


              BARBARA WILLIAMS-DAVIDSON
                                                                             MEMORANDUM OPINION * BY
              v.     Record No. 1454-12-4                                    JUDGE ROSSIE D. ALSTON, JR.
                                                                                 FEBRUARY 26, 2013
              INOVA FAIRFAX HOSPITAL AND
               INOVA HEALTH SYSTEM FOUNDATION, INC.


                            FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                               Kathleen Grace Walsh (Law Office of Kathleen Grace Walsh, on
                               brief), for appellant.

                               Bryan M. Kirchner (Angela F. Gibbs; Emily S. Kirkpatrick; Midkiff,
                               Muncie & Ross, P.C., on brief), for appellees.


                     Barbara Williams-Davidson (claimant) appeals from an opinion of the Workers’

              Compensation Commission denying her claim for benefits. On appeal, claimant alleges the

              commission erred in ruling that claimant’s claim was barred by the statute of limitations.

              Because we hold that the statute of limitations was not tolled under Code § 65.2-602, we affirm.

                                                      I. BACKGROUND

                     “By well established principles, we view the evidence in the record in the light most

              favorable to the party prevailing before the commission,” in this case, employer. Boys and Girls

              Club of Virginia v. Marshall, 37 Va. App. 83, 85, 554 S.E.2d 104, 105 (2001).

                     So viewed, the evidence indicated that claimant suffered an injury to her knees on

              September 8, 2006, in the course of her employment with Inova Fairfax Hospital (employer) as a



                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
registered nurse. Immediately after her injury, claimant received treatment in employer’s

emergency room; claimant did not receive a bill for her treatment.

       On September 12, 2006, employer completed a first accident report regarding claimant’s

injury, but it was not submitted to the commission at this time. 1

       On August 13, 2008, employer’s insurer submitted employer’s first accident report to the

commission. On August 22, 2008, within two years of the date of claimant’s workplace

accident, the commission sent claimant a “blue letter,” notifying claimant that an accident had

been reported via an employer’s first accident report. 2 The letter also notified claimant of the

time limit by which she was required to file a claim for benefits, stating, “Your Claim for

Benefits (VWC Form No. 5) must be filed with the Commission within the following time limits:

[For] Injury by Accident – Two years from the date of your accident.” The letter stated that any

payments made by an employer without the entry of an award by the commission were voluntary

and that a claimant’s rights to future benefits may be lost if he did not file a claim for benefits

within the proper time limits.

       Between August and October 2008, claimant’s physician gave claimant injections to treat

her knees. During this time, claimant received no bills for the cost of the injections. However, at

some point in 2009, claimant attempted to fill a prescription for further injections, and the

pharmacy informed her that she would have to pay $1,300 out-of-pocket for them because they

were no longer covered by insurance.




       1
       Employer also alleges (and the commission found) that employer filed Form 45A, the
minor medical report, with the commission on October 17, 2006.
       2
        “The ‘blue letter’ is a standard notification letter sent by the commission that explains
an employee’s obligation to file a claim within two years from the date of injury.” Jones v.
Gwaltney of Smithfield, Ltd., 53 Va. App. 760, 764 n.3, 675 S.E.2d 220, 222 n.3 (2009).

                                                 -2-
       On February 17, 2009, more than two years after claimant’s workplace accident, claimant

received a second blue letter from the commission reiterating that all claims for benefits must be

filed with the commission within two years of the date of the accident.

       On July 25, 2009, claimant filed a claim for benefits before the commission, asserting

that she was unaware of the time limits for filing a claim. Approximately one month later, on

August 29, 2009, claimant filed a second claim for benefits and requested a hearing before the

deputy commissioner.

       At the hearing before the deputy commissioner, employer stipulated as to “the

compensability of the accident and the injury to both knees” but argued that the claim was barred

by the statute of limitations. Claimant testified before the deputy commissioner regarding the

2008 and 2009 blue letters. Claimant did not testify specifically whether or not she recalled

receiving the 2008 blue letter. When asked whether she contacted employer or employer’s

insurance carrier as suggested by the 2008 blue letter, claimant acknowledged she spoke to PMA

Insurance Company. Claimant also testified that she “really did[ not] remember” receiving the

2009 blue letter. Claimant did acknowledge, though, that both letters were sent to her address.

       The deputy commissioner dismissed claimant’s claim for benefits, finding that the statute

of limitations barred the claim and that there was no basis for tolling the statute of limitations

under Code § 65.2-602 because employer timely filed the accident report and the commission’s

notification and informal pamphlet was sent to claimant before the limitations period expired.

       Claimant filed a request for review by the commission, asserting the deputy

commissioner erred in finding that the claim was barred by the statute of limitations. Claimant

argued that, contrary to the deputy commissioner’s findings, employer’s first accident report was

not timely filed. In response, employer argued that the deputy commissioner found that



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employer’s first accident report was filed within the statute of limitations and that its failure to

timely file the first accident report did not prejudice claimant because she received notice of the

statute of limitations before its expiration.

        The commission reversed the deputy commissioner’s decision and remanded for a

hearing on the merits, finding that, contrary to the deputy commissioner’s finding, employer’s

first accident report was not timely filed with the commission. The commission found that

employer did not file the first accident report until August 13, 2008, only twenty-six days before

the statute of limitations expired and that claimant received the commission’s blue letter only

seventeen days before the statute of limitations ran out. The commission thus found that

claimant was prejudiced by employer’s failure to timely file the first accident report. The

commission concluded that claimant was not aware of her duty to file a claim “until she was

informed by [employer’s insurer] that they would no longer cover her medical treatment.”

        Employer filed a motion with the commission to vacate and reconsider its decision.

Employer argued that the timely filing of Form 45A, the minor injury report, prevented a finding

that the statute of limitations was tolled.

        On July 8, 2011, the commission vacated its earlier order and granted reconsideration of

the case. On August 2, 2012, the commission issued its opinion upon reconsideration and held

that claimant’s claim was barred by the statute of limitations. The commission stated that

“according to the Commission’s records,” employer filed a Form 45A minor medical report and

“[t]he Commission’s Red Guide was mailed to [claimant] on [10/26/06; and our] file also shows

that the guide was not returned by the postal service.” Because the commission found that

employer timely filed Form 45A and claimant received the red guide with notice of the two-year




                                                 -4-
statute of limitations, the commission held that Code § 65.2-602 did not toll the statute of

limitations. This appeal followed.

                                          II. ANALYSIS

       “Whether a claim is barred by the statute of limitations is a question of law. This Court

‘review[s] questions of law de novo.’” Tuck v. Goodyear Tire & Rubber Co., 47 Va. App. 276,

284, 623 S.E.2d 433, 437 (2005) (quoting Tomes v. James City Fire, 39 Va. App. 424, 430, 573

S.E.2d 312, 315 (2002) (internal quotation marks and citation omitted)).

       Code § 65.2-601 provides that the right to compensation under the Act is “forever barred,

unless a claim be filed with the Commission within two years after the accident.” Claimant’s

claim was filed on July 15, 2009, more than two years after the September 8, 2006 workplace

accident. Therefore, Code § 65.2-601 bars claimant’s claim unless an exception to the statute of

limitations applies.

       Code § 65.2-602 creates an exception to the two-year statute of limitations. It provides:

               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 his
               employer has filed the first report of accident as required by
               [Code] § 65.2-900 or he has received after the accident a workers’
               compensation guide described in [Code] § 65.2-201 or a notice in
               substantially the following form:

               NOTICE TO EMPLOYEE.

               BECAUSE OF THE ACCIDENT OR INJURY YOU HAVE
               REPORTED, YOU MAY HAVE A WORKERS’


                                                -5-
               COMPENSATION CLAIM. HOWEVER, SUCH CLAIM MAY
               BE LOST IF YOU DO NOT FILE IT WITH THE VIRGINIA
               WORKERS’ COMPENSATION COMMISSION WITHIN THE
               TIME LIMIT PROVIDED BY LAW. YOU MAY FIND OUT
               WHAT TIME LIMIT APPLIES TO YOUR INJURY BY
               CONTACTING THE COMMISSION. THE FACT THAT YOUR
               EMPLOYER MAY BE COVERING YOUR MEDICAL
               EXPENSES OR CONTINUING TO PAY YOUR SALARY OR
               WAGES DOES NOT STOP THE TIME FROM RUNNING.

       Under Code § 65.2-602, to toll the statute of limitations, a claimant must prove:

               (1) the employer received a notice of the accident as required by
               Code § 65.2-600; (2) the employer failed to timely file the report
               of an accident as required by Code § 65.2-900; and (3) the
               employer’s failure to timely file the report of an accident
               prejudiced claimant’s rights with “respect to [the] filing [of] a
               claim prior to . . . expiration of [a] statute of limitations.”

Hall v. Winn-Dixie Stores, Inc., 41 Va. App. 835, 839, 589 S.E.2d 484, 486 (2003) (quoting

Code § 65.2-602). “Without proof of prejudice, the commission cannot toll the two-year statute

of limitations.” Id. (citing Bristol Newspapers , Inc. v. Shaffer, 16 Va. App. 703, 706, 432

S.E.2d 23, 25 (1993)).

       As stated above, Code § 65.2-602 provides, in part, “[f]or 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 or a notice in substantially the

following form: [form language omitted].” Claimant received the commission’s blue letter on

August 22, 2008, seventeen days before the two-year statute of limitations expired on September

8, 2008. The blue letter clearly stated that a claim for benefits must be filed within two years of

the date of the accident. Because claimant received the blue letter after her accident and before

the statute of limitations expired, the clear and unambiguous language of Code § 65.2-602

dictates that her rights with respect to filing a timely claim were not prejudiced as a matter of




                                                -6-
law. 3 As a result, although claimant has proven that (1) employer received notice of the accident

and (2) employer failed to timely file the first accident report, claimant has not proven that

employer’s failure to timely file the first accident report “prejudiced claimant’s rights with

‘respect to [the] filing [of] a claim prior to . . . expiration of [a] statute of limitations.’” Hall, 41

Va. App. at 839, 589 S.E.2d at 486 (quoting Code § 65.2-602). Therefore, we hold that the

commission did not err in holding that claimant’s claim was barred by the statute of limitations. 4

                                                                                               Affirmed.




        3
          As it is unnecessary to do so under the circumstances of this case, we do not address
how the statute would be applied in a situation where a claimant received the guide even closer
in time to the expiration of the statute of limitations than claimant in the case at bar.
        4
          Because we reach our holding on the grounds that claimant received the commission’s
blue letter before the statute of limitations expired, we do not address the propriety of the
commission’s determination that employer timely filed Form 45A and claimant received the
commission’s red guide, or its holding that the filing of Form 45A and receipt of the red guide
prevented the tolling of the statute of limitations under Code § 65.2-602.

                                                   -7-
