Opinion
Record No. 1413-92-4
December 4, 1992
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Jeremy Flachs, on brief), for appellant. Appellant submitting on brief.
(Charles P. Monroe; Friedlander, Misler, Friedlander, Sloan Herz, on brief), for appellees. Appellees submitting on brief.
Present: Judges Barrow, Moon and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
Joao Constantino (claimant) appeals a decision of the Virginia Workers' Compensation Commission (commission) which barred his claim pursuant to the two year limitation period of Code § 65.2-601 (former Code § 65.1-87). Claimant contends that the commission erred in concluding that withdrawal of his "Application for Hearing" also withdrew his claim. We agree and reverse the commission.
The parties are fully conversant with the record and this memorandum opinion recites only those facts necessary to a disposition of the issue before the Court.
Claimant sustained an injury to his "right foot" on May 13, 1987, while employed by Pito's Construction Company, Inc. (employer). On September 11, 1987, claimant forwarded an "Application for Hearing" to the commission, accompanied by a letter from counsel, all of which was filed on September 16, 1987. Thereafter, the parties entered into a "Memorandum of Agreement" for the payment of temporary total disability benefits, which the commission approved by an "Award" dated May 17, 1988.
On July 22, 1988, claimant filed a second "Application for Hearing," alleging a change in condition and requesting permanent partial disability benefits, and a hearing was scheduled for April 18, 1989. However, by letter of April 12, 1989, claimant's counsel requested the commission to "remove the claimant's 7/22/88 application from the hearing docket," because he had "been unable to contact [his] client for quite some months." Acting on this motion, the deputy commissioner entered an order which recited that, "inasmuch as the Commission has received verification from claimant's counsel that his client wishes to withdraw the pending application for hearing, the hearing scheduled for April 18, 1989 has been cancelled and the case ORDERED removed from the hearing docket this 18th day of April, 1989."
When claimant filed yet another "Application for Hearing," on March 13, 1992, it was rejected by the commission. On June 29, 1992, the full commission reviewed the record on appeal and concluded that claimant's "request to withdraw his earlier `Application for Hearing' constituted a withdrawal of his claim," which "time-barred" the "most recent application."
Code § 65.2-601 (former Code § 65.1-87) provides that the right to compensation is "forever barred, unless a claim be filed" within two years after the accident. Keenan v. Westinghouse Elevator Co., 10 Va. App. 232, 233, 391 S.E.2d 342, 343 (1990). "Application for Hearing" forms and "letters sent to the commission from claimants or their attorneys" are "sufficient to meet the requirement for filing a claim." Id.
In Keenan, the claim was filed by "a letter from counsel" and a "Claim and Agreement to Retain Counsel" form. Id. at 233-34, 391 S.E.2d at 343. Keenan later filed an "Application for Hearing," which was subsequently withdrawn. The commission then entered an order which "cancelled" the "hearing" and "ORDERED" the "case" from "the hearing docket." Id. at 234, 391 S.E.2d at 343. When Keenan filed a second "Application for Hearing," it was rejected, the commission ruling that "the earlier request to withdraw the `Application for Hearing' constituted a withdrawal of the claim." Id. We reversed, however, finding that "withdrawal of an `Application for Hearing,' where the `Application' did not serve to file the `claim,' does not constitute withdrawal of the claim." Id. at 236, 391 S.E.2d at 344.
Here, counsel's September 11, 1987 letter and accompanying "Application for Hearing," followed by the commission's approval of a compensation agreement, styled "AWARD," sufficiently established the claim. The correspondence and "Application" "identified the claimant, the employer and its address, and the date and nature of the injury, and this information sufficed to satisfy the filing requirements."Id. at 234, 391 S.E.2d at 343. Like Keenan, the commission's order "made no reference to the claim being withdrawn or dismissed," id., but merely recited that claimant had "withdraw[n] the pending application for hearing." The order did not direct the removal of the case "from the commission's docket, but rather `cancelled' the hearing and ordered the case from the `hearing docket.'" Id. at 235, 391 S.E.2d at 344.
Nothing in this record "establishes that the claimant withdrew or intended to withdraw his claim, or that the commission ordered that the claim be dismissed." Id. Instead, the record confirms that claimant simply withdrew his July 22, 1988 "Application for Hearing," which "was not the vehicle by which his claim was filed," and not the claim itself. Id.
Accordingly, we reverse the decision of the commission and remand the case for further proceedings.
Reversed and remanded.