Knott v. Virginia Beach Mariners, Inc., Record No. 0634-09-1 (Va. App. 12/8/2009)

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KEVIN CHRISTOPHER KNOTT v. VIRGINIA BEACH MARINERS, INC. AND UNINSURED EMPLOYER'S FUND

Record No. 0634-09-1.

Court of Appeals of Virginia.

December 8, 2009.

Appeal from the Virginia Workers' Compensation Commission

(Kevin Christopher Knott, pro se, on brief). Appellant submitting on brief.

(Robert A. Rapaport; Clarke, Dolph, Rapaport, Hull, Brunick & Garriott, P.L.C., on brief), for appellee Uninsured Employer's Fund. Appellee Uninsured Employer's Fund submitting on brief.

No brief for appellee Virginia Beach Mariners, Inc.

Present: Judges Frank, Alston and Senior Judge Coleman

MEMORANDUM OPINION^*

PER CURIAM

Kevin Christopher Knott (claimant) appeals the February 27, 2009 decision of the Workers' Compensation Commission (commission) denying payment of certain medical benefits and awarding a credit to employer against future compensation.¹ On appeal, claimant contends the treatment of his right shoulder and neck are encompassed within his compensable upper back injury. Therefore, he contends his claim is not barred by Code § 65.2-601's two-year statute of limitations and payment of certain medical benefits is appropriate. We agree, and reverse the commission's decision.

I. BACKGROUND

"On appeal `we view the evidence in the light most favorable to [employer], the party prevailing before the commission.'" Simms v. Ruby Tuesday's, Inc., 54 Va. App. 388, 390, 679 S.E.2d 555, 556 (2008) (quoting Great E. Resort Corp. v. Gordon, 31 Va. App. 608, 610, 525 S.E.2d 55, 56 (2008) (alteration in original). So viewed, the evidence established that claimant, a professional soccer player for the Virginia Beach Mariners, sustained a compensable workplace injury on April 5, 2005 when he collided with another soccer player at practice, fell from five or six feet in the air, and "rolled over [a] pole landing and striking the upper back." On November 28, 2006, claimant was awarded temporary total disability payments and medical benefits for the workplace injury to his back "for as long as necessary pursuant to [] Code § 65.2-603."

Over the course of his treatment, claimant was diagnosed with a sprain/strain of the thoracic spine, rib dysfunction, cervical instability, and upper back pain localized to the right scapular region. Claimant received numerous treatments, including physical therapy, trigger point injections, steroid treatments, acupuncture, myofascial therapies, scapular mobilization techniques, intra-articular injections, and prolotherapy treatments.² When claimant's pain could not be controlled with treatment, he was not cleared to play soccer for the 2006 season. He retired from professional soccer and accepted a position as director of coaching with a local youth soccer program.

On December 28, 2007, claimant filed a claim for benefits to hold employer and UEF³ liable for the cost of medical treatment provided by and through Johns Hopkins Physical Medicine and Rehabilitation (including treatment by Atlantic Physical Therapy). The UEF disputed claimant's entitlement to medical treatment for his right shoulder and neck on the ground that appellant failed to file a claim for injury to his shoulder or neck within two years of the workplace injury in violation of Code § 65.2-601.

On July 28, 2008, a deputy commissioner ruled on the matter. He concluded the only body part covered by the award of medical benefits was the injury to the back, and because claimant failed to preserve his claim for the right shoulder and neck injury, the claim was time-barred. On review, the full commission agreed with the deputy commissioner and concluded that the UEF was not responsible for any treatment of claimant's neck and right shoulder because the November 28, 2006 award was limited to the treatment of claimant's back. This appeal followed.

II. ANALYSIS

"On appeal, we are guided by the principle that the Workers' Compensation Act `is highly remedial.'" Corporate Resource Management v. Southers, 51 Va. App. 118, 126, 655 S.E.2d 34, 38 (2008) (en banc) (quoting Henderson v. Cent. Tel. Co., 233 Va. 377, 382, 355 S.E.2d 596, 599 (1987)). "Thus, the Workers' Compensation Act should be `liberally construed to advance its purpose of compensating employees for accidental injuries resulting from the hazards of the employment[.]'" Masonite Holdings, Inc. v. Cubbage, 53 Va. App. 13, 20, 668 S.E.2d 809, 812 (2008) (quoting Henderson, 233 Va. at 382, 355 S.E.2d at 599)). "`Although we are not bound by the commission's legal analysis on this or prior cases, we give great weight to the commission's construction of the Act, and we defer to the commission's factual findings if supported by credible evidence in the record.'" Southers, 51 Va. App. at 126, 655 S.E.2d at 38 (quoting Bay Concrete Construction Co. v. Davis, 43 Va. App. 528, 538-39, 600 S.E.2d 144, 150 (2004)).

Code § 65.2-601 provides, "[t]he 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." "Statutes of limitations `are designed to suppress fraudulent and stale claims from being asserted after a great lapse of time, to the surprise of the parties, when the evidence may have been lost, the facts may have become obscure because of a defective memory, or the witnesses have died or disappeared.'" Southers, 51 Va. App. at 127, 655 S.E.2d at 38 (quoting Street v. Consumers Mining Corp., 185 Va. 561, 575, 39 S.E.2d 271, 277 (1946)). "Whether the information filed with the commission is sufficient to construe a timely filed claim for a particular injury is a question of fact, and the commission's finding will not be disturbed on appeal if supported by credible evidence." Id.

The facts of this case are similar to the facts in Southers, and distinguishable from Shawley v. Shea-Ball Construction Company, 216 Va. 442, 219 S.E.2d 849 (1975). In Southers, claimant reported falling on her left shoulder. Southers' employer accepted as compensable the injury to her shoulder. "[C]ontemporaneously with the accident and prior to the expiration of the statute of limitations, claimant `consistently complained of pain in the lateral section of her [left] shoulder, which at times included neck pain and radiation . . . up the neck.'" Southers, 51 Va. App. at 129, 655 S.E.2d at 39 (alteration in original). There, we concluded that employer had timely notice of claimant's assertion that she injured her left shoulder area, and claimant received treatment for her neck, an interrelated body part. In contrast, the Court in Shawley upheld "the commission's finding that a timely claim for injuries to an employee's left ankle and right hip did not preserve a claim for injuries to...