Bernard L. Dinicola, Jr. v. Target Corporation

COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, McClanahan and Senior Judge Willis

BERNARD L. DINICOLA, JR.

MEMORANDUM OPINION * v. Record No. 0689-08-4 PER CURIAM SEPTEMBER 23, 2008 TARGET CORPORATION

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION (Bernard L. DiNicola, Jr., pro se, on brief).

(Joseph F. Giordano; Semmes, Bowen & Semmes, on brief), for appellee.

Bernard L. DiNicola, Jr. (claimant) appeals a decision of the Workers’ Compensation Commission finding that (1) the deputy commissioner did not abuse his discretion in granting Target’s (employer) motion for protective order, not granting the motion to compel, and not striking employer’s defenses; (2) claimant’s claim, filed on April 17, 2007, alleging an injury by accident occurring on January 21, 2003, or on another day between February 15, 2003 and February 20, 2003, was barred by the two-year statute of limitations contained in Code § 65.2-601; (3) the tolling provisions contained in Code § 65.2-602 did not apply; (4) employer was not estopped from defending the claim on statute of limitations grounds; (5) the doctrine of imposition did not apply to save the claim from the bar of the statute of limitations; and (6) in the alternative, even if the claim was determined to be timely filed, it was not compensable, as claimant failed to prove his injury was caused by an identifiable incident or sudden precipitating event resulting in an obvious, sudden mechanical or structural change in the body. The commission also denied claimant’s petition to re-open the record for receipt of an October 30, 2007 medical report. 1 We have reviewed the record and the commission’s opinion and find that this appeal is without merit. Accordingly, we affirm for the reasons stated by the commission in its final opinion. See DiNicola v. Target, VWC File No. 215-13-49 (Feb. 27, 2008). We dispense with oral argument and summarily affirm because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process. See Code § 17.1-403; Rule 5A:27.

Affirmed.