Lawrence Campbell v. Newport News Shipbuilding & Dry Dock Co. & Huntington Ingalls Industries, Inc.

COURT OF APPEALS OF VIRGINIA Present: Judges O’Brien, Russell and Retired Judge Bumgardner* Argued at Norfolk, Virginia

UNPUBLISHED

LAWRENCE CAMPBELL

MEMORANDUM OPINION** BY v. Record No. 0055-18-1 JUDGE WESLEY G. RUSSELL, JR.

JULY 17, 2018 NEWPORT NEWS SHIPBUILDING AND DRY DOCK CO. AND HUNTINGTON INGALLS INDUSTRIES, INC.

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

(Lawrence Campbell, on brief), pro se. Appellant submitting on brief.

Bradley D. Reeser (Jonathan H. Walker; Mason, Mason, Walker & Hedrick, P.C., on brief), for appellees.

Lawrence Campbell appeals the December 7, 2017 decision of the Virginia Workers’ Compensation Commission finding that his claims for benefits related to a left wrist injury were barred by the applicable statute of limitations. For the reasons that follow, we affirm the decision of the Commission.

BACKGROUND Campbell was employed as a mechanic by Newport News Shipbuilding and Dry Dock Co. (“employer”) in 1972. He claims that, on or about May 1, 1972, he suffered a compensable injury by accident to his left wrist while working for employer. Campbell filed no claim for benefits at the time of his injury. He ceased working for employer in June 1972.

* Judge Bumgardner participated in the hearing and decision of this case in his capacity as a senior judge of this Court prior to July 1, 2018 and thereafter by designation pursuant to Code § 17.1-400(D).

**

Pursuant to Code § 17.1-413, this opinion is not designated for publication. Beginning in July 2016 and continuing through February 2017, Campbell filed four applications seeking benefits related to the 1972 wrist injury. The applications sought both medical and disability benefits related to the left wrist injury.

Employer denied the claim and asserted multiple defenses to the claims in the proceedings below. Most notably, employer argued that, even assuming Campbell suffered a compensable injury by accident in May 1972, the relevant statute of limitations ran long before he filed his first claim for benefits in 2016.

A hearing was held before a deputy commissioner on July 14, 2017.1 The deputy commissioner determined that the statute of limitations in effect at the time of the alleged injury in 1972, then Code § 65.1-87, applied to Campbell’s claims. In pertinent part, then Code § 65.1-87 provided that “the right to compensation under this Act shall be forever barred, unless a claim be filed with the . . . Commission within one year after the accident . . . .”

Given that the first application for benefits was filed more than forty-four years after the alleged injury by accident, Campbell argued that the statute of limitations had been tolled for the entirety of the forty-four years. The deputy commissioner noted that, at the time of the injury, the “General Assembly had not yet included in the Act a tolling provision that extended the Act’s statute of limitations if a claimant established that an employer had committed certain acts that prejudiced a claimant . . . .”2 The deputy commissioner found that the later enacted tolling provisions did not save Campbell’s claims and that, in any event, that Campbell, “in his testimony and in his responses to [employer’s] requests for admissions[,]” had “conceded the absence of the[] elements” necessary to trigger either equitable or statutory tolling if a tolling statute did apply. Accordingly, the deputy commissioner found that Campbell’s claims for benefits were “barred by the statute of limitations . . . .”

Campbell appealed the deputy commissioner’s decision to the full Commission. In its review opinion, the Commission, after a brief discussion of the underlying circumstances, “summarily adopt[ed], and incorporate[d] by reference, the determinations made” by the deputy commissioner.

Campbell then appealed to this Court.

ANALYSIS3

The essence of Campbell’s arguments on appeal is that the Commission erred in concluding that his claim was barred by the statute of limitations. Whether a claim is barred by the statute of limitations is a question of law that we review de novo. Philip Morris USA, Inc. v. Mease, 62 Va. App. 190, 198, 745 S.E.2d 155, 159 (2013).

At the outset, we note that the one-year statute of limitations found in the version of Code 65.1-87 that was in effect at the relevant time is applicable to Campbell’s claims. This is so because the “the right to interpose the defense of the statute of limitations [is] a substantive property right, constitutionally protected from infringement by retroactive legislation[,]” Kopalchick v. Catholic Diocese of Richmond, 274 Va. 332, 336, 645 S.E.2d 439, 441 (2007), and thus, once the claim became barred, no subsequent legislative change could remove the bar.

Here, Campbell alleges that he suffered a compensable injury by accident to his left wrist on or about May 1, 1972. There is no dispute that he did not file an application for benefits related to the alleged left wrist injury until July 2016, more than forty-four years after the alleged accident. Accordingly, unless tolled for some reason, the statute of limitations ran on May 1, 1973, barring any claims Campbell may have had regarding the injury to his left wrist.

As he did in the proceedings below, Campbell argues that the statute of limitations was tolled, and therefore, his claims were timely filed. We disagree.

Campbell’s arguments regarding statutory tolling are unavailing. Although a tolling provision regarding the statute of limitations for workers’ compensation claims has existed in some form in the Code of Virginia since the adoption of Code § 65.1-87.1 in 1984, there was no such statutory tolling provision when the bar of the statute of limitation attached to Campbell’s claim in 1973. As noted above, once the bar attached, the General Assembly was powerless to remove the bar by “retroactive legislation.” Kopalchick, 274 Va. at 336, 645 S.E.2d at 441. Given that Campbell’s injury by accident unquestionably occurred in 1972, no statute enacted after May 1, 1973 can revive Campbell’s claim, and the Commission did not err in so concluding.4

CONCLUSION

For the reasons stated above, Campbell’s claims related to his claimed left wrist injury are barred by the applicable statute of limitations. Accordingly, the judgment of the Commission is affirmed.

Affirmed.