Lynchburg Foundry v. Robert F. Cyrus ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Willis
Argued at Salem, Virginia
LYNCHBURG FOUNDRY and
ARGONAUT INSURANCE COMPANY
MEMORANDUM OPINION * BY
v. Record No. 2816-96-3 JUDGE SAM W. COLEMAN III
JUNE 3, 1997
ROBERT F. CYRUS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
J. Gorman Rosenberger, Jr. (Wilson, Garbee &
Rosenberger, on briefs), for appellants.
(P. Scott De Bruin; Joseph R. Johnson, Jr. &
Associates, on brief), for appellee.
The Workers' Compensation Commission denied the claimant's
application for permanent partial disability benefits filed
pursuant to Code §§ 65.2-503 and -708. The employer defended the
claim on the grounds that the claim was barred by the statute of
limitations and that the claimant was not entitled to a
permanency rating for the injury. The commission held that the
claim was not barred by the statute of limitations because the
employer paid the claimant's salary during his disability and
failed to file a Memorandum of Agreement. On the merits, the
commission ruled that Code § 65.2-503 does not provide for a
permanency rating for loss of use of a shoulder, and therefore,
the commission held that the claimant was not entitled to
benefits. The claimant did not appeal that decision and it is
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
final. Thus, the employer prevailed on the merits of the claim
before the commission.
Despite the employer having prevailed on the merits, the
employer appeals the commission's decision that the statute of
limitations did not bar the claim. In support of its contention
the employer cites Lynchburg Foundry Co. v. McDaniel, 22 Va. App.
307, 311, 469 S.E.2d 85, 87 (1996), for the proposition that Code
§ 65.2-708(B) precludes the claimant from seeking an award for
permanent partial disability when he purportedly did not file a
claim within thirty-six months from the date of this injury.
Assuming that the employer's argument has merit and the
commission erred in holding that the statute of limitations did
not bar the claim, nevertheless, a decision by us in the
employer's favor would have no affect upon this claim.
Regardless of our decision, we could grant no relief. We do not
decide cases where no justiciable controversy is pending or
remains to be determined. See City of Fairfax v. Shanklin, 205
Va. 227, 229, 135 S.E.2d 773, 775 (1964). A suit seeking an
advisory opinion, a decision upon a moot question, or an answer
to a speculative inquiry will not be undertaken by a court. Blue
Cross and Blue Shield of Va. v. St. Mary's Hosp. of Richmond,
Inc., 245 Va. 24, 36, 426 S.E.2d 117, 123 (1993).
The commission's denial of benefits to the claimant is a
final decision. For us to consider the commission's decision on
the issue of whether the claim for a permanency rating is barred
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by the statute of limitations would serve no purpose because no
pending controversy exists between the parties. We will not
render an advisory opinion on whether the claim is barred by the
statute of limitations merely because the employer harbors some
apprehension that the claimant may in the future file another
claim.
Accordingly, because the decision of the commission denying
the claimant benefits for a shoulder permanency rating is final
and has not been appealed, we do not decide the statute of
limitations issue as applied to the shoulder claim. However,
because the decision on the merits of the claimant's shoulder
injury rating renders moot and of no effect the commission's
decision on the statute of limitations issue, we vacate the
commission's decision concerning the statute of limitations.
Decision vacated and
appeal dismissed.
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