Dirk Neal Campbell v. Lyntool, Inc. and Merchants ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Overton
DIRK NEAL CAMPBELL
MEMORANDUM OPINION*
v. Record No. 1529-00-3 PER CURIAM
OCTOBER 31, 2000
LYNTOOL, INC. AND
MERCHANTS OF VIRGINIA GROUP
SELF-INSURANCE ASSOCIATION
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Philip B. Baker; Sanzone & Baker, P.C., on
brief), for appellant.
(Kathryn Spruill Lingle; Brenner, Evans &
Yoffy, P.C., on brief), for appellees.
Dirk Neal Campbell (claimant) contends that the Workers'
Compensation Commission erred in finding that his claims for an
award of medical benefits related to his left leg injury and for
an award of permanent partial disability benefits for impairment
to his left leg were barred by the applicable statute of
limitations. Upon reviewing the record and the briefs of the
parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision. See
Rule 5A:27.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Unless we can say as a matter of law that claimant's evidence
sustained his burden of proof, the commission's findings are
binding and conclusive upon us. See Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
The evidence proved that on September 8, 1995, claimant
sustained a compensable injury by accident while working for
Lyntool, Inc. (employer). Employer's First Report reflected an
injury to claimant's right leg. Pursuant to a Memorandum of
Agreement executed by the parties on June 11, 1996, the
commission entered an award for compensation and medical
benefits related solely to an injury to claimant's right leg.
On July 26, 1997, the commission entered an award for
compensation benefits for an additional period of disability.
On May 23, 1997, claimant filed a letter application with
the commission alleging a change-in-condition with regard to his
September 8, 1995 accident. This application did not refer to a
left leg injury or make any claim for a left leg injury.
Claimant sought additional temporary partial disability
benefits.
On March 2, 1998, claimant filed a "Request for Hearing"
seeking payment for medical treatment related to a left leg
injury that he claimed occurred on September 8, 1995, the
original accident date. On June 24, 1998, the commission held a
hearing with respect to the May 23, 1997 change-in-condition
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application and the March 2, 1998 claim for payment of medical
expenses related to the left leg.
By letter dated August 4, 1998, claimant's counsel
requested that the commission enter an order allowing him to
non-suit the March 2, 1998 claim with respect to injury and
treatment of the left extremity arising from the accident of
September 9, 1995. He wrote that claimant did not "wish to
proceed with the issue of temporary partial disability and our
claim thereunder." On September 30, 1998, the deputy
commissioner rendered an opinion dismissing the March 2, 1998
claim without prejudice per claimant's request. The deputy
commissioner specifically noted that "[w]e expressly make no
finding as to whether this claim may be time-barred." Neither
party appealed the dismissal of the March 2, 1998 claim with
respect to injury to the left leg.
On September 8, 1998, claimant filed a claim requesting an
award of lifetime medical benefits as to his lower left
extremity and permanent partial disability benefits for
impairment of his lower left extremity related to his original
accident of September 8, 1995. On July 1, 1999, claimant's
counsel requested that his September 8, 1998 claim be docketed
for a hearing with respect to a determination that the lower
left extremity is causally related to the September 8, 1995
accident and for an award of permanent partial disability
benefits for the left and right lower extremities.
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In ruling that claimant failed to file a timely claim for
medical benefits related to his left leg injury or for permanent
partial disability benefits related to left leg impairment, the
commission found as follows:
The Agreements, the Employer's First Report
of Accident, and other records filed with
the Commission fail to indicate any claim
for an accident with an injury to the left
leg until March 2, 1998. The May 23, 1997,
claim for a change in condition cannot be
construed as being for a left leg. This
claim does not specifically identify that
benefits were sought for a left extremity
injury. In addition there had never been a
claim for an injury to the left leg thus
there could be no change in condition claim
for this injury. The only claim for which
an agreement was reached and an Award
entered was for the right leg. That counsel
was aware that the May claim was not for the
left extremity is evidenced by the later
filing of a claim for the left leg on March
2, 1998. After a hearing in which evidence
was taken on both claims, claimant's counsel
. . . requested that the March 2, 1998,
claim be non-suited. This was done by
Opinion of September 30, 1998. This opinion
also adjudicated all issues raised by the
May 23, 1997 claim. No appeal was taken
from this decision. Counsel did not refile
any claim until September 8, 1998.
. . . [I]n order to assert a claim for
a left extremity injury, a claim must have
been filed with the Commission on or before
September 8, 1997. The first claim filed
asserting a left knee injury was on March 2,
1998. This claim was withdrawn and
dismissed. We also note that it was not a
timely claim in that it was filed more than
two years after the date of accident. For
the same reason, the September 8, 1998, and
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July 1, 1999, claims for the left extremity
were not timely filed.
(Footnote omitted.)
The commission's findings are amply supported by the
record. No evidence in the record established that claimant
filed a claim for medical benefits related to treatment of his
left leg within the applicable statute of limitations provided
in Code § 65.2-601. The fact that there may have been
references to a left leg injury in claimant's medical records or
that employer may have paid medical expenses at some point in
time related to treatment of claimant's left leg did not negate
claimant's statutory obligation to file a timely claim with
regard to his left leg to invoke the commission's jurisdiction.
Claimant was aware, as early as April 17, 1997, that employer
specifically denied responsibility for treatment of his left
leg. Claimant's counsel confirmed this in his July 15, 1997
correspondence to the carrier. Yet, claimant failed to file a
claim for treatment related to his left leg until March 2, 1998,
more than six months after the two-year statute of limitations
expired. Furthermore, appellant non-suited the March 2, 1998
claim and did not refile it until September 8, 1998, again well
outside the applicable two-year limitations period.
We also find no merit in claimant's argument that Code
§ 65.2-708(A) somehow saved his claim from the bar of the
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statute of limitations. Code § 65.2-708(A) provides in
pertinent part as follows:
No such review [of any award] shall be made
after twenty-four months from the last day
for which compensation was paid, pursuant to
an award . . . except: (i) thirty-six months
from the last day for which compensation was
paid shall be allowed for the filing of
claims payable under § 65.2-503 . . . .
Thus, a review pursuant to Code § 65.2-708(A) requires the
existence of a prior award. See Lynchburg Foundry Co. v.
McDaniel, 22 Va. App. 307, 311, 469 S.E.2d 85, 87 (1996).
Appellant did not file a claim for an injury to his left
leg within two years of the accident date. No prior award
existed with respect to his left leg injury. "Thus, . . . Code
§ 65.2-708(A) did not save [his] . . . claim [for medical
expenses] from the jurisdictional bar of Code § 65.2-601." Id.
Code § 65.2-708(B) provides that "'[i]n those cases where
no compensation has been paid, the Commission may make an award
under § 65.2-503 within 36 months from the date of the
accident.'" Id. (citation omitted). Although Code
§ 65.2-708(B) does not require a prior award, it requires that a
claimant file a claim for the specific injury alleged within two
years of the accident as required by Code § 65.2-601. See id.
at 311-12, 469 S.E.2d at 88 (where original claim for injury was
filed within two years of accident, claim for permanent partial
disability benefits was filed within thirty-six months of
accident, and no compensation had been paid, permanent partial
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disability benefits were awardable under Code § 65.2-708(B)).
Because claimant failed to file a timely claim for a left leg
injury under Code § 65.2-601, Code § 65.2-708(B) did not act to
save his September 8, 1998 claim for permanent partial
disability benefits related to his left leg.
For these reasons, we affirm the commission's decision.
Affirmed.
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