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ROUNTREE CONSTRUCTION COMPANY, INC., et al.
COURT OF APPEALS OF VIRGINIA
Present: Judges Clements, Agee
Argued at Richmond, Virginia
Record No. 2166-02-2
WILLIAM R. MARVIN
ROUNTREE CONSTRUCTION COMPANY, INC. AND
COMMONWEALTH CONTRACTORS GROUP
BY JUDGE JEAN HARRISON CLEMENTS
SEPTEMBER 9, 2003
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Gregory O. Harbison (Elizabeth C. Griffin;
Geoffrey R. McDonald & Associates, on brief),
Mark S. Davis (Carr & Porter LLC, on brief),
William R. Marvin (claimant) appeals a decision of the
Workers’ Compensation Commission (commission) denying his July
27, 1999 change-in-condition application seeking permanent
partial disability compensation benefits. The commission ruled
that the claim was time-barred by Code ? 65.2-708(A). Finding
no error, we affirm the commission’s decision.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and incidents of
the proceedings as are necessary to the parties’ understanding
of the disposition of this appeal.
The relevant facts in this case are not in dispute. On
October 10, 1997, claimant sustained a compensable injury by
accident when his left arm was crushed between the bucket of a
backhoe and a trench box. As a result of that accident,
claimant suffered "considerable soft tissue damage" to
arm, requiring extensive vascular surgery, and a severe left arm
fracture, requiring orthopedic surgery. Two additional
surgeries were performed prior to claimant’s discharge from the
hospital. His claim was accepted, and an award was entered for
temporary total disability compensation benefits on February 5,
On February 16, 1998, Dr. John J. Harrington, D.O., who was
treating claimant for pain, observed that the range of motion of
claimant’s left arm was "approximately 60% of normal"
elbow and "75%" at the wrist. Dr. Harrington further
that claimant had difficulty moving some of the fingers on his
left hand probably due to nerve injury. Claimant was receiving
physical therapy three times per week.
On March 10, 1998, Dr. H. Steven Cline, one of claimant’s
treating orthopedic physicians, evaluated claimant, noting
claimant had "increased range of motion of his left upper
extremity and no significant pain." Dr. Cline also reported
that claimant was "working on range of motion, doing
well." He recommended continued "aggressive physical
On that same date, Dr. Harry J. Molligan, another of claimant’s
treating orthopedic physicians, released claimant, effective
March 11, 1998, to sedentary work, with no "use of [his] left
The medical records filed in this case do not reflect any
treatment of claimant’s condition between March 10, 1998, and
October 3, 2001.
On April 23, 1998, employer filed a change-of-condition
application with the commission, alleging claimant had recently
been convicted of felony offenses and had "removed himself
[the] job market" due to his incarceration. On July 17,
the commission found that claimant was incarcerated while able
to perform light duty work and suspended his benefits pursuant
to Code ? 65.2-510.1 as of April 24, 1998, the last day for
which compensation had been paid.
On July 27, 1999, claimant, proceeding pro se, filed a
change-in-condition application alleging "permanent nerve
damage/mobility" of his left arm and seeking, inter alia,
permanent partial disability compensation benefits. By letter
dated August 6, 1999, the commission acknowledged receipt of
claimant’s July 27, 1999 application and informed him, inter
alia, that his request of permanent disability benefits was
being "placed on hold" pending his submission of
documentation reflecting that [his] injuries have reached
maximum medical improvement together with the disability
rating." The commission further informed claimant that
further action [could] be taken . . . pending receipt of the
above requested documentation."
On November 14, 2001, claimant, by counsel, filed a
change-in-condition application for permanent partial disability
compensation benefits. Attached to the application was a note
from Dr. Molligan dated October 3, 2001, concluding that
claimant’s injury had resulted in a "permanent functional
impairment of his left" arm and that claimant had
point of maximum medical improvement." Dr. Molligan further
noted that, while claimant’s wounds and fracture were "well
healed" and his left hand was neurologically intact, he
pronation and supination in his left forearm, "probably due
synostosis or a connection of bone across the forearm at about
the elbow region." Dr. Molligan also stated in his note
discussed with claimant "the possibility of further surgery
alleviate this" condition, but, acknowledging he was
"functioning fairly well" and fearing "a worse
surgery, claimant decided he did not want further surgery on his
Also attached to claimant’s November 14, 2001 application
was an October 21, 2001 report from Dr. Eric Mein, assigning a
rating of "34% upper extremity impairment" to
arm. Dr. Mein based his rating on decreased flexion, extension,
pronation, and supination at the elbow, as well as a decreased
range of motion of the wrist and fingers.
By letter dated December 21, 2001, the deputy commissioner
acknowledged "receipt of . . . claimant’s applications
July 27, 1999, and November 14, 2001," and informed the
that the case had been "selected . . . for a determination
the record." The deputy commissioner further informed the
parties that they were to provide written notice to him within
ten days if they "believe[d] a trial-type evidentiary
[was] necessary." Neither party requested an evidentiary
On March 7, 2002, the deputy commissioner issued an opinion
finding that claimant’s claim for permanent partial disability
benefits was barred by the three-year statute of limitations of
Code ? 65.2-708(A) because "claimant offered no
the "medical evidence fail[ed] to demonstrate any permanent
impairment" within three years of the date for which
compensation was last paid.
On July 26, 2002, the full commission issued an opinion
affirming the deputy commissioner’s ruling. The majority of the
full commission concluded (1) that claimant’s November 14, 2001
application was time-barred under Code ? 65.2-708(A) because it
was not filed within three years of the date claimant was last
paid compensation on April 24, 1998,and
(2) that, although
claimant timely filed his application of July 27, 1999, that
claim was likewise time-barred under Code ? 65.2-708(A) because
claimant failed to present any evidence of a permanent
disability occurring within the requisite three-year time
On appeal, we view the evidence in the light most favorable
to the party prevailing below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
supported by credible evidence, the factual findings of the
commission are binding on appeal." Tomes v. James City
of) Fire, 39 Va. App. 429, 430, 573 S.E.2d 312, 315 (2002).
However, "we review questions of law de novo," Rusty’s
Serv. v. Gibson, 29 Va. App. 119, 127, 510 S.E.2d 255, 259
(1999) (en banc), mindful that, "[w]hile the provisions of
Virginia [Workers' Compensation] Act are to be liberally
construed to see that [the Act's] benefits are awarded to
injured employees, that principle [neither] authorize[s] the
courts to amend, alter or extend its provisions, nor . . .
require[s] that every claim asserted be allowed," Bowden v.
Newport News Shipbuilding & Dry Dock Co., 11 Va. App. 683,
401 S.E.2d 884, 887 (1991). While we generally give great
weight and deference, on appeal, to the commission’s
construction of the Workers’ Compensation Act, we are "not
by the commission’s legal analysis in this or prior cases."
U.S. Air, Inc. v. Joyce, 27 Va. App. 184, 189 n.1, 497 S.E.2d
904, 906 n.1 (1998).
Claimant contends, on appeal, that his timely filed July
27, 1999 claim was not time-barred because his application and
the October 2001 medical reports of Drs. Molligan and Mein
constituted evidence of a "present and existing"
partial disability occurring within the three-year period
required by statute. It defies logic, he argues, to conclude
that his permanent medical condition, as described in the
medical reports of Drs. Molligan and Mein in October 2001, did
not exist as of April 24, 2001. He further asserts that he was
denied the opportunity to present evidence on his claims as a
result of the commission’s decision to make an on-the-record
determination and that it would be a grave injustice to deny him
an opportunity to testify at an evidentiary hearing while
denying benefits, in part, on the lack of testimony and evidence
in the record. We find claimant’s arguments to be without
We begin by noting that the record belies claimant’s
assertion that he was denied the opportunity to testify and
otherwise present evidence at an evidentiary hearing. In his
letter of December 21, 2001, the deputy commissioner
specifically advised claimant of this right. Claimant, however,
did not request such a hearing until the deputy commissioner
rendered a decision adverse to him. Any injustice or detriment
to claimant is not the result of commission error.
We turn next to the crux of claimant’s assignment of error.
As relevant to the facts of this case, Code ? 65.2-708(A)
requires that an application alleging a change in condition be
filed within thirty-six months from the last day for which
compensation was paid. See Southwest Va. Tire, Inc. v. Bryant,
31 Va. App. 655, 660, 525 S.E.2d 563, 566 (2000). Furthermore,
we construe the provision of Code ? 65.2-708(A) that "[n]o
review shall be made after twenty-four months from the last day
for which compensation was paid . . . except . . . thirty-six
months from the last day for which compensation was paid shall
be allowed for the filing of claims payable under ?
mean that the change in condition must occur within thirty-six
months from the last day for which compensation was paid. See
id. The issue, then, is whether the evidence presented by
claimant established that his permanent partial disability
occurred within thirty-six months of April 24, 1998, the last
day for which he was paid compensation, as required by Code
? 65.2-708(A). We hold that it did not.
Claimant timely filed his application on July 27, 1999,
alleging "permanent nerve damage/mobility" of his left
seeking permanent partial disability compensation benefits.
However, relying strictly on his medical records, claimant
offered no testimony or other non-medical evidence to the
commission. By itself, the medical evidence fails to show that
claimant’s permanent disability occurred within three years of
April 24, 1998.
On February 16, 1998, Dr. Harrington observed that claimant
had a decreased range of motion of his elbow and wrist and
trouble moving several fingers. However, on March 10, 1998,
Dr. Cline noted claimant had increased motion of his left arm
and no significant pain. Claimant, who had been treated with
physical therapy in the interim, was advised to continue with
aggressive physical therapy. Dr. Molligan then released
claimant to light duty work effective March 11, 1998. As of
that date, none of claimant’s doctors had stated that claimant’s
impairment, which had improved in March 1998, was permanent.
From that point, the record is devoid of further medical
evidence of claimant’s condition until October 2001, well after
the thirty-six month statute of limitations period had expired.
Although Dr. Molligan concluded at that time that claimant’s
injury had resulted in a "permanent functional impairment
left" arm, the commission concluded that claimant had
no evidence that the impairment medically documented in March
1998 continued unabated until October 2001 or resulted in a
permanent impairment prior to October 2001. These factual
findings of the commission are supported by the record and are,
therefore, binding on appeal.
Hence, we conclude the commission did not err in finding
that claimant’s claim was time-barred by Code ? 65.2-708(A).
Accordingly, we affirm the decision of the commission.
participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
Code ? 17.1-413, this opinion is not
designated for publication.
not challenge this finding by the