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ANDREWS v. WESTVACO CORPORATION, et al.



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ANDREWS

v.

WESTVACO CORPORATION, et al.


SEPTEMBER 19, 2000

Record No. 0999-00-3

Present: Chief Judge Fitzpatrick, Judge
Bumgardner and

Senior Judge Hodges

MICHAEL A. ANDREWS

v.

WESTVACO CORPORATION AND

WESTVACO CORPORATION, SEDGWICK JAMES

OF THE CAROLINAS, INC.

FROM THE VIRGINIA WORKERS’ COMPENSATION
COMMISSION


MEMORANDUM OPINION[1] PER CURIAM

(Michael A. Andrews, pro se, on
brief).

No brief for appellees.

Michael A. Andrews (claimant) contends that the
Workers’ Compensation Commission erred in finding that his August
11, 1999 application alleging a change-in-condition was barred by
the applicable statute of limitations contained in Code
? 65.2-708. Upon reviewing the record and opening brief, we
conclude that this appeal is without merit. Accordingly, we
summarily affirm the commission’s decision. See Rule
5A:27.
[2]

On appeal, we view the evidence in the light
most favorable to the prevailing party below. See R.G.
Moore Bldg. Corp. v. 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).

On September 15, 1994, claimant sustained a
work-related injury to his right foot. Employer accepted the
claim and paid claimant temporary total disability benefits from
December 8, 1995 through February 26, 1996. Commencing December
12, 1996, the commission awarded claimant permanent partial
disability benefits, for a period of twelve and one-half weeks,
ending on or about March 9, 1997.

Claimant obtained treatment for his foot injury
from Dr. Stephen Hurwitz. By October 3, 1997, Dr. Hurwitz
recommended no further treatment for claimant and opined that
claimant had reached maximum medical improvement.

On March 1, 1999, claimant returned to Dr.
Hurwitz, complaining of occasional sharp shooting pain in his
foot. Radiographs were normal, and there was no evidence of
fracture. Dr. Hurwitz determined that no further follow-up visits
were necessary beyond March 1, 1999.

On August 11, 1999, claimant filed a letter
with the commission, which was treated as an application seeking
temporary total disability benefits for March 1, 1999. In that
letter and in claimant’s written statement on review, he asserted
that certain representatives of employer and its insurer caused
him to believe that he would be paid compensation for March 1,
1999, and, therefore, he did not file a claim until August 11,
1999. Claimant presented no evidence to support his bare
allegations.

Code ? 65.2-708 provides that an
application for a change-in-condition must be filed within
twenty-four months from the date for which compensation was last
paid. Here, claimant was last paid compensation for March 9,
1997. He did not file his application until August 11, 1999, more
than twenty-four months after March 9, 1997. Moreover, we find no
basis in the record to support claimant’s allegations that he
failed to file a timely claim because of employer’s and its
insurer’s conduct.

For these reasons, we affirm the commission’s
decision.

Affirmed.

FOOTNOTES:

[1] Pursuant to Code
? 17.1-413, recodifying Code ? 17-116.010, this
opinion is not designated for publication.

[2] Because we summarily
affirm the commission’s decision, we need not address the
appellees’ motion to dismiss filed on August 31, 2000.

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