Opinion
Record No. 1538-94-2
Decided: March 14, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Patricia A. Smith, pro se, on brief).
(Daniel E. Lynch; Williams Pierce, on brief), for appellees.
Present: Judges Barrow, Koontz and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Patricia Ann Smith appeals the decision of the Workers' Compensation Commission which denied her claims (1) that her neck problems were related to a 1985 industrial accident; (2) for payment of certain medical expenses; and (3) for permanent partial disability wage benefits. Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the commission's decision. Rule 5A:27.
Causal Relationship of Neck Problems to 1985 Industrial Accident
"The right to compensation under this title [65.2] shall be forever barred, unless a claim be filed with the Commission within two years after the accident." Code Sec. 65.2-601. It is the intent of this section that, within the time prescribed by the section, "an employee must assert against his employer any claim that he might have for any injury growing out of the accident." Shawley v. Shea-Ball Constr. Co., 216 Va. 442, 446, 219 S.E.2d 849, 853 (1975) (emphasis added) (construing former Code Sec. 65.1-87).
Smith's industrial accident occurred on August 9, 1985. She testified that she experienced neck discomfort "within two or three weeks after" the accident. She did not file an application concerning her neck condition until January 22, 1993. Accordingly, the commission did not err in finding that the application was barred by the statute of limitations contained in Code Sec. 65.2-601.
Medical Expenses
The evidence showed that Dr. Isaacs' treatment was related to Smith's neck problems. The MRI and radiologist expenses arose from that treatment. As noted above, any claim related to Smith's neck problems is barred.
The commission found that Smith failed to prove that the Henrico Pharmacy and Tidewater Riverside expenses were related to treatment for her injuries arising out of the industrial accident. Upon reviewing the record, we cannot say as a matter of law that Smith sustained her burden of proving this relationship. Smith presented no bills from these providers to the commission. Therefore, the commission was unable to determine why Smith sought the services of these providers. Accordingly, 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).
Finally, the commission found that Smith failed to prove that the Rappahannock Orthopaedics' expense was authorized by employer or an authorized physician. Again, we cannot say as a matter of law that Smith sustained her burden of proof on this point. The evidence showed that Smith began treating with Rappahannock Orthopaedics following a 1984 automobile accident. Although she continued treating with this provider after the industrial accident, the record contains no evidence that she received an authorization to do so. We therefore are bound by the commission's findings.
Permanent Partial Disability
Smith received payment for medical expenses, but received no compensation for the 1985 industrial accident. "In those cases where no compensation has been paid, the Commission may make an award under Sec. 65.2-503 [for permanent loss] within thirty-six months from the date of the accident." Code Sec. 65.2-708(B).
Smith's application for permanent partial disability benefits was made on January 22, 1993, more than thirty-six months after the 1985 industrial accident. Accordingly, the application was barred by the statute of limitations contained in Code Sec. 65.2-708(B).
Affirmed.