Opinion
Record No. 0516-93-2
October 19, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(W. Lester Duty; Duty Duty, on brief), for appellant.
(Ralph L. Whitt, Jr.; Barbara J. Balogh; Sands, Anderson, Marks Miller, on brief), for appellees.
Before: Judges Baker, Elder and Fitzpatrick.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the Workers' Compensation Commission (commission). Rule 5A:27.
Larry W. Eppes, Sr. (Eppes) contends that the commission erred in finding that his application and amended application seeking permanent disability benefits were barred by the applicable statute of limitations contained in Code § 65.2-708.
Eppes sustained a compensable injury by accident on May 4, 1988. Old Dominion Masonry, Inc. (employer) voluntarily paid Eppes compensation benefits from May 5, 1988 through September 15, 1989. The commission entered an award on November 16, 1990, providing temporary total disability compensation retroactively through September 15, 1989 and finding that the employer properly suspended compensation as of September 15, 1989. On November 12, 1992, Eppes filed a change in condition application seeking permanent disability benefits, stating that the last date for which compensation was paid was September 15, 1989. The claims division rejected this application as barred by the statute of limitations. On December 8, 1992, Eppes filed an amended application seeking the same permanent disability benefits, but claiming that compensation was last paid on November 16, 1990.
The commission found that Eppes' application was barred by the statute of limitations contained in Code § 65.2-708 because it was filed more than three years from September 15, 1989, the date for which compensation was last paid.
There is no evidence that Eppes was paid any compensation after September 15, 1989. However, Eppes argues that the correct limitation period to be applied to his application is two years from the November 16, 1990 commission award.
Code § 65.2-708(A)(i) clearly and unequivocally provides that a claim for permanent disability benefits must be filed within three years from the last day for which compensation was paid,not from the date of the award.
In this case, the three-year time period expired on September 15, 1992. Eppes' application and amended application were not timely filed. Accordingly, we cannot say that the commission erred in refusing to docket his applications.
Affirmed.