Opinion
Record No. 1496-94-3
Decided: March 14, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Clifton A. Woodrum; Mary L. Poletti; Dodson, Pence, Viar, Woodrum Mackey, on brief), for appellant.
(Wilburn C. Dibling, Jr., City Attorney; Steven J. Talevi, Assistant City Attorney, on brief), for appellee.
Present: Judges Baker, Elder and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
William E. Bandy (Bandy) contends that the Workers' Compensation Commission (commission) erred in finding that (1) his application for compensation for an occupational disease was barred by the applicable statute of limitations, and (2) the City of Roanoke Fire Department (employer) rebutted the statutory presumption created by Code Sec. 65.2-402 by competent medical evidence. 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. Rule 5A:27.
On appellate review, we construe 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).
Code Sec. 65.2-406(A) (5) required that Bandy file his claim with the commission within two years after communication to him that he suffered from a disease which arose out of and in the course of his employment as a firefighter. The burden was upon Bandy to prove that he complied with this section. Clinchfield Coal Co. v. Kincaid, 216 Va. 27, 29, 215 S.E.2d 638, 639 (1975). Unless we can say as a matter of law that Bandy's evidence sustained this burden, the commission's findings are binding and conclusive upon us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
The commission found that on March 14, 1990, Dr. William C. Ward, Bandy's family physician, restricted Bandy from working, and told Bandy that his employment as a firefighter caused stress which aggravated Bandy's hypertension. It was undisputed that Bandy did not file a claim with the commission until October 19, 1992. Based upon these findings, the commission held that Bandy's claim was time-barred, because it was filed more than two years after Bandy was told that he suffered from a disease arising out of and in the course of his employment.
Dr. Ward's April 1, 1993 deposition testimony supports the commission's findings. Dr. Ward, who had been Bandy's family physician since 1980, began treating Bandy for hypertension in 1987. Dr. Ward testified that hypertension is a state of elevated blood pressures. Dr. Ward stated that, on March 14, 1990, he restricted Bandy from working as a firefighter. Dr. Ward testified that "it is reasonable to assume" that he told Bandy that he was restricting him from working, because Bandy's job, which was highly stressful, was causing an elevation of his blood pressure levels and an aggravation of his hypertension. Bandy agreed that Dr. Ward communicated this information to him in March 1990. From this evidence, the commission could reasonably infer that, in March 1990, Bandy was aware that he suffered from a disease which was caused by his employment. "Where reasonable inferences may be drawn from the evidence in support of the commission's factual findings, they will not be disturbed by this Court on appeal." Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988).
Thus, based upon the testimony of Bandy and Dr. Ward, we cannot say as a matter of law that the commission erred in denying Bandy's application on the basis that it was time-barred pursuant to Code Sec. 65.2-406. Since our holding on this issue disposes of this appeal, we will not address Bandy's second question presented.
For the reasons stated, we affirm the commission's decision.
Affirmed.