Harris v. Amelia Dress Co. 0025-94-3

Full title: LINDA H. HARRIS v. AMELIA DRESS COMPANY, INC. AND SAFECO INSURANCE COMPANY…

Court: Court of Appeals of Virginia

Date published: Jul 12, 1994

Record No. 0025-94-3 (Va. Ct. App. Jul. 12, 1994)

Opinion

Record No. 0025-94-3

Decided: July 12, 1994

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Affirmed

(Donald G. Pendleton; Pendleton, Martin, Henderson Garrett, on brief), for appellant.

(J. Christopher Clemens; Gentry, Locke, Rakes Moore, on brief), for appellees.

Present: Judges Baker, Elder and Fitzpatrick

MEMORANDUM OPINION^_

_ Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.

PER CURIAM:

Linda H. Harris contends that the Workers' Compensation Commission erred in finding that her application alleging a change in condition was barred by the applicable statute of limitations contained in Code Sec. 65.2-708. 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.

Harris sustained a compensable injury by accident on January 26, 1990. Amelia Dress Company (employer) paid Harris compensation benefits from January 26, 1990 through May 4, 1990, pursuant to an award. An agreed statement of fact shows that Harris returned to her regular employment on May 7, 1990. An underpayment of compensation in the amount of $29.84 for the period January 26, 1990 through May 4, 1990, which was owed to Harris by employer, was paid to her on January 30, 1991. On September 16, 1992, Harris filed an application alleging a change in condition and requesting an award of temporary total disability benefits from April 1992 and continuing.

The commission found that Harris's application was barred by the statute of limitations contained in Code Sec. 65.2-708 because it was filed more than two years from May 4, 1990, the date for which compensation was last paid.

Harris argues that the correct limitation period to be applied to her application is two years from January 30, 1991, the last date upon which she actually received a payment from employer.

Code Sec. 65.2-708(A) clearly and unequivocally provides that an award shall not be reviewed "after twenty-four months from the last day for which compensation was paid." (Emphasis added.)

In this case, the two-year time period expired on May 4, 1992. Claimant's application was not timely filed. Accordingly, we cannot say that the commission erred in dismissing her application.

For the reasons stated, we affirm the commission's decision.

Affirmed