Opinion
Record No. 0935-94-4
Decided: February 7, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Kathleen G. Walsh (Ashcraft Gerel, on brief), for appellant.
Kathryn Spruill Lingle (Midkiff Hiner, on brief), for appellees.
Present: Judges Willis, Bray and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Harold D. Rasnick (claimant) appeals from a decision of the Workers' Compensation Commission denying his application for permanent partial disability benefits. He argues that the commission erred in finding that his change of condition application was time barred by Code Sec. 65.2-708(A) because he failed to meet the tolling requirements of Code Sec. 65.2-708(C). Finding no error, we affirm the commission.
Code § 65.2-708(A) provides, in pertinent part, that:
No such review [of a change in condition application] shall be made after . . . (i) thirty-six months from the last day for which compensation was paid . . . for the filing of claims payable under § 65.2-503 . . . .
Code § 65.2-708(C) provides that:
All wages paid, for a period not exceeding twenty-four consecutive months, to an employee (i) who is physically unable to return to his pre-injury work due to a compensable injury and (ii) who is provided work within his capacity at a wage equal to or greater than his pre-injury wage, shall be considered compensation.
Claimant sustained a compensable injury to his left wrist on June 18, 1987 while working for American Stone, Inc. (employer). He received an initial award of temporary disability benefits on August 6, 1987. The last day claimant received benefits was January 15, 1989, and claimant returned to work for employer on January 16, 1989. Claimant received a permanent impairment rating to his left hand in April 1992, and on March 9, 1993, filed a change in condition application seeking permanent partial disability benefits for his left wrist. This was outside the three-year time limit of Code Sec. 65.2-708(A).
Code Sec. 65.2-708(C) extends the time limit under Code Sec. 65.2-708(A) for an employee "(i) who is physically unable to return to his pre-injury work due to a compensable injury and (ii) who is provided work within his capacity at a wage equal to or greater than his pre-injury wage." "Decisions of the commission as to questions of fact, if supported by credible evidence, are conclusive and binding on this Court. The fact that contrary evidence may be found in the record is of no consequence if credible evidence supports the commission's finding." Manassas Ice and Fuel Co. v. Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991) (citations omitted).
The commission found that claimant was physically able to return to his pre-injury work in January 1989 and thus failed to meet the tolling requirements of Code Sec. 65.2-708(C). Credible evidence supports this finding. The evidence established that claimant's promotion to shop supervisor was based solely on his experience and qualifications. Employer was not advised that claimant was medically released with any work restrictions, and claimant's doctor gave claimant an unconditional release to return to work in January 1989. Additionally, claimant failed to obtain a permanent disability rating for his left wrist within the three-year time limit even though claimant was aware that he had some restriction in the use of his left hand.
Accordingly, the decision of the commission is affirmed.
Affirmed.