Samuel Richardson v Concrete Walls, Inc., et al.

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COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Elder and Fitzpatrick

SAMUEL RICHARDSON

Vv. Record No. 0450-96-4 MEMORANDUM OPINION

PER CURIAM
CONCRETE WALLS, INC. JUNE 18, 1996
AND

ROYAL INSURANCE COMPANY OF AMERICA

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(James D. Alvey; Alvey & Alvey, on briefs),
for appellant.

(Edward H. Grove, III; Brault, Palmer, Grove,

Zimmerman, White & Mims, on brief), for
appellees.
Samuel Richardson ("claimant") appeals a decision of the
Workers' Compensation Commission ("commission") denying his

application for reinstatement of temporary total disability
benefits based upon a change in condition related to a November
4, 1992 right knee injury. Claimant contends that the commission
erred in refusing to consider his application on the ground that
it was not timely filed. Specifically, claimant argues that the
commission erred in (1) finding that he sustained a new injury on
November 4, 1992, rather than a change in condition; (2) applying
the two-year statute of limitations contained in Code § 65.2-601,
rather than the limitations period contained in Code § 65.2-708;

and (3) ignoring the January 1993 Supplemental Memorandum of

"Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

Agreement and January 25, 1993 award. 	Finding no error, we
affirm the commission's decision.
I.
On May 21, 1992, claimant sustained an injury by accident to
his right ankle. 	On July 27, 1992, the commission approved a
Memorandum of Agreement entered into between the parties and, on
July 29, 1992, the commission entered an award. 	The post-May 21,
1992 medical records do not contain any evidence of an injury to
claimant's right knee. 	On September 9, 1992, claimant returned
to his pre-injury work.
Claimant testified that, sometime in November 1992, he
injured his right knee when he twisted his right ankle and right
knee while chasing his dog. 	On November 5, 1992, Dr. David A.
Kavjian, an orthopedic surgeon, examined claimant for increased
right ankle pain and for right knee pain and swelling. 	Claimant
told Dr. Kavjian that he twisted his right ankle and then his
knee while chasing after his dog on November 4, 1992. 	On
November 25, 1992, claimant underwent right knee surgery, which
revealed a partial tear of the anterior cruciate ligament, torn
medial and lateral menisci, and a chondral fracture of the medial
femoral condyle.
On January 25, 1993, pursuant to a fully executed
Supplemental Memorandum of Agreement, the commission entered an
award for temporary total disability benefits beginning November
5, 1992. 	The Supplemental Memorandum of Agreement referred to
the May 21, 1992 right ankle injury.
In July 1993, Dr. George Branche, III, performed additional

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surgery on claimant's right knee. 	On June 1, 1994, Dr. Branche
opined that claimant could return to work. 	Claimant received
temporary total disability from November 5, 1992 through May 31,
1994. 	On March 17, 1995, Dr. Branche opined that claimant must
be on a sedentary work schedule due to continued problems with
his right knee. 	On January 4, 1995, Dr. Jeffrey S. Malka also
opined that claimant should be retrained for sedentary work due
to his knee condition.
On May 26, 1995, claimant filed an application requesting
reinstatement of temporary total disability benefits commencing
February 25, 1995, and vocational rehabilitation, based upon an
alleged change in condition related to his right knee condition.
Claimant relied upon the reports of Drs. Branche and Malka.
The commission held that claimant's May 26, 1995 application
for benefits related to his right knee condition was not timely
filed. 	In so ruling, the commission held that claimant's
November 4, 1992 right knee injury constituted a new injury
rather than a change in condition. 	The commission found that,
"[n]either the content of the medical reports nor the employee's
sworn testimony provide sufficient evidence for a determination
that the employee's right knee injury was either a compensable
consequence of the industrial accident to his right ankle or a
change in condition from the initial injury." 	Therefore, the
commission ruled that the two-year statute of limitations
contained in Code § 65.2-601 governed claimant's application.

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Because claimant did not file an application for benefits related
to his right knee condition within two years from the date of his
accident, i.e., November 4, 1992, the commission held that the
application was time-barred.
II.
Claimant bore the burden of proving that his May 26, 1995
application constituted a timely change in condition application
related to his right knee injury. 	Unless we can say as a matter
of law that claimant's evidence sustained his burden of proof,
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).
Claimant's argument hinges on his contention that the
January 1993 Supplemental Memorandum of Agreement and the January
25, 1993 award provided for benefits related to his November 4,
1992 right knee injury. 	There is no evidence to support this
contention. 	First, the Supplemental Memorandum of Agreement
refers to the May 21, 1992 ankle injury. 	It does not contain any
reference to a November 4, 1992 right knee injury. 	Second, the
post-November 4, 1992 medical records show that claimant
sustained increased right ankle pain, as well as right knee pain.
Third, claimant testified unequivocally that he injured his
right knee while chasing his dog on November 4, 1992. 	He gave no
indication that the May 21, 1992 right ankle injury caused the
right knee injury. 	Based upon these undisputed facts, the

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commission reasonably concluded that the Supplemental Memorandum
of Agreement and subsequent award provided for a resumption of
temporary total disability benefits related only to the
aggravation of claimant's compensable May 21, 1992 ankle injury
on November 4, 1992, and did not provide benefits for any
disability related to his November 4, 1992 right knee injury.
Because claimant never filed an original application for benefits
related to the right knee injury, the commission did not err in
finding that his May 26, 1995 application could not be treated as
a change in condition application. 	Rather, the application
constituted an initial claim for benefits related to claimant's
right knee condition. 	As such, we cannot say as a matter of law
that the commission erred in finding the May 26, 1995 application
time-barred because it was not filed within two years from
November 4, 1992.
In addition, no medical evidence showed that claimant's
right knee injury constituted a change in condition causally
related to his May 21, 1992 right ankle injury or that his right
knee injury was a compensable consequence of the initial injury.
"[W]here the facts establish a new and separate compensable
injury rather than a compensable change in condition, the time
limitations of Code § 65.1-87 [now Code § 65.2-601] are
applicable and the claimant may not use a change in condition
application to invoke the time limitations of Code § 65.1-99 [now
Code § 65.2-708]." 	Bartholow Drywall Co. v. Hill, 12 Va. App.

790, 796-97, 407 S.E.2d 1, 4-5 (1991).
For the reasons stated, we affirm the commission's decision.

Affirmed.