Linwood W. Burt v McLean Contracting Co, et al.

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COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Willis and Bray
Argued at Norfolk, Virginia

LINWOOD W. BURT

Vv. Record No. 2403-94-1 MEMORANDUM OPINION*

BY JUDGE JOSEPH E. BAKER
McLEAN CONTRACTING COMPANY NOVEMBER 14, 1995
and

FIDELITY & GUARANTY COMPANY OF NEW YORK

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Oldric J. Labell, Jr., for appellant.

R. John Barrett (Kelly O. Stokes; Vandeventer, Black,
Meredith & Martin, L.L.P., on brief), for appellees.

Linwood W. Burt (claimant), appeals from a decision of the
Workers' Compensation Commission (commission), denying his claim
for permanent disability benefits on the ground that his claim
was barred, as being untimely, by Code § 65.2-708(A).

Claimant suffered a compensable injury by accident on April
15, 1980. He last received compensation for that injury on
January 30, 1990. On September 7, 1994, claimant filed an
application for benefits with the commission, requesting
permanent disability benefits as a result of the April 15, 1980
accident. An assistant claims examiner denied claimant's

application on the ground that Code § 65.2-708 barred its
consideration. On October 18, 1994, the commission affirmed the

decision of the assistant claims examiner, finding that the

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

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claimant last received compensation benefits on September 8,
1981. 	Claimant moved for a rehearing, and the commission denied
the motion on November 17, 1994. 	Claimant filed a notice of
appeal to this Court on November 30, 1994.1
Code § 65.2-708(A), Review of award on change in condition,
provides that:
A. 	Upon its own motion or upon the
application of any party in interest, on the
ground of a change in condition, the
Commission may review any award and on such
review may make an award ending, diminishing
or increasing the compensation previously
awarded, subject to the maximum or minimum
provided in this title, and shall immediately
send to the parties a copy of the award.
. . . No such review shall be made after
twenty-four months from the last day for
which compensation was paid, pursuant to an
award under this title, except: (i)
thirty-six months from the last day for which
compensation was paid shall be allowed for
the filing of claims payable under § 65.2-503
[Compensation for permanent loss] . . . .
(Emphasis added.)
The record in this case clearly indicates that claimant's
September 7, 1994 application was untimely. 	Claimant last
received compensation for his injury on January 30, 1990 and did
not file his application for benefits based upon a change in
1 It should be noted that this opinion does not address whether
claimant timely filed his appeal from a "final decision of the
Virginia Workers' Compensation Commission," in accordance with
Code § 17.116-05 and Rule 5A:11.

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condition until September 7, 1994. 	Thus, a time period of more
than fifty-five months, more than nineteen months beyond the
thirty-six-month statute of limitations set forth in Code
§ 65.2-708, elapsed before claimant filed his application.
The fact that the commission in its October 18, 1994 opinion
erroneously specified the last date which claimant received
benefits as September 8, 1981 is immaterial. 	As the Supreme
Court of Virginia stated in Robbins v. Grimes, 211 Va. 97, 175
S.E.2d 246 (1970), "[w]e do not hesitate, in a proper case, where
the correct conclusion has been reached but the wrong reason
given, to sustain the result and assign the right ground." 	Id.
at 100, 175 S.E.2d at 248.
Claimant argues that the statute of limitations specified in
Code § 65.2-708 should be tolled on his behalf. 	We find nothing
in the record to support claimant's contention. 	See Lucas v.
Research Analysis Corp., 215 Va. 336, 337, 210 S.E.2d 143, 143
(1974) (Supreme Court refusing to toll the provision set forth in
statute predating Code § 65.2-708 relating to the timeliness of
an application based upon a change in the claimant's condition).
Claimant also argues that the doctrine of imposition should
be applied in this case; however, he fails to cite any authority
which supports this position, and we can find none.
Under the facts of this case, we find no reason to grant the
employer's request for sanctions.
For the foregoing reasons, we affirm the decision of the

commission.
Affirmed.
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