Albert B. Darensbourg v. Huss, Inc. ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
ALBERT B. DARENSBOURG
v. Record No. 1915-95-2 MEMORANDUM OPINION *
PER CURIAM
HUSS, INC. JANUARY 30, 1996
AND
AETNA CASUALTY AND SURETY COMPANY
FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
(James B. Feinman, on briefs), for appellant.
(John M. Oakey; McGuire, Woods, Battle & Boothe, on
brief), for appellees.
Albert B. Darensbourg ("claimant") contends that the
Workers' Compensation Commission erred in finding that his
application for permanent partial disability benefits was barred
by the applicable statute of limitations contained in Code
§ 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.
Claimant sustained a compensable injury by accident to his
knee on May 31, 1991. Pursuant to an August 13, 1991 award,
employer paid claimant temporary total disability benefits from
July 17, 1991 through October 27, 1991. On August 9, 1993,
claimant filed his first "Claim for Benefits," seeking an award
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
of permanent partial disability benefits based upon Dr. W. C.
MacCarty's thirty percent impairment rating rendered on July 14,
1992. The commission used its on-the-record procedure to rule
upon this claim. On December 9, 1993, the deputy commissioner
denied the August 9, 1993 Claim for Benefits on the ground that
employer was entitled to obtain another medical opinion from Dr.
Bernard A. Lublin as it had been over one year since the claimant
had undergone an evaluation. Claimant had failed to appear at an
appointment with Dr. Lublin arranged by employer for a second
opinion. The deputy commissioner stated in her opinion:
For the reasons stated above, the relief
sought by the claimant in his application of
August 9, 1993 is denied.
This matter is hereby removed from the
docket.
You may review this decision
by filing a
request for review
within 20 days from the
date of this opinion.
The review should be
filed with the Clerk of
the Commission and must
conform to the
Commission's rules for
review.
Claimant did not appeal this finding to the full commission.
On January 6, 1994, claimant returned to Dr. Lublin. Dr.
Lublin ordered a program of quadriceps weight training and told
claimant to return in two weeks. On January 21, 1994, Dr. Lublin
again examined claimant. Dr. Lublin instructed claimant to
continue his exercises and opined that, if claimant did not
improve with conservative measures, arthroscopic surgery might be
2
necessary. Dr. Lublin advised claimant to return on February 15,
1994. Claimant did not appear for or reschedule this
appointment. Thereafter, claimant treated with Dr. MacCarty.
On March 23, 1995, claimant filed a second "Claim for
Benefits" form, again seeking an award of permanent partial
disability benefits. Citing Code § 65.2-708, the commission, in
a review on the record, denied this application on the ground
that it was filed more than thirty-six months after compensation
was last paid on October 27, 1991. In doing so, the commission
found that the deputy commissioner's December 9, 1993 ruling on
claimant's August 9, 1993 claim was final.
Claimant contends that the commission erred because the
deputy commissioner's December 9, 1993 opinion ruling on
claimant's August 9, 1993 claim did not "dismiss" the claim but
only removed the claim from the hearing docket. Claimant also
asserts that he filed the second Claim for Benefits form on March
23, 1995 merely to get his claim back on the hearing docket, not
to file a new claim.
The record clearly shows that the commission decided and
denied claimant's August 9, 1993 Claim for Benefits due to
claimant's delay and his refusal to submit to an examination by
employer's doctor. Although the deputy commissioner did not use
the word "dismissed," she denied the claim, removed it from the
docket, and instructed the parties concerning their right to
appeal the decision. Claimant did not appeal this decision.
3
Therefore, it became final. Although claimant saw Dr. Lublin in
January 1994, he waited until March 1995, beyond the thirty-six
months time restriction of Code § 65.2-708, to file another claim
for permanency benefits.
Claimant's reliance on Keenan v. Westinghouse Elevator Co.,
10 Va. App. 232, 391 S.E.2d 342 (1990), is misplaced. In Keenan,
the claimant filed a claim for benefits and then later filed an
application for a hearing, which he subsequently withdrew. The
commission entered an order stating that the hearing would not
take place and ordered the case removed from the hearing docket.
Id. at 233-34, 391 S.E.2d at 343. In this case, unlike Keenan,
claimant did not file a separate application for a hearing.
Moreover, the deputy commissioner did not simply remove the
August 9, 1993 claim from the hearing docket. Rather, the deputy
commissioner decided the claim on the record and entered an award
consistent with that decision. Claimant did not appeal this
ruling. As such, we cannot say as a matter of law that the
commission erred in denying the March 23, 1995 Claim for Benefits
on the ground that it was barred by the thirty-six month statute
of limitations contained in Code § 65.2-708. Accordingly, we
affirm the commission's decision.
Affirmed.
4