Davis H. Elliot Co., Inc v. Everette L. Price ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
Argued at Alexandria, Virginia
DAVIS H. ELLIOT CO., INC. and
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH
MEMORANDUM OPINION * BY
v. Record No. 2240-95-4 JUDGE JAMES W. BENTON, JR.
APRIL 2, 1996
EVERETTE L. PRICE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Robert M. McAdam (Wooten & Hart, P.C.,
on brief), for appellants.
No brief or argument for appellee.
On this appeal, the employer, Davis H. Elliot Co., Inc.,
contends that no credible evidence supports the commission's
findings (1) that Everette L. Price filed a claim for permanent
partial benefits on February 2, 1993, and (2) that Price's claim
was still pending. We conclude that the findings are supported
by credible evidence, and we affirm the decision.
The principle is well established that "[t]he commission's
findings of fact are conclusive and binding on us when there is
credible evidence in support of such findings." Island Creek
Coal Co. v. Breeding, 6 Va. App. 1, 12, 365 S.E.2d 782, 788
(1988). Equally well established is our obligation on appeal to
"review the evidence in the light most favorable to the
prevailing party [in the commission]." R.G. Moore Building Corp.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Viewed in the light most favorable to Price, the evidence
proved that on November 2, 1988, Price was shocked by a 13,800
volt electrical charge while working for the employer. The
employer and Price signed a memorandum of agreement for payment
of compensation for burn injuries to Price's left hand and right
leg. Consistent with their agreement, the commission entered an
award of compensation for temporary total disability from
November 10, 1988. Effective February 6, 1991, the employer
suspended Price's benefits because Price refused selective
employment and failed to cooperate with vocational rehabilitation
services. The commission upheld the suspension.
This appeal arises from a hearing and decision that occurred
after the commission received a claim from Price on February 19,
1993. At the hearing, the employer defended, as pertinent to
this appeal, on the grounds that Price's claim was barred by the
two year statute of limitations of Code § 65.2-708. At the
evidentiary hearing, Price testified, however, that he mailed his
claim for benefits and a handwritten letter to the commission on
February 2, 1993. Price also entered in evidence a certified
mail receipt to show that a document was mailed to the commission
on February 2, 1993. He testified that the claim form and letter
the commission received on February 19, 1993, were sent by
certified mail on February 2, 1993.
Peggy Sink testified that she went with Price to the post
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office on February 2 to mail some documents. Another witness,
Anita Lawrence, testified that Price came to her office and
obtained a claim form for disability benefits. Although she
recalled that Price obtained the form on February 2, her
telephone log indicates he was in her office on February 1. She
also testified that Price later told her he had mailed the form
and the letter by certified mail on February 2.
In the letter the commission received from Price on February
19, Price indicated that he was unable to contact his attorney.
He also stated that he had a permanent injury and was totally
disabled. On the claim form that accompanied the letter, Price
noted that his claim was for injury by accident, referred to the
prior award, and indicated that he was seeking compensation for
wage loss and medical benefits. In a letter filed with the
commission on July 21, 1994, Price's attorney specifically raised
the issue of Price's permanent injuries.
Based upon these facts and other evidence in the record, the
deputy commissioner found that Price's handwritten letter had
sufficiently stated a claim for permanent partial disability
benefits and that Price's claim was filed on February 2, 1993.
The deputy commissioner also found that Price was not entitled to
temporary total disability benefits because the medical evidence
did not conclusively show he was totally disabled. The deputy
commissioner further found that Price was partially disabled and
that, even if Price had made a good faith effort to obtain light
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work, he had not offered to cooperate with vocational
rehabilitation services. The deputy commissioner then denied
Price's application for permanent partial benefits because the
evidence did not prove that Price had reached maximum medical
improvement. The deputy commissioner further ruled that the
claim for permanent partial benefits would remain pending. The
commission affirmed the deputy commissioner's findings.
The facts recited above were proved in evidence and accepted
by the commission. The documentary evidence proved that the
letter and claim form were received by the commission and that
the receipt for certified mail dated February 2, 1993, contained
the same document number that was handwritten on the letter and
claim form. In addition, Price and two witnesses gave testimony
from which both the deputy commissioner and the commission
concluded that the documents were mailed February 2, 1993. We
conclude that credible evidence supports the commission's
findings that Price's claim was filed when mailed on February 2,
prior to the expiration of the February 6, filing deadline.
The commission's finding that Price's documents were
sufficient to establish a claim for permanent partial disability
benefits also finds support in credible evidence. Price's letter
stated that he sought "to protect my rights of a perman[ent]
injury." The commission could reasonably find that Price sought
to claim benefits for the injuries noted in both the letter and
the claim form.
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The commission also found as follows:
Although a view of [Price] revealed extensive
scarring on his legs, which the Deputy
Commissioner found to be related to the
accident, the medical reports do not
establish that he has reached maximum medical
improvement. The Court of Appeals has held
that where uncontradicted evidence proves a
present and existing disability, a claim for
permanency is timely if filed under the
thirty-six month period. Therefore the
claim, although not ripe, is still pending.
Johnson v. Ivy H. Smith, 16 Va. App. 167,
169, 428 S.E.2d 508 (1993).
These findings, as are the others, are supported by credible
evidence and are binding on appeal. Breeding, 6 Va. App. at 12,
365 S.E.2d at 788. Accordingly, we affirm the decision.
Affirmed.
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