Linwood W. Burt v. McLean Contracting Co ( 1995 )


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  •                     COURT OF APPEALS OF VIRGINIA
    Present: Judges Baker, Willis and Bray
    Argued at Norfolk, Virginia
    LINWOOD W. BURT
    v.          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.
    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.
    - 2 -
    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
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    commission.
    Affirmed.
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Document Info

Docket Number: 2403941

Filed Date: 11/14/1995

Precedential Status: Non-Precedential

Modified Date: 4/18/2021