Albert B. Darensbourg v. Huss, Inc.

• Court: Court of Appeals of Virginia
• Decided: January 30, 1996
• Docket: 1915952
• Status: Unpublished

Opinion

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.