                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Elder, Felton and Senior Judge Willis


KENNETH C. BIRCH
                                             MEMORANDUM OPINION*
v.   Record No. 1419-02-4                         PER CURIAM
                                               OCTOBER 22, 2002
KELLAM DISTRIBUTING COMPANY, INC. AND
 TWIN CITY FIRE INSURANCE COMPANY


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Kenneth C. Birch, pro se, on brief).

             (William C. Walker; Taylor & Walker, P.C., on
             brief), for appellees.


     Kenneth C. Birch (claimant) contends the Workers'

Compensation Commission erred in finding that (1) his July 11,

2001 change-in-condition application was barred by the

applicable statute of limitations; and (2) he failed to prove

that his medical treatment and prescriptions, other than

Dr. Charles D. Stegman's June 25, 1985, June 24, 1988, and

June 29, 1989 treatments, were causally related to his

compensable September 30, 1983 back injury.     Upon reviewing the

record and the parties' briefs, we conclude that this appeal is

without merit.     Accordingly, we summarily affirm the

commission's decision.     Rule 5A:27.



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                       I.   Statute of Limitations

        Code § 65.2-708 requires that an application alleging a

change in condition and seeking temporary disability benefits

must be filed within two years from the last date for which

compensation was paid.      A change-in-condition application

seeking permanent disability benefits must be filed within three

years from the last date for which compensation was paid.

        Claimant last received compensation on September 30, 1984.

He did not file his application until July 11, 2001, over

sixteen years since the last date for which compensation was

paid.    Accordingly, the commission did not err in finding that

claimant's application seeking an award of disability benefits

was untimely.

                II.   Medical and Prescription Expenses

        On appeal, we view the evidence in the light most favorable

to the prevailing party below.      R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

        "Whether the employer is responsible for medical

expenses . . . depends upon: (1) whether the medical service was

causally related to the industrial injury; (2) whether such

other medical attention was necessary; and (3) whether the

treating physician made a referral."      Volvo White Truck Corp. v.

Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903, 906 (1985).         Unless

we can say as a matter of law that claimant's evidence sustained

his burden of proof, the commission's findings are binding and
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conclusive upon us.   See Tomko v. Michael's Plastering Co., 210

Va. 697, 699, 173 S.E.2d 833, 835 (1970).

     In denying claimant's claim for certain medical benefits,

the commission found as follows:

               We find that the claimant has shown
          that Dr. Stegman's treatment on June 25,
          1985, June 24, 1988, and June 29, 1989, were
          the result of the 1983 accident. For the
          later dates, we cannot infer causation
          because too much time has passed. . . .
          Dr. Stegman, as the claimant's attending
          physician, has treated the claimant on
          occasion for many years since the accident.
          He diagnosed the claimant with "chronic"
          back pain and his office invoices indicate
          diagnoses of "back pain" and "sciatica
          pain." The claimant testified that he
          continued to suffer from back pain and he
          claimed medical benefits for this pain
          caused by the accident since at least
          November 7, 1994, when he filed a Claim for
          such benefits.

               As for the prescriptions for pain,
          muscle relaxant, and anti-inflammatory
          medications, we do not believe that the
          claimant has shown a connection between the
          1983 accident and these medications. Absent
          an opinion or at least treatment records
          from Dr. Stegman showing that these
          medications were prescribed for back pain we
          are unable to speculate that they are the
          result of the 1983 accident. We note that
          the claimant also suffers from other health
          conditions that might cause him pain. For
          these reasons, we find the employer was not
          responsible for the June 15 and June 25,
          2001 prescription costs.

     In light of the lack of any medical evidence causally

connecting the claimed medical and prescription costs to

claimant's compensable September 30, 1983 back injury, we cannot

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find as a matter of law that claimant's evidence sustained his

burden of proof.

     For these reasons, we affirm the commission's decision.

                                                        Affirmed.




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