                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Elder, Bray and Senior Judge Overton


DIRK NEAL CAMPBELL
                                             MEMORANDUM OPINION*
v.   Record No. 1529-00-3                         PER CURIAM
                                               OCTOBER 31, 2000
LYNTOOL, INC. AND
 MERCHANTS OF VIRGINIA GROUP
 SELF-INSURANCE ASSOCIATION


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Philip B. Baker; Sanzone & Baker, P.C., on
             brief), for appellant.

             (Kathryn Spruill Lingle; Brenner, Evans &
             Yoffy, P.C., on brief), for appellees.


     Dirk Neal Campbell (claimant) contends that the Workers'

Compensation Commission erred in finding that his claims for an

award of medical benefits related to his left leg injury and for

an award of permanent partial disability benefits for impairment

to his left leg were barred by the applicable statute of

limitations.     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.        See

Rule 5A:27.

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

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

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

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 conclusive upon us.   See Tomko v. Michael's

Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).

     The evidence proved that on September 8, 1995, claimant

sustained a compensable injury by accident while working for

Lyntool, Inc. (employer).   Employer's First Report reflected an

injury to claimant's right leg.   Pursuant to a Memorandum of

Agreement executed by the parties on June 11, 1996, the

commission entered an award for compensation and medical

benefits related solely to an injury to claimant's right leg.

On July 26, 1997, the commission entered an award for

compensation benefits for an additional period of disability.

     On May 23, 1997, claimant filed a letter application with

the commission alleging a change-in-condition with regard to his

September 8, 1995 accident.   This application did not refer to a

left leg injury or make any claim for a left leg injury.

Claimant sought additional temporary partial disability

benefits.

     On March 2, 1998, claimant filed a "Request for Hearing"

seeking payment for medical treatment related to a left leg

injury that he claimed occurred on September 8, 1995, the

original accident date.   On June 24, 1998, the commission held a

hearing with respect to the May 23, 1997 change-in-condition

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application and the March 2, 1998 claim for payment of medical

expenses related to the left leg.

     By letter dated August 4, 1998, claimant's counsel

requested that the commission enter an order allowing him to

non-suit the March 2, 1998 claim with respect to injury and

treatment of the left extremity arising from the accident of

September 9, 1995.   He wrote that claimant did not "wish to

proceed with the issue of temporary partial disability and our

claim thereunder."   On September 30, 1998, the deputy

commissioner rendered an opinion dismissing the March 2, 1998

claim without prejudice per claimant's request.   The deputy

commissioner specifically noted that "[w]e expressly make no

finding as to whether this claim may be time-barred."    Neither

party appealed the dismissal of the March 2, 1998 claim with

respect to injury to the left leg.

     On September 8, 1998, claimant filed a claim requesting an

award of lifetime medical benefits as to his lower left

extremity and permanent partial disability benefits for

impairment of his lower left extremity related to his original

accident of September 8, 1995.    On July 1, 1999, claimant's

counsel requested that his September 8, 1998 claim be docketed

for a hearing with respect to a determination that the lower

left extremity is causally related to the September 8, 1995

accident and for an award of permanent partial disability

benefits for the left and right lower extremities.

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     In ruling that claimant failed to file a timely claim for

medical benefits related to his left leg injury or for permanent

partial disability benefits related to left leg impairment, the

commission found as follows:

          The Agreements, the Employer's First Report
          of Accident, and other records filed with
          the Commission fail to indicate any claim
          for an accident with an injury to the left
          leg until March 2, 1998. The May 23, 1997,
          claim for a change in condition cannot be
          construed as being for a left leg. This
          claim does not specifically identify that
          benefits were sought for a left extremity
          injury. In addition there had never been a
          claim for an injury to the left leg thus
          there could be no change in condition claim
          for this injury. The only claim for which
          an agreement was reached and an Award
          entered was for the right leg. That counsel
          was aware that the May claim was not for the
          left extremity is evidenced by the later
          filing of a claim for the left leg on March
          2, 1998. After a hearing in which evidence
          was taken on both claims, claimant's counsel
          . . . requested that the March 2, 1998,
          claim be non-suited. This was done by
          Opinion of September 30, 1998. This opinion
          also adjudicated all issues raised by the
          May 23, 1997 claim. No appeal was taken
          from this decision. Counsel did not refile
          any claim until September 8, 1998.

               . . . [I]n order to assert a claim for
          a left extremity injury, a claim must have
          been filed with the Commission on or before
          September 8, 1997. The first claim filed
          asserting a left knee injury was on March 2,
          1998. This claim was withdrawn and
          dismissed. We also note that it was not a
          timely claim in that it was filed more than
          two years after the date of accident. For
          the same reason, the September 8, 1998, and




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            July 1, 1999, claims for the left extremity
            were not timely filed.

(Footnote omitted.)

       The commission's findings are amply supported by the

record.    No evidence in the record established that claimant

filed a claim for medical benefits related to treatment of his

left leg within the applicable statute of limitations provided

in Code § 65.2-601.   The fact that there may have been

references to a left leg injury in claimant's medical records or

that employer may have paid medical expenses at some point in

time related to treatment of claimant's left leg did not negate

claimant's statutory obligation to file a timely claim with

regard to his left leg to invoke the commission's jurisdiction.

Claimant was aware, as early as April 17, 1997, that employer

specifically denied responsibility for treatment of his left

leg.   Claimant's counsel confirmed this in his July 15, 1997

correspondence to the carrier.    Yet, claimant failed to file a

claim for treatment related to his left leg until March 2, 1998,

more than six months after the two-year statute of limitations

expired.   Furthermore, appellant non-suited the March 2, 1998

claim and did not refile it until September 8, 1998, again well

outside the applicable two-year limitations period.

       We also find no merit in claimant's argument that Code

§ 65.2-708(A) somehow saved his claim from the bar of the




                                 - 5 -
statute of limitations.   Code § 65.2-708(A) provides in

pertinent part as follows:

          No such review [of any award] shall be made
          after twenty-four months from the last day
          for which compensation was paid, pursuant to
          an award . . . 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 . . . .

Thus, a review pursuant to Code § 65.2-708(A) requires the

existence of a prior award.   See Lynchburg Foundry Co. v.

McDaniel, 22 Va. App. 307, 311, 469 S.E.2d 85, 87 (1996).

     Appellant did not file a claim for an injury to his left

leg within two years of the accident date.   No prior award

existed with respect to his left leg injury.   "Thus, . . . Code

§ 65.2-708(A) did not save [his] . . . claim [for medical

expenses] from the jurisdictional bar of Code § 65.2-601."      Id.

     Code § 65.2-708(B) provides that "'[i]n those cases where

no compensation has been paid, the Commission may make an award

under § 65.2-503 within 36 months from the date of the

accident.'"   Id. (citation omitted).   Although Code

§ 65.2-708(B) does not require a prior award, it requires that a

claimant file a claim for the specific injury alleged within two

years of the accident as required by Code § 65.2-601.      See id.

at 311-12, 469 S.E.2d at 88 (where original claim for injury was

filed within two years of accident, claim for permanent partial

disability benefits was filed within thirty-six months of

accident, and no compensation had been paid, permanent partial

                               - 6 -
disability benefits were awardable under Code § 65.2-708(B)).

Because claimant failed to file a timely claim for a left leg

injury under Code § 65.2-601, Code § 65.2-708(B) did not act to

save his September 8, 1998 claim for permanent partial

disability benefits related to his left leg.

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

                                                         Affirmed.




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