                   COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Clements and Agee
Argued at Argued at Salem, Virginia


DENNY R. MAGGARD
                                          MEMORANDUM OPINION* BY
v.   Record No. 3001-00-3                  JUDGE G. STEVEN AGEE
                                               JULY 3, 2001
WESTMORELAND COAL COMPANY


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          P. Heith Reynolds (Wolfe, Farmer, Williams &
          Rutherford, on brief), for appellant.

          Lisa Frisina Clement (Michael F. Blair;
          (PennStuart, on brief), for appellee.


     On this appeal, Denny R. Maggard (the claimant) appeals the

decision of the Virginia Workers' Compensation Commission (the

commission) that his claim for benefits, based on a change in

condition, is barred by the statute of limitations in Code

§ 65.2-708.   The claimant contends that the commission erred in

finding that his claim, received by the commission after the

twenty-four month statute of limitations had run, was not shown

to have been mailed via certified mail on October 13, 1998, the

last day within the requisite time period.   We conclude that the

commission's finding is supported by credible evidence, and we

affirm the decision.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                              BACKGROUND

     The claimant sustained a back injury on November 15, 1991

while working for Westmoreland Coal Company (the employer).      The

claimant filed a claim under the Workers' Compensation Act that

was accepted by the employer, and based upon a Memorandum of

Agreement, the commission entered an award on December 31, 1991.

     From 1992 through October 12, 1996, the parties executed

supplemental agreements and findings of fact as the claimant's

condition permitted or prevented him from working.    When the

claimant was able to work his benefits were suspended, and when

the claimant was unable to work total disability benefits were

reinstated.   Compensation benefits were last paid to the

claimant on October 11, 1996, permitting the claimant to make

any additional claims up until October 11, 1998.    October 11,

1998, however, fell on a weekend, and the tolling date was

statutorily extended to October 13, 1998 by Code § 1-13.3:1.

     On October 16, 1998, the commission received, via the

United States Postal Service (USPS), the claimant's claim for

benefits due to a change in condition.     The requisite papers for

the claim were in an envelope postmarked October 13, 1998, with

a certified mail sticker.   The postmark on the envelope was

created by a postage meter at the office of claimant's counsel,

not the USPS.

     The employer argued the statute of limitations barred

consideration of the claim.    The claimant contended, however,

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that his claim was in fact filed on the last permissible day and

thus was not time barred.   Since the commission received the

claim after the statute of limitations had run, the claimant was

required to prove the claim was in fact sent via certified mail

on October 13, 1998.

     In an attempt to meet this burden placed upon him, the

claimant submitted the affidavit of C. Scott Stine (Stine),

employed as the temporary postmaster at the United States Post

Office in Norton, Virginia.   In the affidavit, Stine stated:

          To the best of my knowledge as Officer In
          Charge at the Norton Post Office based on
          the 3811 [the green card denoting certified
          mail] and the postmarked envelope the piece
          of mail was posted on 10/13/98 . . . through
          certified mail at the United States Post
          Office at Norton, VA 24273.

     However, at a subsequent deposition, Stine testified that

the green card would not reflect the date that the piece of mail

was actually deposited at the post office.

     Stine's testimony was limited to a general description of

normal post office operating procedure because he was not yet

employed at the Norton post office on October 13, 1998.   He

further testified that USPS personnel normally check the private

meter dates to validate the meter date as the date of actual

receipt by the USPS.   If the date is incorrect, the mail is

re-postmarked to reflect the date it was actually received by

the post office.   Otherwise, a second postmark is not applied.



                               - 3 -
        Stine also testified that the post office is not one

hundred percent accurate due to human error.    The only way to

know for certain the exact date the post office received the

specific piece of mail was to examine the white certification

receipt for certified mail.    The claimant did not submit the

white certification receipt into evidence, explain its absence

or provide testimony as to when the envelope containing the

claim was actually delivered to the post office.

        Without the white receipt or other positive verification

that the claim was actually posted at a post office on October

13, 1998, the commission found that it could not find as a fact

that the claim was posted as certified mail on October 13, 1998.

It therefore ruled that the filing occurred when the commission

received it on October 16, 1998, more than twenty-four months

after the claimant last received benefits.

                               ANALYSIS

        The claim filed by the claimant, and received by the

commission on October 16, 1998, was based on a change in his

condition under Code § 65.2-708, which provides in pertinent

part:

             A. Upon . . . the application of any party
             in interest, on the ground of a change in
             condition, the Commission may review any
             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 . . . .



                                 - 4 -
Pursuant to Code § 65.2-101, a claim is considered filed when it

is

           hand delivered to the Commission's office in
           Richmond or any regional office maintained
           by the Commission; sent by telegraph,
           electronic mail or facsimile transmission;
           or posted at any post office of the United
           States Postal Service by certified or
           registered mail. Filing by first-class
           mail, telegraph, electronic mail or
           facsimile transmission shall be deemed
           completed only when the application actually
           reaches a Commission office.

It is the claimant's contention that he complied with these

statutory provisions by posting his claim at the post office in

Norton, by certified mail, on October 13, 1998.   He asks this

Court to hold that the commission erred in finding that the

filing date was October 16, 1998.

     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 [before the commission]."   R.G. Moore Building

Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788

(1990).   Unless we can say as a matter of law that the

claimant's evidence proved that he filed a timely claim with the

commission, the commission's findings are binding and conclusive



                               - 5 -
upon us.   See Tomko v. Michael's Plastering Co., 210 Va. 697,

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

     Upon a review of the evidence, we cannot say as a matter of

law that the claim was filed on October 13, 1998.   The

commission's finding that the evidence did not confirm the

claimant's contention that his claim was mailed from the Norton

post office on October 13, 1998 via certified mail is credibly

supported by the record.   The claimant did not present the white

certified mail receipt that would prove the date on which the

post office received the mailing; and he did not present

testimony by anyone as to when, in fact, the mailing was

delivered to the post office.

     The claimant's evidence is a private postmark dated October

13, 1998, which was not re-postmarked by the post office, and

the testimony of Stine, who did not work on October 13, 1998,

and had not yet started his duties at the Norton post office.

Stine's testimony was limited to the normal and general

operating procedures of the postal service in regards to

handling certified mail.   This evidence is further limited by

Stine's testimony that human error does affect normal operating

procedure and the only way to absolutely know when the post

office received a mailing to be posted as certified mail is to

check the white receipt stamped by the post office when the mail

is delivered to the post office.



                                - 6 -
     We cannot say the commission is plainly wrong.   To hold

that the commission erred we would have to assume, without

evidence, that the claimant or his agent presented the claim as

certified mail to the post office on October 13, 1998 and that

the post office ran according to normal operating procedure on

October 13, 1998, as to all pieces of mail received that day.

Without evidence in the record on these points, we cannot say

the commission erred in finding the claimant failed to establish

that the claim was filed within the statute of limitations.

     Accordingly, the decision of the commission is affirmed.

                                                        Affirmed.




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