                   COURT OF APPEALS OF VIRGINIA


Present:   Judges Koontz, Bray and Senior Judge Hodges


GEORGE ANDREW MOORE

v.   Record No. 2149-94-2                     MEMORANDUM OPINION *
                                                  PER CURIAM
GEORGE MOORE DRYWALL COMPANY                      MAY 9, 1995
AND
AETNA CASUALTY & SURETY COMPANY


                                    FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
            (W. Edward Riley, IV; J. Burkhardt Beale; Boone,
            Beale, Carpenter & Cosby, on brief), for appellant.

            (John M. Oakey, Jr.; Jill M. Misage; McGuire, Woods,
            Battle & Boothe, on brief), for appellees.



     George Andrew Moore contends that the Workers' Compensation

Commission erred in (1) finding that Moore's evidence failed to

prove that he filed a claim seeking an award of permanent total

disability benefits within three years from the last date for

which compensation was paid pursuant to an award; (2) finding

that Moore's evidence failed to prove that he was permanently and

totally incapacitated prior to the expiration of the three-year

period; and (3) excluding Dr. George Gruner's August 1, 1994

medical report.   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.

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
      On appeal, we view the evidence in the light most favorable

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

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

order to receive benefits pursuant to Code § 65.2-503(C), Moore

was required to show evidence of permanent and total incapacity

causally related to his compensable November 17, 1989 injury by

accident occurring within three years from February 18, 1990.

Unless we can say as a matter of law that Moore's evidence

sustained his burden of proof, the commission's findings are

binding and conclusive upon us.       Tomko v. Michael's Plastering

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

     In holding that Moore failed to establish any degree of

permanent impairment prior to February 18, 1993, the commission

found as follows:
          The first mention in the medical evidence
          that [Moore] may have permanent impairment is
          found in a May 4, 1993 letter, in which Dr.
          Gruner states: "At this point I am not
          optimistic that he can ever get back to doing
          any type of work above sedentary to light
          activity." On October 25, 1993, Dr. Gruner
          reported [Moore] had "significant
          restrictions in motion, especially to the
          left side of the neck, and this is something
          he will have on a lifelong basis." On
          February 3, 1994, Dr. Gruner opined [Moore]
          is "[f]or practical purposes" totally
          disabled. On April 12, 1994, Dr. Gruner
          observed that [Moore] "continues to hold his
          right hand in a most unusual configuration
          with his hand being curled." He reiterated
          that [Moore] is "totally disabled from doing
          any type of useful work."


     Based upon these factual findings, which are fully supported



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by the record, the commission found that Moore failed to show he

was entitled to benefits under Code § 65.2-503.   Because the

medical evidence failed to show that Moore was permanently and

totally incapacitated prior to February 18, 1993, we cannot say

as a matter of law that the commission erred in denying Moore's

application.

     We find no merit in Moore's contention that the commission

erred in not considering Dr. Gruner's August 1, 1994 medical

report.   This report was generated and filed with the commission

nearly three months after the deputy commissioner's hearing.    It

did not qualify as after-discovered evidence, nor did Moore make

a motion before the commission for it to reopen the case for

additional evidence.   Therefore, the commission did not err in

excluding the report from its consideration.
     Because our rulings on Moore's second and third questions

presented dispose of this appeal, we will not address Moore's

first question presented.

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

                                 Affirmed.




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