                    COURT OF APPEALS OF VIRGINIA


Present: Judges Moon, * Willis and Elder
Argued at Richmond, Virginia


JAMES A. ROBINSON
                                             OPINION BY
v.   Record No. 0861-97-2               JUDGE NORMAN K. MOON
                                          NOVEMBER 25, 1997
TREGO STONE CORPORATION
 and NIAGARA FIRE INSURANCE COMPANY


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
            Brian J. Cuscé for appellant.

            James G. Muncie, Jr. (Midkiff & Hiner, on
            brief), for appellees.



     James A. Robinson suffered a compensable injury in 1989.

The commission awarded him temporary total disability benefits in

1989 but suspended that award in 1991 because of his third-party

recovery.   In 1996, Robinson applied for a new offset calculation

based on Code § 65.2-313.   Code § 65.2-313 was enacted in 1994

and requires offset calculations and proportionate payments of

litigation expenses incurred in obtaining a third-party award

which suspends, in whole or in part, an employer's workers'

compensation obligations.   Robinson noted that absent such

recalculation, he would not be entitled to additional payments of

the employer's pro rata share of his litigation expenses until he
has expended the entire third-party award.   The commission found

that the 1991 order was final and thus rejected his application.

     *
      When the case was argued Judge Moon presided. Judge
Fitzpatrick was elected Chief Judge effective November 19, 1997.
We agree with the commission and affirm.

                     Modification of Final Orders

        If an application for review of a final order of the

commission is not made within twenty days of the date of the

order, the commission has no jurisdiction to review the matter

unless the petitioning party alleges fraud or mistake in the

procurement of the award.     McCarthy Electric Company, Inc. v.

Foster, 17 Va. App. 344, 345, 437 S.E.2d 246, 247 (1993) (citing

Code § 65.2-705(A)).    Because Robinson failed to meet this time

requirement and has not alleged fraud or mistake, the commission

correctly found that it lacked authority to modify the 1991

order.
        Robinson contends that the legislature intended that Code

§ 65.2-313 be applied retroactively.      We need not address that

issue because even if the statute could be applied retroactively,

it could not be used to modify the 1991 order because Robinson

failed to allege fraud or mistake.       See Buenson Division,
Aeronca, Inc. v. McCauley, 221 Va. 430, 434 n.2, 270 S.E.2d 734,

736 n.2 (1980) (noting that a new statute with retroactive

applicability cannot act to revive a "dead claim"); Dan River,

Inc. v. Adkins, 3 Va. App. 320, 326, 349 S.E.2d 667, 670 (1986)

(citing Buenson Division, 221 Va. at 434 n.2, 270 S.E.2d at 736

n.2).

        Robinson suggests that we avoid this rule by considering his

request for a new offset calculation to constitute mere

enforcement, rather than modification, of the 1991 order.        He

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further suggests that Code § 65.2-313 is procedural in nature,

and thus the time limit imposed by the rule does not apply.   No

authority supports either suggested construction of the rule.

                                                       Affirmed.




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