                    COURT OF APPEALS OF VIRGINIA


Present: Judges Clements, Agee∗ and Felton
Argued at Richmond, Virginia


WILLIAM R. MARVIN
                                         MEMORANDUM OPINION∗∗ BY
v.   Record No. 2166-02-2             JUDGE JEAN HARRISON CLEMENTS
                                            SEPTEMBER 9, 2003
ROUNTREE CONSTRUCTION COMPANY, INC. AND
 COMMONWEALTH CONTRACTORS GROUP
 SELF-INSURED ASSOCIATION


          FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

            Gregory O. Harbison (Elizabeth C. Griffin;
            Geoffrey R. McDonald & Associates, on brief),
            for appellant.

            Mark S. Davis (Carr & Porter LLC, on brief),
            for appellees.


     William R. Marvin (claimant) appeals a decision of the

Workers' Compensation Commission (commission) denying his July

27, 1999 change-in-condition application seeking permanent

partial disability compensation benefits.    The commission ruled

that the claim was time-barred by Code § 65.2-708(A).       Finding

no error, we affirm the commission's decision.




     ∗
       Justice Agee participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
     ∗∗
       Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
        As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts and incidents of

the proceedings as are necessary to the parties' understanding

of the disposition of this appeal.

                            I.   BACKGROUND

        The relevant facts in this case are not in dispute.    On

October 10, 1997, claimant sustained a compensable injury by

accident when his left arm was crushed between the bucket of a

backhoe and a trench box.    As a result of that accident,

claimant suffered "considerable soft tissue damage" to his left

arm, requiring extensive vascular surgery, and a severe left arm

fracture, requiring orthopedic surgery.       Two additional

surgeries were performed prior to claimant's discharge from the

hospital.    His claim was accepted, and an award was entered for

temporary total disability compensation benefits on February 5,

1998.

        On February 16, 1998, Dr. John J. Harrington, D.O., who was

treating claimant for pain, observed that the range of motion of

claimant's left arm was "approximately 60% of normal" at the

elbow and "75%" at the wrist.     Dr. Harrington further observed

that claimant had difficulty moving some of the fingers on his

left hand probably due to nerve injury.       Claimant was receiving

physical therapy three times per week.


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     On March 10, 1998, Dr. H. Steven Cline, one of claimant's

treating orthopedic physicians, evaluated claimant, noting

claimant had "increased range of motion of his left upper

extremity and no significant pain."   Dr. Cline also reported

that claimant was "working on range of motion, doing extremely

well."   He recommended continued "aggressive physical therapy."

On that same date, Dr. Harry J. Molligan, another of claimant's

treating orthopedic physicians, released claimant, effective

March 11, 1998, to sedentary work, with no "use of [his] left

upper extremity."

     The medical records filed in this case do not reflect any

treatment of claimant's condition between March 10, 1998, and

October 3, 2001.

     On April 23, 1998, employer filed a change-of-condition

application with the commission, alleging claimant had recently

been convicted of felony offenses and had "removed himself from

[the] job market" due to his incarceration.   On July 17, 1998,

the commission found that claimant was incarcerated while able

to perform light duty work and suspended his benefits pursuant

to Code § 65.2-510.1 as of April 24, 1998, the last day for

which compensation had been paid.

     On July 27, 1999, claimant, proceeding pro se, filed a

change-in-condition application alleging "permanent nerve

damage/mobility" of his left arm and seeking, inter alia,

permanent partial disability compensation benefits.   By letter
                              - 3 -
dated August 6, 1999, the commission acknowledged receipt of

claimant's July 27, 1999 application and informed him, inter

alia, that his request of permanent disability benefits was

being "placed on hold" pending his submission of "medical

documentation reflecting that [his] injuries have reached

maximum medical improvement together with the disability

rating."   The commission further informed claimant that "[n]o

further action [could] be taken . . . pending receipt of the

above requested documentation."

     On November 14, 2001, claimant, by counsel, filed a

change-in-condition application for permanent partial disability

compensation benefits.   Attached to the application was a note

from Dr. Molligan dated October 3, 2001, concluding that

claimant's injury had resulted in a "permanent functional

impairment of his left" arm and that claimant had "reached the

point of maximum medical improvement."   Dr. Molligan further

noted that, while claimant's wounds and fracture were "well

healed" and his left hand was neurologically intact, he lacked

pronation and supination in his left forearm, "probably due to a

synostosis or a connection of bone across the forearm at about

the elbow region."   Dr. Molligan also stated in his note that he

discussed with claimant "the possibility of further surgery to

alleviate this" condition, but, acknowledging he was

"functioning fairly well" and fearing "a worse prognosis" after


                               - 4 -
surgery, claimant decided he did not want further surgery on his

arm.

       Also attached to claimant's November 14, 2001 application

was an October 21, 2001 report from Dr. Eric Mein, assigning a

rating of "34% upper extremity impairment" to claimant's left

arm.   Dr. Mein based his rating on decreased flexion, extension,

pronation, and supination at the elbow, as well as a decreased

range of motion of the wrist and fingers.

       By letter dated December 21, 2001, the deputy commissioner

acknowledged "receipt of . . . claimant's applications filed

July 27, 1999, and November 14, 2001," and informed the parties

that the case had been "selected . . . for a determination on

the record."   The deputy commissioner further informed the

parties that they were to provide written notice to him within

ten days if they "believe[d] a trial-type evidentiary hearing

[was] necessary."   Neither party requested an evidentiary

hearing.

       On March 7, 2002, the deputy commissioner issued an opinion

finding that claimant's claim for permanent partial disability

benefits was barred by the three-year statute of limitations of

Code § 65.2-708(A) because "claimant offered no testimony" and

the "medical evidence fail[ed] to demonstrate any permanent

impairment" within three years of the date for which

compensation was last paid.


                                - 5 -
     On July 26, 2002, the full commission issued an opinion

affirming the deputy commissioner's ruling.   The majority of the

full commission concluded (1) that claimant's November 14, 2001

application was time-barred under Code § 65.2-708(A) because it

was not filed within three years of the date claimant was last

paid compensation on April 24, 1998,1 and (2) that, although

claimant timely filed his application of July 27, 1999, that

claim was likewise time-barred under Code § 65.2-708(A) because

claimant failed to present any evidence of a permanent

disability occurring within the requisite three-year time

period.

                          II.    ANALYSIS

     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).     "If

supported by credible evidence, the factual findings of the

commission are binding on appeal."   Tomes v. James City (County

of) Fire, 39 Va. App. 429, 430, 573 S.E.2d 312, 315 (2002).

However, "we review questions of law de novo," Rusty's Welding

Serv. v. Gibson, 29 Va. App. 119, 127, 510 S.E.2d 255, 259

(1999) (en banc), mindful that, "[w]hile the provisions of the

Virginia [Workers' Compensation] Act are to be liberally

construed to see that [the Act's] benefits are awarded to


     1
       Claimant does not challenge this finding by the
commission.
                              - 6 -
injured employees, that principle [neither] authorize[s] the

courts to amend, alter or extend its provisions, nor . . .

require[s] that every claim asserted be allowed," Bowden v.

Newport News Shipbuilding & Dry Dock Co., 11 Va. App. 683, 688,

401 S.E.2d 884, 887 (1991).   While we generally give great

weight and deference, on appeal, to the commission's

construction of the Workers' Compensation Act, we are "not bound

by the commission's legal analysis in this or prior cases."

U.S. Air, Inc. v. Joyce, 27 Va. App. 184, 189 n.1, 497 S.E.2d

904, 906 n.1 (1998).

     Claimant contends, on appeal, that his timely filed July

27, 1999 claim was not time-barred because his application and

the October 2001 medical reports of Drs. Molligan and Mein

constituted evidence of a "present and existing" permanent

partial disability occurring within the three-year period

required by statute.   It defies logic, he argues, to conclude

that his permanent medical condition, as described in the

medical reports of Drs. Molligan and Mein in October 2001, did

not exist as of April 24, 2001.   He further asserts that he was

denied the opportunity to present evidence on his claims as a

result of the commission's decision to make an on-the-record

determination and that it would be a grave injustice to deny him

an opportunity to testify at an evidentiary hearing while

denying benefits, in part, on the lack of testimony and evidence


                               - 7 -
in the record.   We find claimant's arguments to be without

merit.

      We begin by noting that the record belies claimant's

assertion that he was denied the opportunity to testify and

otherwise present evidence at an evidentiary hearing.   In his

letter of December 21, 2001, the deputy commissioner

specifically advised claimant of this right.   Claimant, however,

did not request such a hearing until the deputy commissioner

rendered a decision adverse to him.   Any injustice or detriment

to claimant is not the result of commission error.

      We turn next to the crux of claimant's assignment of error.

As relevant to the facts of this case, Code § 65.2-708(A)

requires that an application alleging a change in condition be

filed within thirty-six months from the last day for which

compensation was paid.   See Southwest Va. Tire, Inc. v. Bryant,

31 Va. App. 655, 660, 525 S.E.2d 563, 566 (2000).    Furthermore,

we construe the provision of Code § 65.2-708(A) that "[n]o such

review shall be made after twenty-four months from the last day

for which compensation was paid . . . except . . . 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" to

mean that the change in condition must occur within thirty-six

months from the last day for which compensation was paid.     See

id.   The issue, then, is whether the evidence presented by

claimant established that his permanent partial disability
                              - 8 -
occurred within thirty-six months of April 24, 1998, the last

day for which he was paid compensation, as required by Code

§ 65.2-708(A).    We hold that it did not.

     Claimant timely filed his application on July 27, 1999,

alleging "permanent nerve damage/mobility" of his left arm and

seeking permanent partial disability compensation benefits.

However, relying strictly on his medical records, claimant

offered no testimony or other non-medical evidence to the

commission.   By itself, the medical evidence fails to show that

claimant's permanent disability occurred within three years of

April 24, 1998.

     On February 16, 1998, Dr. Harrington observed that claimant

had a decreased range of motion of his elbow and wrist and

trouble moving several fingers.   However, on March 10, 1998,

Dr. Cline noted claimant had increased motion of his left arm

and no significant pain.   Claimant, who had been treated with

physical therapy in the interim, was advised to continue with

aggressive physical therapy.   Dr. Molligan then released

claimant to light duty work effective March 11, 1998.   As of

that date, none of claimant's doctors had stated that claimant's

impairment, which had improved in March 1998, was permanent.

     From that point, the record is devoid of further medical

evidence of claimant's condition until October 2001, well after

the thirty-six month statute of limitations period had expired.

Although Dr. Molligan concluded at that time that claimant's
                              - 9 -
injury had resulted in a "permanent functional impairment of his

left" arm, the commission concluded that claimant had presented

no evidence that the impairment medically documented in March

1998 continued unabated until October 2001 or resulted in a

permanent impairment prior to October 2001.   These factual

findings of the commission are supported by the record and are,

therefore, binding on appeal.

     Hence, we conclude the commission did not err in finding

that claimant's claim was time-barred by Code § 65.2-708(A).

Accordingly, we affirm the decision of the commission.

                                                         Affirmed.




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