COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Willis
KENNETH C. BIRCH
MEMORANDUM OPINION*
v. Record No. 1419-02-4 PER CURIAM
OCTOBER 22, 2002
KELLAM DISTRIBUTING COMPANY, INC. AND
TWIN CITY FIRE INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Kenneth C. Birch, pro se, on brief).
(William C. Walker; Taylor & Walker, P.C., on
brief), for appellees.
Kenneth C. Birch (claimant) contends the Workers'
Compensation Commission erred in finding that (1) his July 11,
2001 change-in-condition application was barred by the
applicable statute of limitations; and (2) he failed to prove
that his medical treatment and prescriptions, other than
Dr. Charles D. Stegman's June 25, 1985, June 24, 1988, and
June 29, 1989 treatments, were causally related to his
compensable September 30, 1983 back injury. Upon reviewing the
record and the parties' briefs, we conclude that this appeal is
without merit. Accordingly, we summarily affirm the
commission's decision. Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. Statute of Limitations
Code § 65.2-708 requires that an application alleging a
change in condition and seeking temporary disability benefits
must be filed within two years from the last date for which
compensation was paid. A change-in-condition application
seeking permanent disability benefits must be filed within three
years from the last date for which compensation was paid.
Claimant last received compensation on September 30, 1984.
He did not file his application until July 11, 2001, over
sixteen years since the last date for which compensation was
paid. Accordingly, the commission did not err in finding that
claimant's application seeking an award of disability benefits
was untimely.
II. Medical and Prescription Expenses
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
"Whether the employer is responsible for medical
expenses . . . depends upon: (1) whether the medical service was
causally related to the industrial injury; (2) whether such
other medical attention was necessary; and (3) whether the
treating physician made a referral." Volvo White Truck Corp. v.
Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903, 906 (1985). 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
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conclusive upon us. See Tomko v. Michael's Plastering Co., 210
Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In denying claimant's claim for certain medical benefits,
the commission found as follows:
We find that the claimant has shown
that Dr. Stegman's treatment on June 25,
1985, June 24, 1988, and June 29, 1989, were
the result of the 1983 accident. For the
later dates, we cannot infer causation
because too much time has passed. . . .
Dr. Stegman, as the claimant's attending
physician, has treated the claimant on
occasion for many years since the accident.
He diagnosed the claimant with "chronic"
back pain and his office invoices indicate
diagnoses of "back pain" and "sciatica
pain." The claimant testified that he
continued to suffer from back pain and he
claimed medical benefits for this pain
caused by the accident since at least
November 7, 1994, when he filed a Claim for
such benefits.
As for the prescriptions for pain,
muscle relaxant, and anti-inflammatory
medications, we do not believe that the
claimant has shown a connection between the
1983 accident and these medications. Absent
an opinion or at least treatment records
from Dr. Stegman showing that these
medications were prescribed for back pain we
are unable to speculate that they are the
result of the 1983 accident. We note that
the claimant also suffers from other health
conditions that might cause him pain. For
these reasons, we find the employer was not
responsible for the June 15 and June 25,
2001 prescription costs.
In light of the lack of any medical evidence causally
connecting the claimed medical and prescription costs to
claimant's compensable September 30, 1983 back injury, we cannot
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find as a matter of law that claimant's evidence sustained his
burden of proof.
For these reasons, we affirm the commission's decision.
Affirmed.
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