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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