COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

SAMUEL RICHARDSON 

v. Record No. 0450-96-4 MEMORANDUM OPINION*

 PER CURIAM 

CONCRETE WALLS, INC. JUNE 18, 1996 

AND 

ROYAL INSURANCE COMPANY OF AMERICA 

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (James D. Alvey; Alvey & Alvey, on briefs), 

for appellant. 

 (Edward H. Grove, III; Brault, Palmer, Grove, 

Zimmerman, White & Mims, on brief), for 

appellees. 

 Samuel Richardson ("claimant") appeals a decision of the 

Workers' Compensation Commission ("commission") denying his 

application for reinstatement of temporary total disability 

benefits based upon a change in condition related to a November 

4, 1992 right knee injury. Claimant contends that the commission 

erred in refusing to consider his application on the ground that 

it was not timely filed. Specifically, claimant argues that the 

commission erred in (1) finding that he sustained a new injury on 

November 4, 1992, rather than a change in condition; (2) applying 

the two-year statute of limitations contained in Code § 65.2-601, 

rather than the limitations period contained in Code § 65.2-708; 

and (3) ignoring the January 1993 Supplemental Memorandum of 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
Agreement and January 25, 1993 award. Finding no error, we 

affirm the commission's decision. 

 I. 

 On May 21, 1992, claimant sustained an injury by accident to 

his right ankle. On July 27, 1992, the commission approved a 

Memorandum of Agreement entered into between the parties and, on 

July 29, 1992, the commission entered an award. The post-May 21, 

1992 medical records do not contain any evidence of an injury to 

claimant's right knee. On September 9, 1992, claimant returned 

to his pre-injury work. 

 Claimant testified that, sometime in November 1992, he 

injured his right knee when he twisted his right ankle and right 

knee while chasing his dog. On November 5, 1992, Dr. David A. 

Kavjian, an orthopedic surgeon, examined claimant for increased 

right ankle pain and for right knee pain and swelling. Claimant 

told Dr. Kavjian that he twisted his right ankle and then his 

knee while chasing after his dog on November 4, 1992. On 

November 25, 1992, claimant underwent right knee surgery, which 

revealed a partial tear of the anterior cruciate ligament, torn 

medial and lateral menisci, and a chondral fracture of the medial 

femoral condyle. 

 On January 25, 1993, pursuant to a fully executed 

Supplemental Memorandum of Agreement, the commission entered an 

award for temporary total disability benefits beginning November 

5, 1992. The Supplemental Memorandum of Agreement referred to 

the May 21, 1992 right ankle injury. 

 In July 1993, Dr. George Branche, III, performed additional 
 3 

surgery on claimant's right knee. On June 1, 1994, Dr. Branche 

opined that claimant could return to work. Claimant received 

temporary total disability from November 5, 1992 through May 31, 

1994. On March 17, 1995, Dr. Branche opined that claimant must 

be on a sedentary work schedule due to continued problems with 

his right knee. On January 4, 1995, Dr. Jeffrey S. Malka also 

opined that claimant should be retrained for sedentary work due 

to his knee condition. 

 On May 26, 1995, claimant filed an application requesting 

reinstatement of temporary total disability benefits commencing 

February 25, 1995, and vocational rehabilitation, based upon an 

alleged change in condition related to his right knee condition. 

 Claimant relied upon the reports of Drs. Branche and Malka. 

 The commission held that claimant's May 26, 1995 application 

for benefits related to his right knee condition was not timely 

filed. In so ruling, the commission held that claimant's 

November 4, 1992 right knee injury constituted a new injury 

rather than a change in condition. The commission found that, 

"[n]either the content of the medical reports nor the employee's 

sworn testimony provide sufficient evidence for a determination 

that the employee's right knee injury was either a compensable 

consequence of the industrial accident to his right ankle or a 

change in condition from the initial injury." Therefore, the 

commission ruled that the two-year statute of limitations 

contained in Code § 65.2-601 governed claimant's application. 
 4 

Because claimant did not file an application for benefits related 

to his right knee condition within two years from the date of his 

accident, i.e., November 4, 1992, the commission held that the 

application was time-barred. 

 II. 

 Claimant bore the burden of proving that his May 26, 1995 

application constituted a timely change in condition application 

related to his right knee injury. 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 conclusive upon us. 

Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 

833, 835 (1970). 

 Claimant's argument hinges on his contention that the 

January 1993 Supplemental Memorandum of Agreement and the January 

25, 1993 award provided for benefits related to his November 4, 

1992 right knee injury. There is no evidence to support this 

contention. First, the Supplemental Memorandum of Agreement 

refers to the May 21, 1992 ankle injury. It does not contain any 

reference to a November 4, 1992 right knee injury. Second, the 

post-November 4, 1992 medical records show that claimant 

sustained increased right ankle pain, as well as right knee pain. 

 Third, claimant testified unequivocally that he injured his 

right knee while chasing his dog on November 4, 1992. He gave no 

indication that the May 21, 1992 right ankle injury caused the 

right knee injury. Based upon these undisputed facts, the 
 5 

commission reasonably concluded that the Supplemental Memorandum 

of Agreement and subsequent award provided for a resumption of 

temporary total disability benefits related only to the 

aggravation of claimant's compensable May 21, 1992 ankle injury 

on November 4, 1992, and did not provide benefits for any 

disability related to his November 4, 1992 right knee injury. 

Because claimant never filed an original application for benefits 

related to the right knee injury, the commission did not err in 

finding that his May 26, 1995 application could not be treated as 

a change in condition application. Rather, the application 

constituted an initial claim for benefits related to claimant's 

right knee condition. As such, we cannot say as a matter of law 

that the commission erred in finding the May 26, 1995 application 

time-barred because it was not filed within two years from 

November 4, 1992. 

 In addition, no medical evidence showed that claimant's 

right knee injury constituted a change in condition causally 

related to his May 21, 1992 right ankle injury or that his right 

knee injury was a compensable consequence of the initial injury. 

 "[W]here the facts establish a new and separate compensable 

injury rather than a compensable change in condition, the time 

limitations of Code § 65.1-87 [now Code § 65.2-601] are 

applicable and the claimant may not use a change in condition 

application to invoke the time limitations of Code § 65.1-99 [now 

Code § 65.2-708]." Bartholow Drywall Co. v. Hill, 12 Va. App. 
 6 

790, 796-97, 407 S.E.2d 1, 4-5 (1991). 

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

 Affirmed.