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. 
 2 

 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.