COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

ALBERT B. DARENSBOURG 

v. Record No. 1915-95-2 MEMORANDUM OPINION*

 PER CURIAM 

HUSS, INC. JANUARY 30, 1996 

AND 

AETNA CASUALTY AND SURETY COMPANY 

 FROM THE VIRGINIA WORKERS' 

COMPENSATION COMMISSION 

 (James B. Feinman, on briefs), for appellant. 

 (John M. Oakey; McGuire, Woods, Battle & Boothe, on 

brief), for appellees. 

 Albert B. Darensbourg ("claimant") contends that the 

Workers' Compensation Commission erred in finding that his 

application for permanent partial disability benefits was barred 

by the applicable statute of limitations contained in Code 

§ 65.2-708. 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. 

 Claimant sustained a compensable injury by accident to his 

knee on May 31, 1991. Pursuant to an August 13, 1991 award, 

employer paid claimant temporary total disability benefits from 

July 17, 1991 through October 27, 1991. On August 9, 1993, 

claimant filed his first "Claim for Benefits," seeking an award 

 

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

designated for publication. 
 2 

of permanent partial disability benefits based upon Dr. W. C. 

MacCarty's thirty percent impairment rating rendered on July 14, 

1992. The commission used its on-the-record procedure to rule 

upon this claim. On December 9, 1993, the deputy commissioner 

denied the August 9, 1993 Claim for Benefits on the ground that 

employer was entitled to obtain another medical opinion from Dr. 

Bernard A. Lublin as it had been over one year since the claimant 

had undergone an evaluation. Claimant had failed to appear at an 

appointment with Dr. Lublin arranged by employer for a second 

opinion. The deputy commissioner stated in her opinion: 

 For the reasons stated above, the relief 

sought by the claimant in his application of 

August 9, 1993 is denied. 

 This matter is hereby removed from the 

docket. 

 You may review this decision 

by filing a 

 request for review 

within 20 days from the 

date of this opinion. 

The review should be 

filed with the Clerk of 

the Commission and must 

conform to the 

Commission's rules for 

review. 

Claimant did not appeal this finding to the full commission. 

 On January 6, 1994, claimant returned to Dr. Lublin. Dr. 

Lublin ordered a program of quadriceps weight training and told 

claimant to return in two weeks. On January 21, 1994, Dr. Lublin 

again examined claimant. Dr. Lublin instructed claimant to 

continue his exercises and opined that, if claimant did not 

improve with conservative measures, arthroscopic surgery might be 
 3 

necessary. Dr. Lublin advised claimant to return on February 15, 

1994. Claimant did not appear for or reschedule this 

appointment. Thereafter, claimant treated with Dr. MacCarty. 

 On March 23, 1995, claimant filed a second "Claim for 

Benefits" form, again seeking an award of permanent partial 

disability benefits. Citing Code § 65.2-708, the commission, in 

a review on the record, denied this application on the ground 

that it was filed more than thirty-six months after compensation 

was last paid on October 27, 1991. In doing so, the commission 

found that the deputy commissioner's December 9, 1993 ruling on 

claimant's August 9, 1993 claim was final. 

 Claimant contends that the commission erred because the 

deputy commissioner's December 9, 1993 opinion ruling on 

claimant's August 9, 1993 claim did not "dismiss" the claim but 

only removed the claim from the hearing docket. Claimant also 

asserts that he filed the second Claim for Benefits form on March 

23, 1995 merely to get his claim back on the hearing docket, not 

to file a new claim. 

 The record clearly shows that the commission decided and 

denied claimant's August 9, 1993 Claim for Benefits due to 

claimant's delay and his refusal to submit to an examination by 

employer's doctor. Although the deputy commissioner did not use 

the word "dismissed," she denied the claim, removed it from the 

docket, and instructed the parties concerning their right to 

appeal the decision. Claimant did not appeal this decision. 
 4 

Therefore, it became final. Although claimant saw Dr. Lublin in 

January 1994, he waited until March 1995, beyond the thirty-six 

months time restriction of Code § 65.2-708, to file another claim 

for permanency benefits. 

 Claimant's reliance on Keenan v. Westinghouse Elevator Co., 

10 Va. App. 232, 391 S.E.2d 342 (1990), is misplaced. In Keenan, 

the claimant filed a claim for benefits and then later filed an 

application for a hearing, which he subsequently withdrew. The 

commission entered an order stating that the hearing would not 

take place and ordered the case removed from the hearing docket. 

Id. at 233-34, 391 S.E.2d at 343. In this case, unlike Keenan, 

claimant did not file a separate application for a hearing. 

Moreover, the deputy commissioner did not simply remove the 

August 9, 1993 claim from the hearing docket. Rather, the deputy 

commissioner decided the claim on the record and entered an award 

consistent with that decision. Claimant did not appeal this 

ruling. As such, we cannot say as a matter of law that the 

commission erred in denying the March 23, 1995 Claim for Benefits 

on the ground that it was barred by the thirty-six month statute 

of limitations contained in Code § 65.2-708. Accordingly, we 

affirm the commission's decision. 

 Affirmed.