COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

Argued at Alexandria, Virginia 

DAVIS H. ELLIOT CO., INC. and 

 NATIONAL UNION FIRE INSURANCE 

 COMPANY OF PITTSBURGH 

 MEMORANDUM OPINION* BY 

v. Record No. 2240-95-4 JUDGE JAMES W. BENTON, JR. 

 APRIL 2, 1996 

EVERETTE L. PRICE 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Robert M. McAdam (Wooten & Hart, P.C., 

 on brief), for appellants. 

 No brief or argument for appellee. 

 On this appeal, the employer, Davis H. Elliot Co., Inc., 

contends that no credible evidence supports the commission's 

findings (1) that Everette L. Price filed a claim for permanent 

partial benefits on February 2, 1993, and (2) that Price's claim 

was still pending. We conclude that the findings are supported 

by credible evidence, and we affirm the decision. 

 The principle is well established that "[t]he commission's 

findings of fact are conclusive and binding on us when there is 

credible evidence in support of such findings." Island Creek 

Coal Co. v. Breeding, 6 Va. App. 1, 12, 365 S.E.2d 782, 788 

(1988). Equally well established is our obligation on appeal to 

"review the evidence in the light most favorable to the 

prevailing party [in the commission]." R.G. Moore Building Corp. 

 

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

designated for publication. 
- 2 - 

v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 

 Viewed in the light most favorable to Price, the evidence 

proved that on November 2, 1988, Price was shocked by a 13,800 

volt electrical charge while working for the employer. The 

employer and Price signed a memorandum of agreement for payment 

of compensation for burn injuries to Price's left hand and right 

leg. Consistent with their agreement, the commission entered an 

award of compensation for temporary total disability from 

November 10, 1988. Effective February 6, 1991, the employer 

suspended Price's benefits because Price refused selective 

employment and failed to cooperate with vocational rehabilitation 

services. The commission upheld the suspension. 

 This appeal arises from a hearing and decision that occurred 

after the commission received a claim from Price on February 19, 

1993. At the hearing, the employer defended, as pertinent to 

this appeal, on the grounds that Price's claim was barred by the 

two year statute of limitations of Code § 65.2-708. At the 

evidentiary hearing, Price testified, however, that he mailed his 

claim for benefits and a handwritten letter to the commission on 

February 2, 1993. Price also entered in evidence a certified 

mail receipt to show that a document was mailed to the commission 

on February 2, 1993. He testified that the claim form and letter 

the commission received on February 19, 1993, were sent by 

certified mail on February 2, 1993. 

 Peggy Sink testified that she went with Price to the post 
- 3 - 

office on February 2 to mail some documents. Another witness, 

Anita Lawrence, testified that Price came to her office and 

obtained a claim form for disability benefits. Although she 

recalled that Price obtained the form on February 2, her 

telephone log indicates he was in her office on February 1. She 

also testified that Price later told her he had mailed the form 

and the letter by certified mail on February 2. 

 In the letter the commission received from Price on February 

19, Price indicated that he was unable to contact his attorney. 

He also stated that he had a permanent injury and was totally 

disabled. On the claim form that accompanied the letter, Price 

noted that his claim was for injury by accident, referred to the 

prior award, and indicated that he was seeking compensation for 

wage loss and medical benefits. In a letter filed with the 

commission on July 21, 1994, Price's attorney specifically raised 

the issue of Price's permanent injuries. 

 Based upon these facts and other evidence in the record, the 

deputy commissioner found that Price's handwritten letter had 

sufficiently stated a claim for permanent partial disability 

benefits and that Price's claim was filed on February 2, 1993. 

The deputy commissioner also found that Price was not entitled to 

temporary total disability benefits because the medical evidence 

did not conclusively show he was totally disabled. The deputy 

commissioner further found that Price was partially disabled and 

that, even if Price had made a good faith effort to obtain light 
- 4 - 

work, he had not offered to cooperate with vocational 

rehabilitation services. The deputy commissioner then denied 

Price's application for permanent partial benefits because the 

evidence did not prove that Price had reached maximum medical 

improvement. The deputy commissioner further ruled that the 

claim for permanent partial benefits would remain pending. The 

commission affirmed the deputy commissioner's findings. 

 The facts recited above were proved in evidence and accepted 

by the commission. The documentary evidence proved that the 

letter and claim form were received by the commission and that 

the receipt for certified mail dated February 2, 1993, contained 

the same document number that was handwritten on the letter and 

claim form. In addition, Price and two witnesses gave testimony 

from which both the deputy commissioner and the commission 

concluded that the documents were mailed February 2, 1993. We 

conclude that credible evidence supports the commission's 

findings that Price's claim was filed when mailed on February 2, 

prior to the expiration of the February 6, filing deadline. 

 The commission's finding that Price's documents were 

sufficient to establish a claim for permanent partial disability 

benefits also finds support in credible evidence. Price's letter 

stated that he sought "to protect my rights of a perman[ent] 

injury." The commission could reasonably find that Price sought 

to claim benefits for the injuries noted in both the letter and 

the claim form. 
- 5 - 

 The commission also found as follows: 

 Although a view of [Price] revealed extensive 

scarring on his legs, which the Deputy 

Commissioner found to be related to the 

accident, the medical reports do not 

establish that he has reached maximum medical 

improvement. The Court of Appeals has held 

that where uncontradicted evidence proves a 

present and existing disability, a claim for 

permanency is timely if filed under the 

thirty-six month period. Therefore the 

claim, although not ripe, is still pending. 

Johnson v. Ivy H. Smith, 16 Va. App. 167, 

169, 428 S.E.2d 508 (1993). 

 These findings, as are the others, are supported by credible 

evidence and are binding on appeal. Breeding, 6 Va. App. at 12, 

365 S.E.2d at 788. Accordingly, we affirm the decision. 

 Affirmed.