Thomas v. Virginia International Terminals, VWC File No. 217-40-50 (April 28, 2010).

Claimant sustained a compensable left shoulder injury on October 23, 2003. On
January 28, 2004, Claimant filed an application for “all benefits to which he is or may be entitled pursuant to the Virginia Workers’ Compensation Act.” On August 27, 2008, the Claimant received a permanent partial impairment rating. On January 20, 2009, the Claimant filed another application for “all benefits” including permanent partial disability benefits. The Employer asserted that the claim was barred by the statute of limitations and the Deputy Commissioner agreed.

On review to the full Commission, the Deputy Commissioner’s decision was affirmed and the Commission held that a Claimant cannot file a speculative claim for permanent partial benefits in order to extend the time for which the benefits may be awarded. Instead, the Claimant must show some impairment at the time the application is filed or within two years following the date of the accident. In this case, the claimant had undergone two surgeries within the statutory period, which the Commission found to be insufficient by itself to establish permanent disability. After the Claimant had his surgeries, he reported that he was not suffering from any problems.

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