COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Bumgardner and Clements
Argued at Chesapeake, Virginia
KIM BRANCH HARRIS
OPINION BY
v. Record No. 2750-01-1 JUDGE RUDOLPH BUMGARDNER, III
APRIL 23, 2002
VIRGINIA BEACH GENERAL HOSPITAL AND
MANUFACTURERS ALLIANCE INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Robert J. Macbeth, Jr. (Rutter, Walsh,
Mills & Rutter, L.L.P., on brief), for
appellant.
Robert A. Rapaport (Jennifer G. Tatum;
Clarke, Dolph, Rapaport, Hardy & Hull,
P.L.C., on brief), for appellees.
Kim Branch Harris appeals the denial of her claim for
reinstatement of suspended benefits. She contends the Workers'
Compensation Commission erred in applying the statute of
limitations of Code § 65.2-708. 1 She also contends the doctrines
1
Code § 65.2-708(A) provides in pertinent part:
Upon its own motion or upon the
application of any party in interest, on the
ground of a change in condition, the
Commission may review any award and on such
review may make an award ending, diminishing
or increasing the compensation previously
awarded . . . . No such review shall be
made after twenty-four months from the last
day for which compensation was paid,
pursuant to an award under this title
. . . .
of estoppel or imposition bar a defense of the statute of
limitations. Finding no error, we affirm.
The worker sustained a compensable injury to her back in
1991. The last compensation award was entered December 5, 1995.
The worker was referred to Dr. Lisa Barr, but she refused
Dr. Barr's treatment. The deputy commissioner suspended the
worker's benefits for unjustifiably refusing medical treatment
effective September 12, 1997. The commission and this Court
affirmed the suspension.
On October 10, 2000, more than two years after compensation
was last paid, the worker filed an application to reinstate
benefits. She alleged that she had cured her prior refusal of
medical care by receiving treatment from Dr. Barr from May 19,
1999 to June 21, 1999. The deputy commissioner ruled that Code
§ 65.2-708 barred the application as untimely, and the full
commission affirmed.
The worker contends Code § 65.2-708 does not apply to
reinstatement of suspended benefits. She cites Hercules, Inc.
v. Carter, 13 Va. App. 219, 409 S.E.2d 637, aff'd en banc, 14
Va. App. 886, 419 S.E.2d 438 (1992), and maintains she was
entitled to an automatic reinstatement of benefits upon curing
her refusal of treatment.
In Hercules, the commission suspended benefits when a
worker refused selective employment. Subsequently, the worker
cured the refusal and sought to reinstate his award. This Court
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held that Code § 65.2-708 did not control because the statute
applied only to a '"change in the conditions under which
compensation was awarded or terminated . . . .'" Id. at 223,
409 S.E.2d at 639 (quoting Code § 65.1-8, now Code § 65.2-101).
The worker's benefits were suspended, and the definition of
"change in condition" did not encompass "suspended" benefits.
By implication, Code § 65.2-708 would apply had the term
"suspended" been included in the definition.
In 1991, the General Assembly amended the definition of
"change in condition" and inserted the term "suspended": "any
change in the conditions under which compensation was awarded,
suspended, or terminated . . . ." Code § 65.2-101 (emphasis
added). With that amendment, the rationale of Hercules
commanded a different result. Code § 65.2-708 had not applied
to suspended awards because the definition of "change of
condition" did not include the term "suspended." However, the
code section would apply to suspended awards after the General
Assembly inserted the term into that definition.
The commission also reached that conclusion in Attia v. W9Y
Constr. Co., Inc., 76 Va. WC 332, 336-37 (1997) (after 1991
suspended awards are reviewed under Code § 65.2-708), and Kaya
v. Northwest Airlines, 77 Va. WC 108, 112 (1998) (the expanded
definition of change of condition "effectively vitiated the
distinction between suspended and terminated"). Interpretations
of the act by the commission are entitled to great weight.
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Peyton v. Williams, 206 Va. 595, 600, 145 S.E.2d 147, 151
(1965).
Code § 65.2-708 required the worker to file a change in
condition application within two years from the last date
compensation was paid. Armstrong Furniture v. Elder, 4 Va. App.
238, 241, 356 S.E.2d 614, 615 (1987). That was September 12,
1997. The worker filed her application October 10, 2000, more
than two years after she was last paid compensation. The
application was not timely and was barred by the statute of
limitations. 2
Next, we consider whether the doctrines of estoppel or
imposition bar the employer from asserting its plea of the
statute of limitations. Estoppel bars a plea of the statute of
limitations if a worker relied on an employer's acts or
statements to her detriment and refrained from filing a claim.
Rose v. Red's Hitch & Trailer Servs., Inc., 11 Va. App. 55,
59-60, 396 S.E.2d 392, 394-95 (1990). The doctrine of
imposition empowers the commission "to do full and complete
justice" and permits an award even in the absence of fraud,
mistake, or concealment. It bars an employer from asserting the
2
The worker argues that Code § 65.2-708(C) extends the
period of the statute of limitations. Those provisions do not
apply because she received no compensation after September 11,
1997 and could not have been lulled into a false sense of
security. Scott v. Scott, 16 Va. App. 815, 819, 433 S.E.2d 259,
262 (1993).
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defense when it used economic leverage or superior knowledge to
induce the worker to refrain from filing a petition. Avon
Prods., Inc. v. Ross, 14 Va. App. 1, 8, 415 S.E.2d 225, 229
(1992).
The worker contends the doctrines of estoppel or imposition
apply because the employer knew of and paid for her medical
treatment. However, voluntary payment of medical bills alone
does not bar an employer from asserting the statute of
limitations. Stuart Circle Hosp. v. Alderson, 223 Va. 205, 209,
288 S.E.2d 445, 447 (1982). The worker points to no other acts
or statements of the employer which induced her not to file a
timely petition. The evidence does not support application of
either estoppel or imposition.
We conclude the worker failed to file a timely application
for reinstatement of her suspended benefits. Accordingly, we
affirm.
Affirmed.
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