COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Frank
Argued at Salem, Virginia
RUSSELL A. STRONG
OPINION BY
v. Record No. 1866-00-3 JUDGE RUDOLPH BUMGARDNER, III
MARCH 20, 2001
OLD DOMINION POWER COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
P. Heith Reynolds (Wolfe, Farmer,
Williams and Rutherford, on brief), for
appellant.
Elsey A. Harris, III (Chad S. Dotson;
Mullins, Harris & Jessee, on brief), for
appellee.
Russell A. Strong appeals the decision of the Workers'
Compensation Commission that the statute of limitations barred
his claim for benefits. Concluding that Old Dominion Power
Company properly asserted the statute of limitations as a
defense, we affirm.
The parties stipulated the injury was compensable and the
periods of disability. The employee injured his back at work on
June 13, 1995. The employer put the employee on long-term
disability on February 11, 1997, paid all medical bills, and
paid either benefits or compensation from June 20, 1997 through
December 1999. The employer filed its first report of accident
with the commission on February 20, 1996. The commission sent
the employee a "blue letter" on February 26, 1996, which
explained an employee's obligation to file a claim within two
years from the date of the injury. That letter was never
returned to the commission as undelivered.
The two-year period for filing a claim expired June 13,
1997. 1 The employee filed a claim for compensation on November
2, 1998. The employer asserted the defense of the statute of
limitations, and the commission ruled the statute barred the
claim.
The employee dealt with the employer's human resources
department about his injury. He spoke perhaps twice with claims
representative Carl Wise about whether the employer would pay
for the functional capacities examination, wages, and medical
bills. The employee testified the employer paid all his medical
bills, benefits, and compensation.
The employee also spoke with Allyson Ritchie of the human
resources department about his entitlement to long-term
disability benefits. Ritchie wrote the employee a letter March
26, 1998 that explained supplemental insurance and noted the
insurance benefit would be offset by any compensation paid.
1
The commission found that the employee did not file his
claim until seventeen months after the statute of limitations
period expired, two years after the accident. We note, however,
that the statute was tolled until February 20, 1998, two years
after the filing of the employer's first report. Code
§ 65.2-602. This discrepancy does not affect the outcome of
this case.
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Both parties signed a memorandum of agreement and submitted
it to the commission in March 1998. The agreement was not
processed because it was incomplete. A second memorandum of
agreement was submitted, but it was not signed by both parties.
The commission never approved an agreement and never entered an
award. There was no outstanding award in this case.
The employee filed his claim after the statute of
limitations expired, but contends the statutory defense is not
available to the employer. He asserts three different doctrines
that bar the employer's plea of the statute of limitations:
estoppel, imposition, and de facto award.
A worker must file a claim within two years of the
industrial accident. Code § 65.2-601. The statute of
limitations bars the employee's claim unless the bar is tolled,
Code § 65.2-602, the employer is estopped from asserting the
defense, American Mutual Liability Ins. Co. v. Hamilton, 145 Va.
391, 135 S.E. 21 (1926), or the doctrine of imposition bars the
defense, Avon Products, Inc. v. Ross, 14 Va. App. 1, 415 S.E.2d
225 (1992).
To estop the employer from pleading the statute of
limitations, the employee must present clear, precise, and
unequivocal evidence that he refrained from filing a claim
because he relied to his detriment upon the acts or statements
of the employer. Rose v. Red's Hitch & Trailer Servs., Inc., 11
Va. App. 55, 59-60, 396 S.E.2d 392, 394-95 (1990). If the
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employer's representation induced the employee to refrain from
filing a claim, it does not matter whether the employer harbored
such intent. Cibula v. Allied Fibers & Plastics, 14 Va. App.
319, 325, 416 S.E.2d 708, 711 (1992), aff'd, 245 Va. 337, 428
S.E.2d 905 (1993).
The employee testified that no one told him he must file a
claim within two years or do anything further than he had done.
He points to the employer's payment of medical bills, the
employer's participation in his medical care, phone
conversations, the letter of March 26, 1998 from Ritchie, and
the employer's 1994 personnel handbook to support his claim that
the employer's conduct induced his reliance. The employee
contends the letter from Ritchie told him to sit back and wait,
and he relied on that advice.
First, employers have no obligation to advise an employee
of the period in which a claim must be filed. Stuart Circle
Hosp. v. Alderson, 223 Va. 205, 208, 288 S.E.2d 445, 446 (1982).
When the deputy commissioner asked the employee what Wise or
anyone else said about filing a workers' compensation claim, the
employee responded, "They just -- I never had any conversation
at all." The commission found that the employer made no
assurances regarding the workers' compensation claim. The
employer's silence, where there was no duty to disclose, was not
a representation upon which the employee could later rely. It
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was not employer's responsibility to advise the employee of the
filing requirement.
Second, the employer is not estopped from asserting the
statute of limitations defense merely because it voluntarily
paid (1) medical bills, id. at 208, 288 S.E.2d at 446, (2)
wages, Clark v. United Airlines, 223 Va. 197, 200, 288 S.E.2d
441, 442-43 (1982), or (3) benefits, Bowden v. Newport News
Shipbuilding & Dry Dock Co., 11 Va. App. 683, 686-87, 401 S.E.2d
884, 886 (1991). The employer's payment of benefits and medical
bills and its participation in the employee's medical care for
two years are not sufficient conduct upon which the employee can
rely to excuse his failure to file a claim.
The employee also stresses Ritchie's letter of March 26,
1998. The employee was asked, "Did [Ritchie] tell you . . . you
didn't need to file a claim with the commission, [or] that you
didn't need to do anything just as far as perfect your claim or
anything like that?" The employee responded, "I sent in what
she sent me to send in to CNA [on the supplemental insurance
policy] and she said I was in good shape. Just wait for CNA to
come through." The letter did not state that the employee need
not file a workers' compensation claim, or that an application
had been filed, or that everything that needed to be done had
been done. The letter outlined long-term disability benefits,
not a workers' compensation claim.
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The employee contends the employer's handbook mislead him
because the workers' compensation section of the handbook stated
the employee's sole responsibility was to notify his employer of
the accident. The commission did not specifically address the
employer's handbook, but that statement does not amount to a
misrepresentation upon which the employee could reasonably rely.
The employee never testified that he relied upon the handbook.
He never explained why the blue letter did not correct any
misconception that arose from the handbook. The evidence did
not support the employee's contention that this particular
document caused him to refrain from filing a claim.
Where the employee receives notice from the commission
about the filing of a claim, there is a presumption he was not
prejudiced. Code § 65.2-602; Caskey v. Dan River Mills, 225 Va.
405, 411, 302 S.E.2d 507, 510 (1983); Jenkins v. Ford Motor Co.,
27 Va. App. 281, 291, 498 S.E.2d 445, 450 (1998). Though the
employee did not recall receiving the commission's blue letter,
the commission found no evidence that he did not receive that
guide. It was not returned to the commission.
No evidence suggested an affirmative or deliberate effort
by the employer to prejudice the employee's right to file a
timely claim. No statement or conduct by the employer
constituted a representation concerning the workers'
compensation claim upon which the employee could reasonably rely
to his detriment. Cf. American Mutual, 145 Va. at 406, 135 S.E.
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at 25; Cibula, 14 Va. App. at 325, 416 S.E.2d at 711 (employer
estopped from asserting defense because it affirmatively told
employee claim had been submitted and his bills would be paid).
Further, with the exception of the employer's personnel
handbook given the employee in 1994, the statements and conduct
upon which the employee claimed to have relied occurred after
the statute of limitations expired. They could not have induced
the employee to delay filing a timely claim.
Next, we consider whether the commission erred in ruling
the doctrine of imposition was inapplicable. The doctrine of
imposition "empowers the commission in appropriate cases to
render decisions based on justice shown by the total
circumstances even though no fraud, mistake or concealment has
been shown." Odum v. Red Lobster #235, 20 Va. App. 228, 234,
456 S.E.2d 140, 143 (1995). The commission is empowered "to do
full and complete justice." Avon Products, 14 Va. App. at 8,
415 S.E.2d at 229 (imposition barred employer from asserting
statutory defense where employer assured employee that all
papers necessary to filing a claim had been filed).
The doctrine prevents an employer's use of its superior
knowledge of, or experience with, the Workers' Compensation Act
or its use of economic advantage to cause an unjust deprivation
to the employee of benefits provided by the Act. "[T]he
doctrine applies where, . . . the record shows a series of acts
by the employer . . . upon which a claimant naturally and
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reasonably relies to his or her detriment." Butler v. City of
Virginia Beach, 22 Va. App. 601, 605, 471 S.E.2d 830, 832 (1996)
(citations omitted). As noted, the evidence in this case does
not support a finding of reasonable reliance by the employee.
The employer's conduct evinced its intent to comply with
the Act. The employer filed a first report of accident with the
commission, accompanied the employee to his medical
appointments, exchanged memoranda with his physicians, and paid
compensation and medical bills for two years. These actions
were consistent with the intent of the Act, and the doctrine of
imposition does not apply where the employer's conduct is
consistent with trying to comply with the Act. Cheski v.
Arlington County Public Schools, 16 Va. App. 936, 940, 434
S.E.2d 353, 356 (1993). The commission did not err in finding
the doctrine of imposition inapplicable to these facts.
The employee argues Avon Products controls. In that case,
the employee contacted the employer immediately after her injury
and the employer paid her compensation for four years. The
employee received notice from the commission to file a
memorandum of agreement. She immediately contacted the employer
about the need to file the agreement and the employer advised
her "whatever was necessary to protect her interests had been
done." 14 Va. App. at 3, 415 S.E.2d at 226. No memorandum was
filed or accepted. The commission found the employer's
representations justified the claimant's reliance and the facts
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created an imposition that required the commission to hold that
an award was in effect.
Here, the employer made no similar representations to the
employee regarding the compensation claim. The payment of
benefits and medical bills for two years was not sufficient.
While the employer accepted the claim as compensable, the filing
of the memorandum of agreement did not occur until after the
statutory period had passed. Moreover, without commission
approval, a memorandum of agreement is null and void. Code
§ 65.2-701(A); Damewood v. Lanford Brothers Co., 29 Va. App. 43,
45, 509 S.E.2d 530, 531 (1999).
Finally, the employee suggests that the doctrine of de
facto awards might be applied. The employee concedes that the
doctrine has not been applied to a plea of the statute of
limitations and does not suggest why it should be extended.
The doctrine of de facto awards was first approved in
National Linen Serv. v. McGuinn, 5 Va. App. 265, 269-70, 362
S.E.2d 187, 189 (1987) (en banc). That case specifically
distinguished cases involving a plea of the statute of
limitations. On the basis of that authority, Adkins v. Nabisco
Biscuit, 97 Vap. UNP 1803962, Record No. 1803-96-2 (July 29,
1997), held de facto awards did not apply to the statute of
limitations defense, which comported with the commission's
ruling in Adkins v. Nabisco, Inc., 75 O.W.C. 285 (1996). Here,
there is no presumed prejudice because the employer filed the
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first report. We decline to apply the doctrine to a case
lacking misrepresentation or reasonable reliance but
demonstrating the employer's compliance with the Act.
Accordingly, we affirm the commission's holding that the
statute of limitations barred the claim.
Affirmed.
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