COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
AUNDRA N. JENKINS
OPINION BY
v. Record No. 0092-97-1 JUDGE JOSEPH E. BAKER
MAY 5, 1998
FORD MOTOR COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Robert J. Macbeth, Jr. (Matthew H. Kraft;
Rutter & Montagna, L.L.P., on brief), for
appellant.
Barry Dorans (Samuel W. Meekins, Jr.;
Wolcott, Rivers, Wheary, Basnight & Kelly,
P.C., on brief), for appellee.
Aundra N. Jenkins (claimant) appeals the decision of the
Workers' Compensation Commission (commission) denying him
benefits under the Workers' Compensation Act (Act). He contends
the commission erred in holding that Ford Motor Company
(employer) was not equitably estopped from asserting the statute
of limitations under Code § 65.2-601 to bar his claim for
benefits. On cross appeal, employer contends no credible
evidence supports the commission's finding that employer
recognized claimant's claim as compensable before the statute of
limitations had expired. For the reasons that follow, we affirm
1
the commission's denial of benefits.
The relevant facts are largely undisputed. On June 28,
1993, a problem with a hoist forced claimant to lift a bumper to
place it into position on a truck. As claimant rose from a
1
Because we affirm the denial of benefits, we do not
consider the issue raised in employer's cross appeal.
squatting position with the bumper in his hands, he felt a strain
in his lower back. He reported the injury to his foreman and to
employer's first aid clinic, where he received treatment through
July 1, 1993.
Claimant completed a form provided by employer and received
payment for the two days of work he missed in June 1993.
Claimant was not aware of the source of those funds. Employer's
records indicate that the form was an application for benefits
under employer's John Hancock insurance plan for short term
disability, not employer's workers' compensation program.
However, a notation on the John Hancock application indicates
that claimant's injury was viewed as a "possible w[orkers']
c[ompensation] case." On July 23, 1993, employer filed with the
commission Form 45A, a report of minor injuries, that included
claimant's June 28, 1993 accident. Claimant did not recall
having received an informational pamphlet about his rights under
the Act from the commission but "[could not] be sure" he did not
2
receive one. The commission's opinion adjudicated the claim as
2
The commission made the following findings:
The employer reported this accident to the
Commission as required on July 23, 1993. Our
records indicate that an employee handbook
was mailed to the claimant at his last known
address, but he did not recall receiving it.
He acknowledged that the Commission's
records contained his correct mailing
address, and there is no evidence that this
booklet was returned which would have been
noted in our records.
(Citation omitted).
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if claimant had received the pamphlet.
In April 1994, claimant experienced pain in his leg and
sought outside medical treatment. The examining physician told
claimant he thought the pain was caused by claimant's back. In
May 1994, claimant returned to employer's clinic and reported
recurring back problems; he received work restrictions and
medication. In August 1994, he again returned to the clinic and
requested referral to an outside physician. Mitchell Ott,
employer's workers' compensation administrator, offered claimant
a panel of physicians, and claimant chose Dr. Frank Burns, an
orthopedic surgeon. Burns examined claimant on August 29, 1994,
recorded a history of the June 28, 1993 injury, and diagnosed
claimant as suffering from a chronic lumbar strain. Dr. Burns
recommended a back exercise program and prescribed
anti-inflammatory medication. Claimant attended one physical
therapy session for back exercise training. When claimant
returned to Dr. Burns on September 12, 1994, he reported his back
was "doing better," and Burns instructed him to return "as
necessary."
Claimant received no additional treatment until February 16,
1995, when he reported to employer's clinic that his back was
stiff due to his June 1993 injury. He was given pain medication.
On May 2 and 3, 1995, he was seen in the clinic, reporting a
two-week history of back spasms radiating down his leg. He saw
employer's clinic physician and received additional medication.
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He returned on May 4, 1995, but employer's physician was
unavailable. Apparently, claimant then sought outside treatment,
underwent an MRI, and was referred to Dr. Isabelle Richmond, a
neurosurgeon. Dr. Richmond examined claimant on June 6, 1995,
reviewed claimant's lumbar MRI, and recommended surgery.
Claimant returned to Ott on June 9, 1995, reported his visit
with Dr. Richmond, and asked employer to authorize Richmond's
care as necessitated by his 1993 injury. Ott had no reports from
Dr. Richmond, and because Dr. Burns was claimant's treating
physician for his 1993 injury, Ott directed claimant to return to
Dr. Burns for evaluation. Ott also wrote a letter to Dr. Burns
asking Dr. Burns to provide a report to "assist in a
determination of whether employer will treat this [claim] as
governed under the [Act]." On June 28, 1995, Burns examined
claimant. He noted that claimant suffered from a herniated disc,
"that this disc is probably related to his original injury, and
is a continuation of the same injury."
On June 29, 1995, Ott received Dr. Burns' recommendation and
prepared a formal first report of injury, dated June 30, 1995,
which he filed with the commission. In addition, because Ott was
going to be out of the office the following week, he contacted
Karen Gibson, a rehabilitation nurse with Resource Opportunities,
to assist claimant in scheduling an appointment with a panel
neurosurgeon. Claimant chose Dr. Warren Foer, and Gibson
scheduled an appointment for July 11, 1995. Dr. Foer agreed with
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the diagnosis of herniated disc and recommended surgery. Foer
believed this process began with the original injury of June 28,
1993.
On July 12, 1995, Ott made a notation in employer's computer
system that employer would accept claimant's claim as compensable
under the Act and would reimburse John Hancock for amounts
already paid. On July 18, 1995, employer began voluntarily to
send claimant compensation checks to cover his time out of work
from June 6, 1995, forward. Compensation payments were made for
various periods through October 8, 1995. Ott acknowledged that
employer never prepared or submitted a Memorandum of Agreement
for these payments. Ott testified that he never told claimant
whether he thought the claim was compensable. Claimant did not
contradict that statement.
Ott acknowledged that employer hired Karen Gibson to monitor
claimant's progress. Gibson accompanied claimant to his medical
appointments and reported her activities to employer. Ott said
this was something employer did "when we have an individual who
has a pretty serious injury and we are . . . paying workers'
compensation benefits."
On September 15, 1995, more than two years after his injury
occurred, claimant wrote the commission denying knowledge that
Code § 65.2-601 required him to file a claim for compensation.
Following a hearing on claimant's application for benefits,
the deputy commissioner ruled that the tolling provisions of Code
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§ 65.2-602 did not apply to toll the statute of limitations
because (1) employer's filing of Form 45A constituted the filing
of a first report as required under that code section and (2)
that filing caused the commission to send claimant its workers'
compensation guide. However, he also held that the doctrine of
equitable estoppel applied to prevent employer from asserting the
statute of limitations in Code § 65.2-601 as a bar to
compensability of the claim.
Employer appealed to the full commission, contending in its
written statement that the deputy had improperly applied the
doctrine of equitable estoppel. Claimant, in his written
statement, argued that the doctrines of both equitable estoppel
and imposition supported the deputy's ruling. 3 Upon its review,
the commission found that "[t]he employer clearly recognized and
accepted this claim as compensable before the statute of
limitations expired on June 28, 1995," but that the claimant
failed "to establish that he was misled by the employer regarding
the filing of a claim, to his detriment."
3
When employer appealed the deputy commissioner's decision
holding it was estopped from asserting the statute of limitations
provisions of Code § 65.2-601, claimant did not appeal the
deputy's finding that the tolling provisions of Code § 65.2-602
were not applicable and, in fact, asserted that the deputy
commissioner's opinion "should be fully affirmed." In addition,
the commission did not address that issue sua sponte. See Brushy
Ridge Coal Co. v. Blevins, 6 Va. App. 73, 78, 367 S.E.2d 204, 206
(1988); Rule 2(A). Therefore, we cannot consider that issue on
appeal. See Rule 5A:18. If claimant wanted that issue reviewed
by the commission, he should have specified it and taken
exception to the deputy's finding thereon.
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Equitable Estoppel
Claimant contends that employer was equitably estopped from
asserting the statute of limitations and that the commission
erred in holding estoppel did not apply. To prove estoppel, a
claimant must show by "clear, precise and unequivocal evidence"
that he relied to his detriment upon an act or statement of
employer or its agent to refrain from filing a claim within the
statutory period. See Rose v. Red's Hitch & Trailer Servs.,
Inc., 11 Va. App. 55, 59-60, 396 S.E.2d 392, 395 (1990).
Estoppel does not require "proof that the representation [was]
false or that the employer intend[ed] to induce reliance. The
employee's case is made if the 'representation . . . did in fact
induce the [employee] to refrain from filing [a claim].'" Cibula
v. Allied Fibers & Plastics, 14 Va. App. 319, 325, 416 S.E.2d
708, 711 (1992) (quoting Stuart Circle Hosp. v. Alderson, 223 Va.
205, 208, 288 S.E.2d 445, 446 (1982)). However, an employer has
no affirmative duty under the Act to inform an injured employee
of the need to file a claim with the commission within the
statutory period, see Alderson, 223 Va. at 208, 288 S.E.2d at
446, and it is well settled that an employer is not estopped as a
matter of law from relying on the limitation period merely
because it voluntarily paid a claimant's medical bills. See id.
at 209, 288 S.E.2d at 447; Bowden v. Newport News Shipbuilding &
Dry Dock Co., 11 Va. App. 683, 686-87, 401 S.E.2d 884, 886
(1991).
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The commission found that claimant failed to prove he relied
on any action or representation of the employer. In so doing,
the commission noted claimant did not testify that he relied on
any payments by the employer and did not offer any explanation as
to why he allowed the statute of limitations to expire other than
that he thought his injury was a "strain" and that he was not
"hurt." The commission found that the only evidence bearing on
the estoppel issue was the employer's computer note indicating
acceptance of the injury as compensable and that nothing
indicated claimant's awareness of that note. 4 Because credible
evidence supports these findings, we are bound by them. See Code
§ 65.2-706; Caskey v. Dan River Mills, Inc., 225 Va. 405, 411,
302 S.E.2d 507, 510 (1983). "Consequently, unless we can
conclude, as a matter of law, that other evidence sustains
[claimant's] burden of proving that representations made by the
employer induced [claimant] to refrain from filing a claim with
the commission, we must affirm the [decision]." See Cheski v.
Arlington County Pub. Schs., 16 Va. App. 936, 939, 434 S.E.2d
353, 355 (1993).
Here, as in Cheski, claimant contends that employer's
"course of conduct" induced him not to file a claim with the
commission. See id. The course of conduct he cites consists of
4
In fact, that note was not even created until after the
statute of limitations had expired and could not, therefore, have
induced claimant to refrain from filing a timely claim, even if
he had been aware of its existence.
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employer's (1) extensive exercise of control over his medical
treatment, including offering him a panel of physicians,
directing him to return to that panel physician after
Dr. Richmond had recommended surgery, and hiring rehabilitation
nurse Karen Gibson to oversee claimant's care; (2) issuance of
voluntary workers' compensation payments beginning June 6, 1995,
and continuing through October 8, 1995, including a computer
notation that the claim was accepted; (3) failure to file a
memorandum of agreement for those voluntary payments; and (4)
alleged failure to file a first report of injury when claimant's
medical bills exceeded $1,000.
We hold that employer's conduct in "controlling" claimant's
medical treatment did not, as a matter of law, induce claimant to
believe he was not required to file a claim. Ott did not contact
rehabilitation nurse Gibson about claimant's case until June 30,
1995, after the statute of limitations had expired on June 28,
1995. Gibson's involvement, therefore, could not have induced
claimant to refrain from filing a timely claim. Moreover, as we
held in Cheski, an employer's actions in requiring a claimant to
use a panel physician, seek approval before changing physicians,
and participate in vocational rehabilitation assessments "are no
more than those one would expect from an employer conscientiously
complying with the [Act]. They did not, as a matter of law,
induce the employee to believe that [he] did not need to file a
claim with the commission." Id. at 939-40, 434 S.E.2d at 356.
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Similarly, we hold employer's notation that the claim was
accepted and voluntary payment of compensation beginning June 6,
1995, did not induce claimant to refrain from filing a timely
claim. As found by the commission and supported by the record,
no evidence indicates claimant was aware that employer was
recognizing his claim as compensable under the Act or that any
checks he was receiving were denominated workers' compensation
benefits rather than short term disability payments. In
addition, and more importantly, neither of these events occurred
until after the statute of limitations had expired on June 28,
1995. Employer's notation of compensability was not made until
July 12, 1995, and its first payment of workers' compensation to
claimant--covering the period from June 6 to July 16, 1995--was
not issued until July 18, 1995.
The record contains no evidence that employer's failure to
file a memorandum of agreement or formal first report of injury
induced claimant to refrain from filing a timely claim. As set
out above, employer did not initially accept the flare-up as
compensable and did not begin voluntary payments of compensation
until after the statute of limitations expired; therefore,
employer's duty to file a memorandum of agreement evidencing
those payments also did not arise until after the expiration of
the statute of limitations. See Code § 65.2-701.
Here, the record contains no indication that employer had a
duty to file a formal first report of injury before the statute
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of limitations expired. Employer filed a Form 45A report of
minor injury, and the duty to file a formal First Report arises
only when the medical expenses paid by employer for claimant
exceed $1,000. See Code § 65.2-900; VWC (commission) Form Nos.
3, 45A (rev. 10/1/91). The evidence does not prove that medical
costs exceeded $1,000 before the statute expired. 5 Moreover,
although employer's filing of a memorandum of agreement or first
report may have triggered the mailing of correspondence from the
commission regarding claim filing, nothing in the record
indicates that employer's failure to file either of these
documents induced claimant to refrain from filing a claim. See
Bristol Newspapers, Inc. v. Shaffer, 16 Va. App. 703, 708, 432
S.E.2d 23, 26 (1993) (holding, under doctrine of estoppel, that
mere "failure by the employer to report the accident in
accordance with Code § 65.2-900 neither tolls the statute [of
limitations] nor precludes the defense [of its expiration]"); see
also Alderson, 223 Va. at 208, 288 S.E.2d at 447 (rejecting
allegation that employer's failure to notify commission of
payments, which would have triggered commission's notice to her
to file claim, proved estoppel).
Finally, the record supports the commission's finding that
employer's filing of Form 45A caused the commission to send a
5
Prior to that date, claimant's only outside medical
treatment covered by workers' compensation involved two visits to
treating physician Burns and one session with a physical
therapist.
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workers' compensation guide to claimant. Although claimant could
not recall with certainty whether he received it, nothing in the
record shows that he did not. Code § 65.2-201(D) requires the
commission to (1) publish a "guide . . . which informs an injured
employee of his rights under [the Act]," and (2) provide a copy
of the guide to an employee when it receives notice of his
accident. Here, the commission acknowledged this procedure and
confirmed that its records indicated a guide was sent to claimant
at his correct mailing address and was not returned. See Avery
v. County Sch. Bd., 192 Va. 329, 334-35, 64 S.E.2d 767, 771
(1951) (noting presumption that clerk of trial court properly
performs official duties imposed by statute or rule of court);
Villwock v. Insurance Co. of N. Am., 22 Va. App. 127, 134 n.4,
468 S.E.2d 130, 134 n.4 (1996) (discussing presumption that
correspondence properly mailed is received by addressee and
noting that denial of receipt by addressee raises issue for fact
finder).
Therefore, we hold that credible evidence supports the
commission's finding that employer's actions did not induce
claimant to refrain from filing a timely claim for compensation.
Imposition
The doctrine of imposition also does not apply to toll the
statute of limitations in this case. Imposition "'empowers the
commission in appropriate cases to render decisions based on
justice shown by the total circumstances even though no fraud,
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mistake or concealment has been shown.'" Odom v. Red Lobster
# 235, 20 Va. App. 228, 234, 456 S.E.2d 140, 143 (1995) (quoting
Avon Prods., Inc. v. Ross, 14 Va. App. 1, 7, 415 S.E.2d 225, 228
(1992)). "The doctrine focuses on an employer's or the
commission's use of superior knowledge or of experience with the
Workers' Compensation Act or use of economic leverage, which
results in an unjust deprivation to the employee of benefits
warranted under the Act." Butler v. City of Va. Beach, 22 Va.
App. 601, 605, 471 S.E.2d 830, 832 (1996).
Whether an employee has received a "blue letter" or guide
outlining commission procedures and the claim filing requirement
is one circumstance to be considered in evaluating the totality
of the circumstances. See Odom, 20 Va. App. at 235, 456 S.E.2d
at 143. However, imposition, like equitable estoppel, "does not
apply where a carrier's or employer's [actions] are consistent
with an endeavor to comply with the Act." Id. at 234, 456 S.E.2d
at 143 (citing Cheski, 16 Va. App. at 940, 434 S.E.2d at 356).
Such actions include:
(1) telling [claimant] that certain
documents--a report of the accident, an
acknowledgement that [claimant] received a
list of approved panel physicians, and the
employer's first report of accident--would be
filed with the commission, (2) requiring
[claimant] to use a panel physician, (3)
requiring her to seek approval before
changing physicians, (4) requiring her to
participate in vocational rehabilitation
assessments, . . . and (7) recognizing that
she was entitled to workers' compensation
benefits.
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Cheski, 16 Va. App. at 939-40, 434 S.E.2d at 355.
Here, the acts of employer which fail to permit application
of the doctrine of estoppel also do not permit application of the
doctrine of imposition. Although expiration of the statute of
limitations on this claim was unfortunate, it did not result from
employer's or the commission's use of superior knowledge or
economic leverage. To create an exception to the bar of the
statute of limitations under circumstances such as these would,
in effect, allow the exception to swallow the rule.
For these reasons, we hold that neither the tolling
provisions of Code § 65.2-602 nor the doctrines of equitable
estoppel or imposition apply to circumvent expiration of the
statute of limitations in this case. Accordingly, we affirm the
commission's denial of benefits.
Affirmed.
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