Linda P. Williams v. Hoechst Celanese Corp. ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Koontz, Elder and Fitzpatrick
Argued at Salem, Virginia
LINDA P. WILLIAMS
MEMORANDUM OPINION * BY
v. Record No. 1871-94-3 JUDGE LARRY G. ELDER
JULY 5, 1995
HOECHST CELANESE CORP., ET AL.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Richard M. Thomas (Rider, Thomas, Cleaveland,
Ferris & Eakin, on brief), for appellant.
Frank Friedman (Richard D. Lucas; Abigail L.
Perkins; Woods, Rogers & Hazlegrove, P.L.C.,
on brief), for appellees.
Linda P. Williams (claimant) appeals the commission's
decision that her claim for benefits, which alleged a change in
condition, is barred by Code § 65.2-708's two-year statute of
limitations. Claimant contends that the commission erred in not
allowing her to present evidence to the commission and in not
entering an order nunc pro tunc in her favor. She contends that
the actions of Hoechst Celanese Corporation and Reliance National
Indemnity Company (collectively "employer") estopped employer
from raising a statute of limitations defense. We find no error
and affirm the commission's denial of benefits.
Claimant suffered a head injury on March 26, 1992. Employer
accepted the claim as compensable by means of a Memorandum of
Agreement signed by both parties in April of 1992. Pursuant to
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the Agreement, the commission entered an award on May 18, 1992,
and employer paid weekly benefits for April 3, 1992 to April 20,
1992. Claimant returned to work on April 21, 1992.
Claimant was disabled for a second time on May 29, 1993 and
did not return to work until August 23, 1993. The parties
executed a Supplemental Memorandum of Agreement calling for
payment of temporary total disability benefits beginning on
May 29, 1993. Claimant signed this Agreement on October 5, 1993,
after the insurer's representative signed it four days earlier,
although the original document was never forwarded to the
commission. Employer contends that these documents were
submitted to claimant and never returned, while claimant contends
that she returned the Supplemental Memorandum of Agreement to
employer. Employer voluntarily paid (at least partial)
compensation benefits for the period beginning May 29, 1993, as
evidenced by a check stub reflecting payment described as "work
comp for week of 8/7 - 8/13/93."
Claimant was disabled for a third time on November 28, 1993.
On June 7, 1994, claimant filed a claim for benefits, seeking
temporary total disability benefits for November 28, 1993 and
continuing. An assistant claims examiner for the commission
rejected the claim and notified claimant that she was last paid
compensation pursuant to an award through April 20, 1992.
Therefore the examiner concluded that claimant's claim, which was
filed on June 7, 1994, was untimely in light of Code § 65.2-708's
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two-year statute of limitations period. The full commission
reviewed the file and rejected claimant's application for
benefits on August 26, 1994.
Code § 65.2-708(A) specifically provides that the commission
may review any award on the ground of a change in condition,
except that "[n]o 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." The commission file
revealed that benefits were last paid pursuant to an award on
April 20, 1992. The commission found that because claimant's
June 7, 1994 application for change in condition was filed more
than twenty-four months after April 20, 1992, it was untimely.
First, we hold that the commission did not err in making its
determination without the benefit of oral argument. The
commission followed Rule 1.6 of the Workers' Compensation
Commission, which dictates the process by which it reviews a
decision rejecting a change in condition claim. 1 Rule 1.6(A)
states that "[a] request for review of a decision accepting or
rejecting a change in condition claim or application shall be
filed within 20 days from date of the decision. No oral argument
is permitted." (Emphasis added). Assistant Claims Examiner
Carol A. Carter rejected claimant's application on July 15, 1994,
1
The adoption of rules promulgated by the commission "is a
legislative act, and the enactment is binding in law upon the
parties and the commission as well." Sargent Elec. Co. v.
Woodall, 228 Va. 419, 424, 323 S.E.2d 102, 105 (1984).
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and again notified the parties twelve days later that "the
decision to reject the claim for benefits . . . remains
unchanged." Claimant filed her request for review on August 2,
1993, which was within twenty days from Carter's date of
decision.
As Rule 1.6(D) states, "[o]nly information contained in the
file at the time of the original decision along with the review
request and any response from the opposing party will be
considered. Additional evidence will not be accepted."
(Emphasis added). Pursuant to this directive, the full
commission properly limited claimant's ability to present oral
argument. Claimant correctly specified in her request for review
the allegations against employer; we see no reason why the
commission should have been required to receive additional
evidence on this matter by conducting an on-the-record, oral
hearing. 2
Second, we hold that the commission's decision was not
erroneous. Credible evidence supports the finding that
claimant's failure to file the requisite forms, rather than any
action of employer, caused the limitations period to expire. See
Goodyear Tire & Rubber Co. v. Watson, 219 Va. 830, 833, 252
S.E.2d 310, 312 (1979). Employer's actions in this case were
2
Assuming without deciding that claimant's procedural due
process rights were implicated by the commission's failure to
provide her with an evidentiary hearing, Rule 5A:18 bars us from
considering this issue, as it was not raised on appeal.
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"consistent with those of an employer endeavoring to comply with
the Act. Employer did not use superior knowledge and economic
power to achieve the payment of less benefits than required by
the Act." Cheski v. Arlington Co. Public Schools, 16 Va. App.
936, 940, 434 S.E.2d 353, 356 (1993). Evidence supports the fact
that employer never received the Supplemental Memorandum of
Agreement or the Memorandum of Fact (which claimant never signed)
from claimant and could therefore file neither of these documents
with the commission.
While this Court and the Supreme Court have recognized that
theories of fraud, concealment, "imposition," or "equitable
estoppel" may prevent employers from asserting that employees'
claims have not been timely filed, a complete review of the
record reveals that these theories are inapplicable in this case.
See Niblett v. Piedmont Aviation, Inc., 12 Va. App. 652, 405
S.E.2d 635 (1991)(recognizing fraud and concealment); Avon
Prods., Inc. v. Ross, 14 Va. App. 1, 415 S.E.2d 225(1992)(recognizing imposition); Cibula v. Allied Fibers &
Plastics, 14 Va. App. 319, 416 S.E.2d 708 (1992), aff'd, 245 Va.
337, 428 S.E.2d 905 (1993)(recognizing equitable estoppel).
For the foregoing reasons, we affirm the commission's
decision.
Affirmed.
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