Gerald Albert Adkins v. Nabisco Biscuit ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia
GERALD ALBERT ADKINS
v. Record No. 1803-96-2 MEMORANDUM OPINION * BY
JUDGE MARVIN F. COLE
NABISCO BISCUIT JULY 29, 1997
FROM THE VIRGINIA
WORKERS' COMPENSATION COMMISSION
Brian J. Cusce for appellant.
P. Dawn Bishop (Sands, Anderson, Marks &
Miller, on brief), for appellee.
Gerald A. Adkins appeals from a decision of the Workers'
Compensation Commission (commission) denying his application for
compensation benefits on the ground that Adkins did not file the
application before the applicable statute of limitations expired.
Adkins contends that the commission erred in finding that (1)
Code § 65.2-602 did not toll the applicable statute of
limitations; (2) the doctrine of equitable estoppel did not apply
to prevent Nabisco Biscuit (employer) from asserting the statute
of limitations; (3) employer's conduct did not constitute an
imposition on the commission and Adkins; and (4) a de facto award
did not exist. Finding no error, we affirm the commission's
decision.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
So viewed, the evidence established that on February 2,
1995, Adkins filed a claim with the commission alleging an injury
by accident arising out of and in the course of his employment on
December 10, 1992. Adkins sought an award of temporary total
disability benefits commencing January 14, 1993 and continuing.
At the October 2, 1995 hearing, employer stipulated to the
compensability of Adkins' accident, but defended against his
application on the ground that it was barred by the two-year
statute of limitations contained in Code § 65.2-601.
As of December 1992, Adkins had worked for employer for
nineteen years. On December 10, 1992, Adkins, a machine captain,
slipped on steps and sustained a back injury. He immediately
reported the accident to his supervisor, who sent him to the
company nurse, Cecilia Craft. Craft completed an accident
report, and Adkins returned to work. Adkins worked until January
14, 1993, when he was no longer able to work due to the injury.
Adkins again saw Craft and a company doctor. Craft referred
Adkins to Dr. Anthony G. Velo, an orthopedic surgeon. On March
1, 1993, Dr. Velo performed surgery on Adkins' back to remove a
ruptured disc. Adkins returned to work on December 20, 1993 and
worked until February 7, 1994, when he was again unable to work
due to the injury.
Adkins testified that Jeanne Dyer, a nurse employed by
employer's insurer, assisted him with his physicians and told him
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that "anything I needed, she would take care of it. . . . She
always went with me to the doctor and made my doctors
appointments and called work." Adkins saw Drs. E. Claiborne Irby
and George Gruner at Dyer's request.
Employer filed its first report of accident on February 2,
1993. The commission sent a "blue letter," dated February 9,
1993, to Adkins addressed to him at Route 2, Box 125, Providence
Forge, Virginia. Adkins denied receiving this "blue letter."
The evidence proved that in November 1992, the postal service
changed his mailing address from Route 2, Box 125, Providence
Forge, Virginia to 4440 North Courthouse Road, Providence Forge,
Virginia. Adkins admitted that he did not physically move his
residence and testified that he continued to receive mail
addressed to him at both the former and current mailing address.
Apparently, either Adkins or employer later filed a minor
injury claim relative to an injury incurred by Adkins on January
24, 1994. As a result of this filing, the commission mailed
another Workers' Compensation Guide to Adkins on February 23,
1994. 1 Adkins admitted that he received the guide, but he did
not read it. Rather, he placed it in his dresser drawer. He
stated that he did not think he had to do anything in regard to
his claim because "I'd never done anything before on my cases.
1
The commission cited to this January 24, 1994 minor claim
in its opinion. There is no evidence of this claim in the
record. However, the guide, which is in the record, contains an
address label reflecting a date of "1/24/94."
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It was always taken care of." 2
With respect to the December 10, 1992 injury by accident,
employer paid Adkins weekly benefits for various periods from
January 21, 1993 through January 15, 1995. Employer also paid
Adkins cost of living increases. Adkins stated that he did not
know he needed to file a claim with the commission nor did he
know of any time limits on filing a claim. Adkins knew that Jon
Hall was the insurance adjuster for his claim, but he had very
little contact with Hall.
Dyer testified that her job was to facilitate a resolution
of the medical aspects of Adkins' case, essentially by acting as
a liaison between the insurance company, Adkins' physicians, and
Adkins. Dyer met with Adkins on numerous occasions. She told
Adkins that her only job was to help him with the medical aspects
of his case. Dyer admitted asking Adkins at their first meeting
if he was receiving checks. Dyer provided the insurance company
with periodic reports concerning Adkins' progress from a medical
standpoint.
2
Adkins had received workers' compensation benefits before
the December 10, 1992 accident for other work-related injuries.
The commission's records reflected that two previous files were
generated for Adkins for work injuries sustained in 1978 and
1984. "Blue letters" were sent to him in both instances. The
blue letter and the workers' compensation guide spell out the
time limit for filing a claim. With respect to these previous
injuries, Adkins signed memoranda of agreement on October 23,
1978 and December 26, 1984. Adkins stated that even though he
signed the agreements, he did not understand why he signed them
nor did he know that employer filed them with the commission.
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The deputy commissioner dismissed Adkins' application,
finding "that there had been no prejudice, no misrepresentation,
and no evoked detrimental reliance, and because no prejudice
exists, the two-year statute of limitations ran on December 10,
1994. This matter was filed on February 2, 1995, beyond the
two-year statute of limitations."
The full commission affirmed the deputy's decision, finding
that the statute of limitations was not tolled pursuant to Code
§ 65.2-602 because Adkins failed to prove prejudice. The
commission found that Adkins had notice of the filing requirement
because he received a guide and a blue letter within fifteen
months of his injury, noting that the fact that the guide
pertained to a subsequent minor claim was of no moment because
Adkins' rights and responsibilities were the same for either
claim. Adkins admitted receiving the guide within fifteen months
of his injury, leaving "some eight months" within which to file a
timely claim. The commission also found that Adkins had
sustained two previous workers' compensation injuries for which
the commission had sent blue letters.
The commission held that Adkins did not establish equitable
estoppel. The commission found that Dyer neither represented to
Adkins that his claim had been filed nor indicated that he did
not need to protect his claim. The commission also found that
employer's voluntary payment of compensation benefits and cost of
living adjustments did not establish an estoppel. Employer's
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actions were no more than those expected from an employer
complying with the Act. The commission found that employer's
voluntary payment did not create a de facto award. Finally, the
commission found that the doctrine of imposition did not apply
because Adkins did not rely upon any actions of the
employer/carrier or the commission, and employer's actions taken
as a whole were consistent with an endeavor to comply with the
Act.
I.
In pertinent part, Code § 65.2-602 states as follows:
In any case where an employer has received
notice of an accident resulting in
compensable injury to an employee as required
by § 65.2-600, and whether or not an award
has been entered, such employer nevertheless
has paid compensation or wages to such
employee during incapacity for work as
defined in § 65.2-500 or § 65.2-502,
resulting from such injury or the employer
has failed to file the report of said
accident with the Virginia Workers'
Compensation Commission as required by
§ 65.2-900, and such conduct of the employer
has operated to prejudice the rights of such
employee with respect to the filing of a
claim prior to expiration of a statute of
limitations otherwise applicable, such
statute shall be tolled for the duration of
such payment or, as the case may be, until
the employer files the first report of
accident required by § 65.2-900. For
purposes of this section, such rights of an
employee shall be deemed not prejudiced if
his employer has filed the first report of
accident as required by § 65.2-900 or he has
received after the accident a workers'
compensation guide described in § 65.2-201 or
a notice in substantially the . . . form
[stated in this statute].
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Dissecting Code § 65.2-602 down to its plain meaning, we
find that in order to toll the statute of limitations, an
employee must prove the existence of certain conditions. First,
an employee must show that the employer received notice of the
accident as required by Code § 65.2-600, and that the employer
either has paid wages or compensation to the employee during
incapacity from work, with or without an award or has failed to
file an Employer's First Report of Accident as required by Code
§ 65.2-900. Second, an employee must prove that either the
employer's payment of wages or compensation or its failure to
file the first report of accident has operated to prejudice the
employee's rights with respect to filing a claim prior to the
expiration of the statute of limitations. If an employee proves
the existence of these conditions, the statute of limitations
shall be tolled for the duration of the employer's payment of
compensation or wages during an employee's incapacity from work
or until the employer files an Employer's First Report of
Accident.
As noted in the provisions, The "rights of an employee . . .
to file a claim prior to the expiration of the statute of
limitations shall be deemed not prejudiced if his employer has
filed . . . the first report of accident as required by
§ 65.2-900 or he has received after the accident a workers'
compensation guide described in § 65.2-201 or a notice in
substantially the . . . form [stated in this statute]." Thus, if
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either of these two circumstances occur, i.e., the employer files
the first report of accident as required by Code § 65.2-900 or
the employee receives a workers' compensation guide after the
accident, the statute provides for a per se absence of prejudice
with respect to the employee's right to file a timely claim.
Without a showing of prejudice, the tolling provisions of Code
§ 65.2-602 are not triggered.
Because Adkins received a workers' compensation guide after
his accident and before the statute of limitations expired, the
clear and unambiguous language of Code § 65.2-602 dictates that
his rights with respect to filing a timely claim were not
prejudiced as a matter of law. When he received the guide, he
had at least eight months within which to file a timely claim.
Yet, he failed to read the documents or act upon them. Absent
proof of prejudice, the elements necessary for tolling the
statute of limitations pursuant to Code § 65.2-602 were not met
and Adkins' rights expired on December 10, 1994. Therefore, the
commission did not err in ruling that the statute of limitations
was not tolled pursuant to Code § 65.2-602, and that Adkins
3
failed to file a timely claim.
II.
To prove estoppel, a claimant must show by clear, precise
3
As it is unnecessary to do so under the circumstances of
this case, we do not address how the statute would be applied in
a situation where an employee received the guide very close in
time to the expiration of the statute of limitations.
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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. Rose v. Red's Hitch &
Trailer Servs., Inc., 11 Va. App. 55, 59-60, 396 S.E.2d 392,
394-95 (1990). However, a claimant need not prove a false
representation, concealment of a material fact, or fraudulent
intent, in order to invoke the doctrine of equitable estoppel.
Cibula v. Allied Fibers & Plastics, 14 Va. App. 319, 324-25, 416
S.E.2d 708, 711 (1992), aff'd, 245 Va. 337, 428 S.E.2d 905(1993). In addition, it is well settled that employer is not
estopped as a matter of law from relying on the limitation period
provided by Code § 65.2-601 merely because it made voluntary
payments to a claimant. See Bowden v. Newport News Shipbuilding
& Dry Dock Co., 11 Va. App. 683, 686-87, 401 S.E.2d 884, 886
(1991).
The commission found no evidence that employer or its agents
made any representations which induced Adkins to refrain from
filing a timely claim. The record supports this finding.
Neither Dyer nor employer ever represented to Adkins that his
claim had been filed or that he did not need to do anything to
protect his rights. In addition, Adkins' evidence did not
establish an affirmative, deliberate effort by employer or its
agent to prejudice his right to file a claim within the
limitations period. Such an effort must be shown in order to
invoke the doctrine of equitable estoppel. Odom v. Red Lobster
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#235, 20 Va. App. 228, 233-34, 456 S.E.2d 140, 143 (1995).
Based upon this record, the commission did not err in ruling
that employer was not equitably estopped from relying upon the
statute of limitations.
III.
"'[I]mposition' . . . 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." Avon Products, Inc. v. Ross, 14 Va. App. 1, 7, 415
S.E.2d 225, 228 (1992). The commission correctly held that the
doctrine of imposition did not apply in this case because the
acts of the carrier and employer were consistent with an endeavor
to comply with the Act. Cheski v. Arlington County Pub. Schs.,
16 Va. App. 936, 940, 434 S.E.2d 353, 356 (1993). No evidence
established that Dyer told Adkins she would take care of anything
other than his medical needs. In addition, no evidence showed
improper conduct by the insurance adjuster. The facts merely
showed that Adkins was paid compensation and cost of living
increases and provided with a rehabilitation nurse to monitor his
medical status. The employer/carrier's actions in Odom, relied
upon by Adkins, went far beyond those of the employer in this
case.
IV.
The holding of National Linen Serv. v. McGuinn, 5 Va. App.
265, 362 S.E.2d 187 (1987), which applied to the issue of whether
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a claimant bore the burden of proving marketing efforts, is not
applicable to this case which deals with the jurisdictional issue
of whether a timely claim has been filed. Accordingly, the
commission did not err in finding that employer's voluntary
payments did not create a de facto award.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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