Lawrence Alphonso Penn, Jr. v. J & J Southeast, etc ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Bumgardner and
Senior Judge Hodges
LAWRENCE ALPHONSO PENN, JR.
MEMORANDUM OPINION*
v. Record No. 1262-00-3 PER CURIAM
OCTOBER 3, 2000
J & J SOUTHEAST AND
GEORGIA PACIFIC CORPORATION
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Robert A. Williams; Williams, Luck &
Williams, on brief), for appellant.
(Robert M. Himmel; Patsy L. Mundy; Sands,
Anderson, Marks & Miller, on brief), for
appellees.
Lawrence Alphonso Penn, Jr. (claimant) contends that the
Workers' Compensation Commission erred in finding that his
application alleging a change in condition was barred by the
applicable statute of limitations contained in Code § 65.2-708.
Claimant asserts that (1) the action of the commission in
printing and distributing the pamphlet, "A Guide to Workers'
Compensation for Employees" was tantamount to equitable
estoppel; and (2) the commission erred in not applying the
principle of imposition. Upon reviewing the record and the
briefs of the parties, we conclude that this appeal is without
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
merit. Accordingly, we summarily affirm the commission's
decision. See Rule 5A:27.
The undisputed facts proved that on September 16, 1993,
claimant sustained an injury by accident to his lower back.
Employer accepted the claim as compensable and the parties
submitted memoranda of agreement, for which the commission
entered various awards for periods of temporary total and
partial disability. Claimant was last paid compensation
pursuant to an award on September 18, 1994.
On June 5, 1995, claimant filed a Claim for Benefits
seeking payment of lifetime medical benefits and "payment of
wages during related reoccurrence." By letter dated June 7,
1995, an Assistant Claims Examiner rejected the claim and
informed claimant that he had already been awarded lifetime
medical benefits and that the commission could not consider a
claim for anticipatory wage loss which may or may not occur in
the future. The Assistant Claims Examiner also advised claimant
as follows:
You have two years from the date you were
last paid compensation pursuant to an award
of the Commission to make a claim for
additional benefits. According to the
Commission's file, you were last paid
through September 18, 1994. Therefore, you
have until September 18, 1996 to make claim
for additional lost time.
No communication between claimant and the commission
occurred between June 1995 and June 1999. On June 28, 1999,
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claimant filed another Claim for Benefits asserting a change in
condition and seeking temporary total disability benefits for
the period from June 27, 1997 through July 7, 1997.
Claimant testified that after he returned to work in 1994,
he continued to have problems with his back and missed
intermittent days from work due to those problems. However, he
did not file a change-in-condition application before June 28,
1999 because of his interpretation of the following portion of
the Workers' Compensation Guide sent to him by the commission
shortly after his September 1993 accident:
If after returning to work, you are again
disabled, you must file a claim within two
years of the date for which you were last
paid compensation under an award. (This is
called a "change in condition.") Payment
only goes back 90 days from the date of
filing with the Commission.
Claimant, who has attended several years of college,
testified that he interpreted the term "disabled" to mean unable
to work for "[a] long term period," rather than on intermittent
days. He believed that his occasional absences from work did
not constitute changes in condition, and, therefore, he did not
file a claim within two years of the last day for which he was
paid compensation. He admitted that he did not confirm his
interpretation of the pamphlet by either contacting the
commission or consulting with an attorney.
The deputy commissioner denied the claim for failure to
file it within two years from the date that compensation was
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last paid as required by Code § 65.2-708. On review before the
full commission, claimant argued for reversal of the deputy
commissioner's decision on the ground that his June 28, 1999
claim alleging a change in condition should be allowed on the
ground that the workers' compensation pamphlet contained
misleading information upon which he relied, causing him not to
file a timely claim. Claimant also argued that Code § 65.2-708
created some type of fiduciary or special relationship between
the commission and claimant because it allowed the commission to
file a change-in-condition application on its own motion to
protect claimant's rights where he had sustained a change in
condition. The full commission rejected these arguments and
affirmed the deputy commissioner's decision.
On appeal to this Court, claimant argues that the printing
and distributing of the pamphlet by the commission was
tantamount to "equitable estoppel" and that the commission
should have applied the doctrine of "imposition" to save his
untimely claim. Claimant did not raise either of these
arguments before the deputy commissioner or in his written
statement filed on review before the full commission. Any
theory of recovery or argument not raised before the commission
will not be considered by this Court for the first time on
appeal. See Rule 5A:18; see also Kendrick v. Nationwide Homes,
Inc., 4 Va. App. 189, 192, 355 S.E.2d 347, 349 (1987).
Accordingly, we will not consider these arguments for the first
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time on appeal. Moreover, the record does not reflect any
reason to invoke the good cause or ends of justice exceptions to
Rule 5A:18.
For these reasons, we affirm the commission's decision.
Affirmed.
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