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ESTOPPEL
See Imposition, Statute of Limitations
The doctrine of estoppel does not require a claimant to prove either that an employer's representation was false or that the employer made the representation with the intent to induce reliance. 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) (applying Stuart Circle Hosp. v. Alderson, 223 Va. 205, 208, 288 S.E.2d 445, 446-47 (1982)). Instead, a claimant makes a case for estoppel if he proves by clear, precise and unequivocal evidence that the employer made a representation or committed any act that did in fact induce the claimant to refrain from filing a claim within the limitations period. Id. Under this theory of estoppel, the essential elements are "a representation, reliance, a change of position, and detriment." T . . . v. T . . ., 216 Va. 867, 873, 224 S.E.2d 148, 152 (1976).
To prove estoppel, claimant was required to show by clear, precise and unequivocal evidence that she relied upon an act or statement of employer or its agent in refraining 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). The rule is well-settled that employer is not estopped from invoking the limitation period provided by Code Sec. 65.2-601 merely because it made voluntary payments to claimant. See Bowden v. Newport News Shipbuilding & Drydock Co., 11 Va. App. 683, 686-87, 401 S.E.2d 884, 886 (1991).
It is well settled that in successive actions between two parties, "a party will not be permitted to maintain inconsistent positions or to take a position in regard to a matter which is directly contrary to, or inconsistent with, one previously assumed by him." 28 Am. Jur. 2d, Estoppel and Waiver, Sec. 68 (1966); see also Brown v. Lawson Transp. Corp., 7 Va. App. 679, 681, 377 S.E.2d 136, 137 (1989). Whether employer is judicially estopped from asserting claimant is not its employee for purposes of entitlement under the Workers' Compensation Act (Act) is a mixed question of law and fact, fully reviewable by this Court. Sinclair v. Shelter Constr. Co., 23 Va. App. 154, 156-57, 474 S.E.2d 856, 857-58 (1996) (citing City of Waynesboro v. Harter, 1 Va. App. 265, 269, 337 S.E.2d 901, 903 (1985)). In defending the tort action in the circuit court based on claimant's status as "statutory employee," employer, a fortiori, postured itself as claimant's "statutory employer." As claimant's statutory employer, employer effectively conceded it is fully liable under the Act. Code Sec. 65.2-302; see, e.g., Sites Constr. Co. v. Harbeson, 16 Va. App. 835, 837, 434 S.E.2d 1, 2 (1993).
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). 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." Cheski v. Arlington County Pub. Schs., 16 Va. App. 936, 939-40, 434 S.E.2d 353, 356 (1993). 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, 432S.E.2d 23, 26 (1993) (holding, under doctrine of estoppel, that mere "failure by the employer to report the accident in accordance with Code Sec. 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). Aundra N. Jenkins v. Ford Motor Company, Record No. 0092-97-1 (May 5, 1998).
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 Sec. 65.2-701. Employer's filing of Form 45A caused the commission to send a 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 Sec. 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). Aundra N. Jenkins v. Ford Motor Company, Record No. 0092-97-1 (May 5, 1998).
Where the employer had agreed in writing, before the statute of limitations under Code Sec. 65.2-708 ran, to pay for the claimant's surgery and the related temporary total disability benefits, but then delayed approval of the surgery until the statutory period under Code Sec. 65.2-708 for claiming the related disability benefits had expired, the employer is estopped from relying upon the statute of limitations. Leslie Fernandes v. Handyman Services, Inc., Record No. 2182-94-4 (August 22, 1995).
The voluntary payment of compensation benefits to claimant for more than two years by the employer and its insurer did not constitute a de facto award. Employer voluntarily paid compensation benefits to claimant from November 29, 1995 through February 1998, but did not file a Memorandum of Agreement with the commission. On December 12, 1997, claimant filed a Claim for Benefits related to the November 29, 1995 incident. At the hearing, employer defended against the claim on the ground that claimant did not sustain a compensable injury by accident arising out of and in the course of her employment. Based upon this record, we find that the commission did not err in ruling that a de facto award did not exist and that "employer defended the compensability of this claim in good faith, and that the employer's voluntary payment of benefits [did] not prevent it from contesting the compensability of the underlying claim." Here, employer did nothing more than make voluntary payments to claimant. "An employer and carrier are not estopped from denying future payments merely because they had paid them in the past." Rucker v. Thrift Transfer, Inc., 1 Va. App. 417, 420, 339 S.E.2d 561, 562 (1986). National Linen Serv. v. McGuinn, 5 Va. App. 265, 362 S.E.2d 187 (1987) (en banc), and City of Roanoke v. Anderson, Rec. No. 2561-94-3 (Va. Ct. App. Dec. 19, 1995) are distinguishable. In McGuinn, unlike this case, the employer stipulated to the compensability of the claim. McGuinn, 5 Va. App. at 271, 362 S.E.2d at 190. Then, after accepting the claim as compensable, National Linen defended solely on the ground that claimant failed to market his residual work capacity. See id. at 268, 362 S.E.2d at 188. In this case, employer never accepted the claim as compensable, and in fact, challenged the compensability of the claim at the hearing. In Anderson, unlike this case, the employer accepted the claimant's condition as compensable before it stopped paying compensation benefits and challenged the causal relationship between the claimant's disability and his employment. Terri Lee Robinson v. Olan Mills, Record No. 0839-99-3 (September 7, 1999). WP Version.
§ 65.2-706.1 Estoppel effect of a Virginia Workers' Compensation Commission determination of employment status.
A final, unappealed award by the Virginia Workers' Compensation Commission that a person is or is not an employee of another for the purpose of obtaining jurisdiction shall estop either of said parties from asserting otherwise in any subsequent action between such parties upon the same claim or cause of action in a court of this Commonwealth.
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