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IMPOSITION

See  Estoppel, Statute of Limitations

"Within the principles established by statutes and the decisions construing them, the commission has 'jurisdiction to do full and complete justice in every case.' From that principle has developed the concept known as 'imposition,' which empowers the commission in appropriate cases to render decisions based upon justice shown by the total circumstances even though no fraud, mistake or concealment has been shown." Odom v. Red Lobster, 20 Va. App. 228, 234, 456 S.E.2d 140, 143 (1995)(quoting Avon Products, Inc. v. Ross, 14 Va. App. 1, 7, 415 S.E.2d 225, 228 (1992)). When applying the doctrine of imposition, "[t]he issue is whether under the totality of the circumstances shown, the actions of the employer and its carrier created an imposition on the commission and the claimant which empowered the commission [to] 'do full and complete justice.'" Avon, 14 Va. App. at 8, 415 S.E.2d at 229.

"[T]he concept known as 'imposition' . . . 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." Odom v. Red Lobster, 20 Va. App. 228, 234, 456 S.E.2d 140, 143 (1995) (quoting Avon Products, Inc. v. Ross, 14 Va. App. 1, 7, 415 S.E.2d 225, 228 (1992)). The doctrine empowers the commission "to `do full and complete justice.'" Id. (quoting Avon, 14 Va. App. at 8, 415 S.E.2d at 229). The doctrine focuses on an employer's or the commission's use of superior knowledge of or 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. See John Driggs Co. v. Somers, 228 Va. 729, 734-35, 324 S.E.2d 694, 697 (1985); Odom, 20 Va. App. at 235, 456 S.E.2d at 143; Cheski v. Arlington County Public Schools, 16 Va. App. 936, 940, 434 S.E.2d 353, 356 (1993). Thus, this Court has found that the doctrine applies where, inter alia, the record shows a series of acts by the employer or the commission upon which a claimant naturally and reasonably relies to his or her detriment. Odom, 20 Va. App. at 235, 456 S.E.2d at 143.

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, 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 requirements 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 v. Arlington County Public Schools, 16 Va. App. 936, 940, 434 S.E.2d 353, 356 (1993)). 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. Cheski v. Arlington County Pub. Schs., 16 Va. App. 936, 939-40, 434 S.E.2d 353, 355 (1993). 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. Aundra N. Jenkins v. Ford Motor Company, Record No. 0092-97-1 (May 5, 1998).

The commission did not err in rejecting the application of the imposition doctrine. The doctrine of imposition "'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.'" Butler v. City of Va. Beach, 22 Va. App. 601, 605, 471 S.E.2d 830, 832 (1996) (quoting Odom v. Red Lobster No. 235, 20 Va. App. 228, 234, 456 S.E.2d 140, 143 (1995)) (additional citation omitted). The doctrine empowers the commission to "do full and complete justice," id., and it focuses on the employer's, or the commission's, use of superior knowledge of or experience with the Workers' Compensation Act ("Act"), or use of economic leverage, to unjustly deprive the employee of benefits warranted under the Act. See id. (citing John Driggs Co. v. Somers, 228 Va. 729, 734-35, 324 S.E.2d 694, 697 (1985); Odom, 20 Va. App. at 235, 456 S.E.2d at 143). In order for the doctrine to apply, the record must show "a series of acts by the employer or the commission upon which a claimant naturally and reasonably relies to his or her detriment." Butler, 22 Va. App. at 605, 471 S.E.2d at 832 (citing Odom, 20 Va. App. at 235, 456 S.E.2d at 143). The record in this case contains no such "series of acts by the employer or the commission upon which [claimant] naturally and reasonably relie[d] to his . . . detriment." Id. Claimant has pointed to no affirmative statements on the part of either the carrier or employer that led him to believe he need not file a claim. On the contrary, employer's nurse on at least one occasion asked him whether he had done so, and the accident report claimant initially completed provided him with the address and telephone number of the commission, which claimant promptly used to contact the commission. Moreover, when claimant's doctor told claimant that he ought to file a claim, claimant had almost two months remaining in the statutory period to file his claim. Claimant contacted the commission the same day his doctor advised him to do so, and on this occasion the representative told him he should, indeed, complete and submit a claim form. Claimant thus plainly had notice, almost two months before the expiry of the limitations period, that he needed to file a claim. He failed to do so. Compare Odom, 20 Va. App. at 232-33, 456 S.E.2d at 142 (claimant only received notice of need to file a claim after the limitations period had run). Although claimant claims that he received little or no encouragement to file a claim prior to the running of the limitations period, the evidence shows clearly that he was aware of the need to file a claim within a month of his injury and that he was told almost two months before the limitations period ran, by both his doctor and by an unnamed representative of the commission, that he had to file a claim. The commission also did not err in finding that although employer's carrier filed the required accident report, Form 45-A, nearly three months late, claimant's claim was not prejudiced, and the tolling provisions of Code Sec. 65.2-602 should not be applied to extend his filing period. Code Sec. 65.2-602 acts to toll the statute of limitations under the following circumstances: 1) where the employer pays wages or compensation for incapacity related to a work injury after receiving notice of injury; or 2) where the employer fails to timely file the accident report and that failure operates to prejudice the employee's claim. Cf. Bristol Newspapers, Inc. v. Shaffer, 16 Va. App. 703, 706-07, 432 S.E.2d 23, 25 (1993) (the three criteria of the tolling provision of Code Sec. 65.2-602 are notice to the employer of claimant's compensable injury, specified conduct by the employer, and prejudice to the claimant). The sole question on review is whether claimant was prejudiced by the late filing of Form 45-A. Claimant has failed to provide any evidence whatsoever demonstrating that the delay in the filing of Form 45-A adversely affected his claim. Daniel W. Page v. Lynchburg Foundry Company, Record No. 1490-99-3 (March 7, 2000). WP Version.

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