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STATUTE OF LIMITATIONS
See Estoppel, Imposition
Buenson Division, Aeronca, Inc. v. McCauley, 221 Va. 430, 434 n.2, 270 S.E.2d 734, 736 n.2 (1980) (noting that a new statute with retroactive applicability cannot act to revive a "dead claim"); Dan River, Inc. v. Adkins, 3 Va. App. 320, 326, 349 S.E.2d 667, 670 (1986) (citing Buenson Division, 221 Va. at 434 n.2, 270 S.E.2d at 736 n.2).
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 Virginia 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 requirement is 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 Pub. Schs., 16 Va. App. 936, 939-40, 434 S.E.2d 353, 355-56 (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, 16 Va. App. at 939-40, 434 S.E.2d at 355.
In Miller v. Locher Silica Corporation, 12 Va. App. 1213, 1216-17, 408 S.E.2d 566, 567-68 (1991), the court upheld the commission's dismissal of claimant’s claim for the occupational disease of silicosis on the ground that the commission lacked jurisdiction to consider the claim because it was not filed within five years of the last injurious exposure as required by Code Sec. 65.1-52(3) (now Code Sec. 65.2-406(A)(5)). In so holding, the court found that "Code Sec. 65.1-52[(3)] [now Code Sec. 65.2-406(A)(5)] does not contravene any of [the employee's] rights to due process and equal protection." Miller, 12 Va. App. at 1215, 408 S.E.2d at 567.
"The right to compensation under [the Workers' Compensation Act] shall be forever barred, unless a claim be filed with the Commission within two years after the accident." Code Sec. 65.2-601. This filing requirement is jurisdictional, serving more than a merely notice function. "The jurisdictional nature of a filing under Code Sec. 65.1-87 [now Sec. 65.2-601] is not affected by any notice that may previously have been given to the employer." If a claimant files an initial claim after the two year period, unless the statute of limitations was tolled or the doctrine of estoppel applied, claimant's application was time-barred. Garcia v. Mantech Int'l Corp., 2 Va. App. 749, 755, 347 S.E.2d 548, 551 (1986); see Leonard v. Arnold, 218 Va. 210,215, 237 S.E.2d 97, 100 (1977). Claims have been barred under this section when the wrong employer was named, Garcia, 2 Va. App. at 749, 347 S.E.2d at 548, and when an additional injury from the same accident was not stated in the application. Shawley v. Shea-Ball Constr. Co., 216 Va. 442, 219 S.E.2d 849(1975).
Claimant suffered a work-related accident wherein she sustained a compensable right shoulder injury. The claim of a right shoulder injury was accepted as compensable and the commission entered an award. Claimant underwent surgery on her right shoulder, but continued to have pain. She was ultimately diagnosed as having a cervical disc condition sustained in her compensable accident. Claimant, however, did not file a new claim with the commission within two years of the accident. Because claimant did not file a timely claim pursuant to Code Sec. 65.2-601 with respect to the cervical disc injury, a claim for the cervical injury, in and of itself, was barred by the applicable statute of limitations under the Supreme Court's ruling in Shawley v. Shea-Ball Construction Co., 216 Va. 442, 219 S.E.2d 849 (1975). Quality Inn Executive v. Zoila L. Umana, Record No. 1593-98-4 (June 15, 1999). WP Version.
In order to toll the limitations period pursuant to Code Sec. 65.2-602, claimant was required to prove that (1) the employer had notice of the accident; (2) the employer failed to file the First Report of Accident as required by Code Sec. 65.2-900; and (3) such conduct prejudiced claimant's rights with respect to filing a claim with the commission prior to the expiration of the two-year limitations period. Giant Food, Inc. v. Martin R. Roof, Record No. 2189-94-4 (May 9, 1995).
The evidence supported the commission's finding that the two year statute of limitations for filing claims, see Code Sec. 65.2-601, was tolled pursuant to Code Sec. 65.2-602. On June 18, 1993, claimant sustained an injury by accident to her back arising out of and in the course of her employment. Claimant was disabled for various periods through March 4, 1996. Employer received notice of the accident on the day of the accident and paid compensation benefits through September 10, 1994. Employer untimely filed the first report of accident on June 30, 1994 (See Code Sec. 65.2-900; 16 VAC 30-90-30(A) (requiring the first report to be filed within 10 days of the injury)) and the commission mailed the compensation guide to claimant on July 13, 1994. Claimant filed her claim for benefits in August 1995. Whenever claimant incurred medical expenses or lost time from work her supervisor told her "to file the workers' comp," which she understood to mean that she was required to complete and return the various paperwork to the insurance company. Claimant testified that she did not file a claim because "[she] was getting paid . . . [and because she] was seeing [her] physician all the time and [the Hospital was] paying [her] the whole time [she] was injured." In pertinent part Code Sec. 65.2-602 provides as follows: In any case where an employer has received notice of an accident resulting in compensable injury to an employee . . . , and whether or not an award has been entered, such employer nevertheless has paid compensation or wages to such employee during incapacity for work . . . or the employer has failed to file the report of said accident with the . . . Commission as required by [Code] Sec. 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 . . . or [the employee] has received after the accident a workers' compensation guide . . . . "Thus, notice, specified conduct and prejudice are the 'three criteria' that must be established by [an employee] seeking relief pursuant to . . . [the] statute." Bristol Newspapers, Inc. v. Shaffer, 16 Va. App. 703, 706, 432 S.E.2d 23, 25 (1993). Claimant did not file her claim earlier because she had completed and sent the paperwork to the Hospital that her supervisors told her was necessary "to file the workers' comp." Evidence supported the finding that claimant was prejudiced and that the statute was tolled until the Hospital filed its first report of accident. Furthermore, as held in Commonwealth Medical Institute v. Stop-Headstart Program, 18 Va. App. 461, 453 S.E.2d 566 (1994), claimant's "receipt of the guide did not retrospectively eliminate the tolling of the statute of limitations which had already occurred." Id. at 463, 453 S.E.2d at 566. Fairfax Hospital and Inova Health v. Post, Record No. 1012-99-4 (January 27, 2000). WP Version.
Section 65.2-708 is not a statute of limitations in the ordinary sense. See Binswanger Glass Company v. Wallace, 214 Va. 70, 197 S.E.2d 191 (1973). Rather Sec. 65.2-708 provides that a change in condition entitling the claimant to additional disability benefits must occur within two years from the last day for which compensation was paid pursuant to an award.
Code Sec. 65.2-708 requires that claimant's application alleging a change in condition be filed within twenty-four months of the last day for which compensation was paid. Code Sec. 65.2-708 (A) plainly and unambiguously provides that an award shall not be reviewed "after twenty-four months from the last day for which compensation was paid," not twenty-four months from the last day on which compensation was received. Gladys Phyllis Rose Shelton v. University of Virginia, Record No. 1498-95-2 (November 7, 1995)
Code Sec. 65.2-708, which governs the filing of change-in-condition applications, requires that the application be filed within twenty-four months from the last date for which compensation was paid pursuant to an award. Code Sec. 65.2-708(C) provides the following tolling provision: All wages paid, for a period not exceeding twenty-four consecutive months, to an employee (i) who is physically unable to return to his pre-injury work due to a compensable injury and (ii) who is provided work within his capacity at a wage equal to or greater than his pre-injury wage, shall be considered compensation. This tolling provision was designed to prevent employers from lulling partially disabled workers into a false sense of security during this two year period by providing employees light duty work at their pre-injury wage for two years and then terminating the employee without liability for future disability benefits. Scott v. Scott, 16 Va. App. 815, 819, 433 S.E.2d 259, 262 (1993). Thus, a partially disabled employee who meets the conditions outlined in parts (i) and (ii) "is afforded an additional twenty-four months before the statute of limitations . . . begins to run." Greene v. Gwaltney of Smithfield, Inc., 13 Va. App. 486, 492, 413 S.E.2d 650, 654 (1992). See also Mitchell v. Phoenix Dev. Corp., VWC No. 147-04-73 (June 28, 1994) (tolling provision did not apply where employer had no knowledge of claimant's restrictions). Code Sec. 65.2-708(C) applies to a light duty or selective employment situation. If an employee, despite restrictions, can perform his or her pre-injury work for pre-injury wages, those wages are not considered compensation under the tolling provision. Hanh Nguyen v. Fairfax County Board of Supervisors, Record No. 3164-96-4 (December 2, 1997).
Claimant was injured in 1988 and was awarded compensation benefits for various periods, until, in 1991, claimant was given selective employment by the employer at a wage equal to or greater than his pre-injury average weekly wage. More than two years after compensation benefits ended claimant applied for and was awarded permanent partial disability benefits for approximately four months in 1994. In 1997 claimant's doctor took him out of work for about one month and he sought temporary total benefits. The Court of Appeals held the VWC properly found the claim was time barred. Claimant did not file his May 15, 1997 change-in-condition application within twenty-four months from June 5, 1994, the last date for which compensation was paid pursuant to an award. Therefore, unless the tolling provision applied to extend the limitations period beyond May 15, 1997, claimant's application was untimely. Code Sec. 65.2-708(C) delayed the start of the two-year limitations period contained in Code Sec. 65.2-708(A) while employer provided claimant light-duty work and paid him equal to or more than his pre-injury wage for a period not exceeding twenty-four consecutive months. The plain and unambiguous language of this code section tolled the limitations period from April 7, 1991, the date claimant returned to light-duty work provided by employer at a wage equal to or greater than his pre-injury wage, through April 7, 1993, twenty-four consecutive months later. Thus, the tolling period expired before claimant filed his May 15, 1997 change-in-condition application. The Court of Appeals found no support in the plain language of Code Sec. 65.2-708(C) or the case law for claimant's assertion that the commission erred in refusing to find that the twenty-four month tolling period began to run on June 5, 1994, the date claimant was last paid permanent partial disability benefits. Daniel W. Phelps v. Safeway Stores, Inc., Record No. 1246-98-4 (February 16, 1999).
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).Code Sec. 65.2-65.2-708 (A) required that a change-in-condition application be filed within twenty-four months from the last day for which compensation was paid. It is undisputed that claimant returned to work October 9, 1995, and did not file her change-in-condition application until November 24, 1997. Accordingly, unless the tolling provision contained in Code Sec. 65.2-708 (C) applied to extend the limitations period beyond October 8, 1997, the commission correctly determined that the claim was not timely filed. Code Sec. 65.2-708 (C) provides that "[a]ll wages paid, for a period not exceeding twenty-four consecutive months, to an employee (i) who is physically unable to return to [her] pre-injury work due to a compensable injury and (ii) who is provided work within his capacity at a wage equal to or greater than his pre-injury wage, shall be considered compensation." The commission found that when claimant returned to work she "was able to perform fully the duties of her pre-injury position." The evidence supports that finding. No evidence proved that when claimant returned to her pre-injury work as a baker and a manager on October 9, 1995, that employer provided her selective employment; that her work-week was reduced from forty to thirty-five hours; or that she was unable to perform the duties of her pre-injury work. Dorah Maeda Ogolo v. Pie Gourmet, Ltd., Record No. 3011-98-4 (June 8, 1999). WP Version.
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).
Bristol Newspapers, Inc. v. Shaffer, 16 Va. App. 703, 708, 432 S.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).
Under Code Sec. 65.2-601, a claimant who receives medical benefits but who fails to demonstrate disability during the two-year period may not be awarded temporary total disability benefits. See Mayberry v. Alcoa Bldg. Prods., 18 Va. App. 18, 441 S.E.2d 349 (1994)."A claim for compensation must be filed with the commission within two years after the accident or the claim shall be forever barred." Mayberry v. Alcoa Bldg. Prods., 18 Va. App. 18, 20, 441 S.E.2d 349, 350 (1994). Because the commission never entered an award for work incapacity, claimant's application cannot be treated as an application for a change in condition. See id. Claimant's application seeking an award of total disability benefits was required to be filed within two years after his accident. See id. at 20-21, 441 S.E.2d at 350. It was not. Thus, the record clearly supports the commission's finding that claimant's claim was time-barred. Yousef M. Alkadi v. Arlington (County of) School Board, Record No. 1394-98-4 (November 24, 1998).
The commission did not erred in finding that claimant failed to prove that he sustained disability from work causally related to his compensable September 13, 1996 injury by accident within two years from the date of that accident. Before September 24, 1998, no physician limited claimant's ability to work due to his compensable left foot injury. The medical evidence failed to show that claimant incurred any disability causally related to his compensable left foot injury until more than two years after the date of his compensable industrial accident. Mohammed S. Mubaidin v. Holiday Inn Alexandria, Record No. 1963-99-4 (December 28, 1999). WP Version.
The Workers' Compensation Act provides that claimants must file for compensation for occupational diseases within "two years after a diagnosis . . . is first communicated to the employee." Code Sec. 65.2-406(A)(5). The statute "does not require that an employee receive from a physician a communication that his disease is work related." City of Alexandria v. Cronin, 20 Va. App. 503, 508, 458 S.E.2d 314, 317 (1995), aff'd, 252 Va. 1, 471 S.E.2d 184 (1996). It requires only that he "learn that the condition is an occupational disease for which compensation maybe awarded." Id. at 509, 458 S.E.2d at 317. "Whether a diagnosis of an occupational disease was communicated and when the communication occurred are factual determinations." Uninsured Employer's Fund v. Mounts, 24 Va. App. 550, 558, 484 S.E.2d 140, 144 (1997) (citing Roller v. Basic Constr. Co., 238 Va. 321, 329, 384 S.E.2d 323, 326 (1989)); City of Richmond Police Dep't v. Bass, 26 Va. App. 121, 131-32, 493 S.E.2d 661, 666 (1997) .
Where credible evidence established that as early as October 1990, claimant knew that her contact dermatitis was a disease that might be caused by her wearing latex gloves at work, and claimant at that time, took immediate precautions to avoid exposure to latex gloves at work, but did not file her claim until 1997, her claim seeking an award of compensation for an occupational disease of contact dermatitis was not timely filed. Kathryne Smith v. Fairfax Hospital and Inova Health System Foundation, Inc., Record No. 1681-98-4 (Ct. of Appeals, December 8, 1998).
Code Sec. 8.01-246 did not apply because the rehabilitation Center and claimant sought payment of medical expenses incurred for treatment rendered pursuant to a commission award. The application was grounded in the commission's award. The dispute did not involve a common law action founded upon an express or implied unwritten contract. The dispute concerned an employer's duty to pay causally related medical benefits awarded to claimant by the commission. Under these circumstances, the commission correctly ruled that the three-year statute of limitations contained in Code Sec. 8.01-246 did not apply to bar the Center's application. Combustion Engineering, Inc. v. Ernest R. Lafon, Jr. and Center for Rehabilitative Medicine, Record No. 2327-95-3 (April 9, 1996).
The commission correctly concluded that the existence of the specific tolling provisions contained in Code Secs. 65.2-528 and 65.2-602 precluded it from applying Code Sec. 8.01-229(A)(1), a statute of general application, to toll the limitations period in this case. See County of Fairfax v. Century Concrete Servs., Inc., 254 Va. 423, 427, 492 S.E.2d 648, 650 (1997). In addition, the express language of Code Sec. 8.01-229(A)(1) renders it inapplicable to the facts of this case. the commission did not err in concluding that "incarceration is not an 'incapacity' tolling the statute of limitations under Va. Code Ann. Sec. 65.2-528." As the commission correctly acknowledged, "an incarcerated person may still file legal documents, including a change in condition application in his own right, without the appointment of a guardian, trustee, or conservator." See Dunn v. Terry, 216 Va. 234, 239, 217 S.E.2d 849, 854 (1975). Lloyd Raymond Whetzel v. Waste Management of Virginia, Record No. 0352-99-3 (August 10, 1999). WP Version.
The Workers' Compensation Commission did not err in finding that claimant's claim for permanent partial disability benefits was barred by the the thirty-six month mandate of Code Sec. 65.2-708(A)(i). Code Sec. 65.2-708(A)(i) plainly and unambiguously provides that "thirty-six months from the last day for which compensation was paid shall be allowed for the filing of claims payable under Sec. 65.2-503." The date for which compensation was last paid was either February 2, 1995 or August 5, 1995. The statute does not specify thirty-six months from the last day on which compensation was paid. As the commission ruled, whether February 2, 1995, or August 5, 1995, the thirty-six month limitations period expired before claimant filed her application on October 9, 1998. Because claimant filed her application after the applicable limitations period had expired, the commission did not err in dismissing the application. Janie E. Holman v. Southwestern Virginia Mental, Record No. 1516-99-3 (November 9, 1999). WP Version.
Issue of Subject Matter Jurisdiction Raised at Any Time. Subsequently discovered injuries. The commission lacked jurisdiction to award benefits because claimant failed timely to file a claim for injuries to his neck and back arising from an industrial accident of October 22, 1979. Following the accident the only injuries included in the Memorandum of Agreement executed by the parties in 1979 were to claimant's shoulder and forehead. Claimant filed no claim for benefits for back, neck, arm or leg injuries until more than fifteen years after the compensable accident. Claimant contends the back and neck injuries occurred simultaneously with, rather than subsequent to, the accepted shoulder and forehead injuries. This case is distinguishable from the case in which an employee timely files a claim for all injuries incurred in an industrial accident but subsequently develops additional injuries as a "natural consequence" of the industrial accident. See Bartholow Drywall Co. v. Hill, 12 Va. App. 790, 793-94, 407 S.E.2d 1, 3 (1991). "The right to compensation under [the Workers' Compensation Act] shall be forever barred, unless a claim be filed with the Commission within two years after the accident." Code Sec. 65.1-87, 1975 Va. Acts ch. 471; see Barksdale v. H.O. Engen, Inc., 218 Va. 496, 499, 237 S.E.2d 794, 796-97 (1977) (holding that statute of limitations is part of "substantive right to recover" under Act and, therefore, applicable statute of limitations is one in effect when injury occurs). "This is the notice which activates the right of the employee to compensation and which invokes the jurisdiction of the [Workers' Compensation Commission]." Binswanger Glass Co. v. Wallace, 214 Va. 70, 73, 197 S.E.2d 191, 194 (1973) (construing former Code Sec. 65.1-87). "'The right to compensation under the [workers'] compensation law is granted by statute, and in giving the right the legislature has full power to proscribe the time and manner of its exercise.'" Id. at 73, 197 S.E.2d at 193 (quoting Winston v. City of Richmond, 196 Va. 403, 407, 83 S.E.2d 728, 731 (1954)). It is the intent of Code Sec. 65.1-87 that, within the time prescribed by the section, an employee must assert against his employer any claim that he might have for any injury growing out of the accident. . . . Failure to give such notice within [the statutorily prescribed period] would seriously handicap the employer . . . in determining whether or not there was in fact an injury, the nature and extent thereof, and if related to the accident. The reason for the limitation . . . is a compelling one. Shawley v. Shea-Ball Constr. Co., 216 Va. 442, 446, 219 S.E.2d 849, 853 (1975) (emphases and footnote added) (construing former Code Sec. 65.1-87). Thus, in Shawley, the Court held that the commission lacked subject matter jurisdiction to award benefits for injury to the claimant's right ankle and back, where the only injuries for which he filed a timely claim were to his left ankle and right hip. See id. at 443-44, 219 S.E.2d at 851. The Court subsequently noted that "[j]urisdiction [ordinarily] cannot be conferred on the Commission by consent" and that it comes into being "when 'a claim [is] filed' within two years after the accident." Stuart Circle Hosp. v. Alderson, 223 Va. 205, 208-09, 288 S.E.2d 445, 447 (1982). Claimant filed no claim for benefits for back, neck, arm or leg injuries until more than fifteen years after the compensable accident. Accordingly, the commission lacked subject matter jurisdiction to award medical benefits for these injuries. Although the employer failed to raise the jurisdictional defense in an earlier proceeding in 1995, the doctrine of res judicata provides that "[a] valid, personal judgment on the merits in favor of [a party] bars relitigation of the [s]ame cause of action, or any part thereof which could have been litigated, between the same parties and their privies." Bates v. Devers, 214 Va. 667, 670-71, 202 S.E.2d 917, 920-21 (1974) (footnote omitted). However, "[f]or a prior judgment to preclude a subsequent action, . . . the court in the first proceeding must have had jurisdiction over the subject matter of the controversy and the precise issue upon which the judgment was rendered." Lloyd v. American Motor Inns, Inc., 231 Va. 269, 271, 343 S.E.2d 68, 69 (1986) (emphasis added). If a court lacks jurisdiction to render a judgment, the judgment has no preclusive effect. See id. Therefore, the doctrine of res judicata provides no exception to the well accepted principle of law that lack of subject matter jurisdiction may be raised in any court at any time and a judgment rendered by a court lacking subject matter jurisdiction is void ab initio. See Morrison v. Bestler, 239 Va. 166, 169-70, 387 S.E.2d 753, 755-56 (1990). Safeway Stores, Inc. v. Harold E. McGowan, Record No. 0895-99-2 (February 29, 2000). WP Version.
The commission did not err by holding that claimant's claim was not barred by the two-year statute of limitation under Code Sec. 65.2-708(A) or barred by the six-month limitation period under Code Sec. 65.2-510(C). On June 2, 1995, claimant suffered a compensable back injury and was awarded temporary total disability benefits from June 12, 1995 through February 5, 1996, when he returned to light-duty employment. After returning to work, claimant was awarded temporary partial disability, but then claimant unjustifiably refused light-duty work suitable to his capacity. After a hearing, the commission found that claimant had unjustifiably refused light-duty work suitable to his capacity and suspended his benefits pursuant to Code Sec. 65.2-510 as of April 21, 1996, the last day for which compensation had been paid. Claimant then became temporarily and totally disabled and was awarded temporary total benefits. Claimant concedes that he did not cure the refusal of selective employment within within six months from the date he refused selective employment, Code Sec. 65.2-510(C), by accepting the offered selective employment or marketing his residual capacity, see generally Herbert Bros., Inc. v. Jenkins, 14 Va. App. 715, 419 S.E.2d 283 (1992); Thompson v. Hampton Inst., 3 Va. App. 668, 353 S.E.2d 316 (1987). Code Sec. 65.2-510(C) is inapplicable to a change-in-condition application for temporary total disability. Code Sec. 65.2-708(A) requires that a change-in-condition application be filed within twenty-four months from the last day for which compensation was paid. A change in an employee's physical condition that is compensable under Code Sec. 65.2-708 includes, among certain other changes, any "'progression, deterioration, or aggravation'" of a previously compensated injury. Leonard v. Arnold, 218 Va. 210, 213-14, 237 S.E.2d 97, 99 (1977) (quoting 3 Arthur Larson, The Law of Workmen's Compensation, Sec. 81.31 (1976) (construing former Code Sec. 65.1-99)). However, "a new and separate accidental injury" may not be compensated as a change in condition of a previous injury. Id. at 214, 237 S.E.2d at 99. Thus, when an employee seeks compensation under Code Sec. 65.2-708, the employee must prove that the change in condition is "causally connected with the injury originally compensated." King's Market v. Porter, 227 Va. 478, 483, 317 S.E.2d 146, 148 (1984). The language of Code Sec. 65.2-708(A) providing that "[n]o such review shall be made after twenty-four months from the last day for which compensation was paid," is construed to mean that "the change in condition must occur within twenty-four months from the date compensation was last due or paid." Code Sec. 65.2-708(A); Armstrong Furniture v. Elder, 4 Va. App. 238, 241, 356 S.E.2d 614, 615 (1987) (construing former Code Sec. 65.1-99). A claimant is not required by Code Sec. 65.2-708(A) to produce the evidence prior to the expiration of the twenty-four month limitation, so long as the application alleged that a change in condition existed within the time of the filing. See Johnson v. Smith, 16 Va. App. 167, 169-70, 428 S.E.2d 508, 510 (1993); Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 678, 401 S.E.2d 213, 215 (1991). Employer does not dispute that claimant filed his application within twenty-four months from the date that he last received compensation. Employer argues, however, that claimant did not prove that he was totally disabled within the twenty-four month period because the doctors report was dated after 24 months. However, the notion that the date of a medical report or even a doctor's examination must be within this statutory period in order to prove the date of onset of disability is not reasonable. A doctor may conduct an examination and, together with a medical history, render an opinion as to the cause and date of onset of a disability. The June 16, 1998 office note by claimant's treating physician, stated that claimant had been totally disabled since October, 1997, when the doctor reported that a recent MRI revealed a small new recurrent herniated disc. Southwest VA Tire, Inc. v. Mark A. Bryant, Record No. 1492-99-3 (February 29, 2000). WP Version.
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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