Opinion
Record No. 0611-92-4
January 19, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Douglas K.W. Landau (Abrams, Landau Ltd., on brief), for appellant.
Lynne S. Wurzburg (Stephen W. Robinson; McGuire, Woods, Battle Boothe, on brief), for appellees.
Present: Judges Baker, Coleman and Fitzpatrick
Argued at Alexandria, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Glynn E. Atkins appeals the Workers' Compensation Commission's holding that his claim is barred by the two-year statute of limitations of Code § 65.1-87 (now Code § 65.2-601). Atkins argues that Latex Construction Company is estopped by its conduct from asserting that he failed to file his claim within the two-year statutory period. Because Latex did nothing to induce Atkins to refrain from filing a timely claim with the commission, Latex is not estopped from raising the statute of limitations as a defense to Atkins' claim. Accordingly, we affirm the commission's decision.
Effective October 1, 1991, Title 65.1 was recodified as Title 65.2. All references in this opinion are to Title 65.1, in effect at the time of the commission's decision rendered in this case.
On May 23, 1988, Glynn Atkins injured his back while working for Latex in Manassas, Virginia. That same day, Atkins notified two of his supervisors of the accident. One of them, David Stout, immediately filled out a First Report of Accident. Latex lost the Report. Believing that he had suffered only a minor muscle strain, Atkins continued to work for Latex until October 2, 1988, when the construction project at Manassas was completed. Because Atkins attributed the pain in his left leg to a minor muscle strain, he did not see or request a doctor during the remaining months that he worked in Virginia.
After completing the Manassas job, Atkins returned to his home in Arkansas. The pain in his left leg had not subsided. On the day after Atkins returned, he consulted his family doctor, who referred him to a specialist. After consulting with the specialist, Atkins still suffered from the pain eighteen months after the accident. The specialist referred Atkins to Dr. Clark, another specialist, at the Arkansas Foot Clinic. Dr. Clark, who saw Atkins on March 16, 1990, would not treat him without verifying that his medical expenses would be paid by workers' compensation insurance. Consequently, Dr. Clark contacted Latex and spoke with David Stout. Atkins testified that Stout told Dr. Clark to do whatever was necessary to take care of Atkins and that Latex would pay for the cost of treatment. It was Atkins' understanding from hearing the conversation that Latex would be responsible for all medical bills and for filing the necessary forms. At no time was Atkins advised that he had an obligation to file a claim with the commission within two years of his injury. Furthermore, Latex had not informed its employees on the Manassas job of their workers' compensation obligations during the weekly safety meetings. Also, because Latex had not filed the First Report of Accident with the commission, the commission had not sent Atkins a "Blue Letter" notifying him of his obligation to file a claim within two years. Latex, apparently realizing that a First Report of Accident had not been filed, completed one on April 17, 1990. However, the Report was not filed with the commission until July 17, 1990, almost two months after the two-year limitation period had expired.
Latex's insurance company, Wausau, in July, 1990, paid Dr. Clark's charges for treating Atkins on March 16, 1990. At that time, however, Wausau notified Atkins in a letter dated July 26, 1990, that it would not reimburse Atkins for any other medical treatment that he had received.
Atkins filed a claim with the commission on December 17, 1990, approximately seven months after the two-year limitation under Code § 65.1-87 (now Code § 65.2-601) for filing his claim had expired. The deputy commissioner denied Atkins' application on the ground that it was barred by the limitations period. The deputy commissioner rejected Atkins' argument that Latex was estopped from asserting the statute of limitations. The deputy commissioner concluded that the evidence was "insufficient to establish that the employer or its representative ever took any action to induce the claimant to refrain from filing a claim within the applicable time frame." The full commission reviewed the issue of estoppel and affirmed the deputy commissioner's decision.
Atkins contends that the evidence was sufficient to prove a course of conduct that should estop Latex from invoking the statute of limitations. Because no conflict in the evidence exists regarding Latex's conduct toward Atkins, this Court must determine whether, as a matter of law, the evidence supports a holding that Latex's conduct should not estop it from pleading the statute of limitations. Cibula v. Allied Fibers Plastics, 14 Va. App. 319, 324, 416 S.E.2d 708, 711 (1992) ("When the issue is the sufficiency of the evidence and there is no conflict in the evidence, the issue is purely a question of law"). Therefore, contrary to Latex's contention, we do not defer to the commission's decision that Latex did nothing to constitute an equitable estoppel as if it were a factual finding. Instead, this Court must determine if the commission properly applied the law to the facts and reached the correct legal conclusion. Id. (citing City of Norfolk v. Bennett, 205 Va. 877, 880, 140 S.E.2d 655, 657 (1965)).
An employer and its insurance carrier are estopped from asserting the statute of limitations under Code § 65.1-87 (now Code § 65.2-601) if either of them committed any act that was reasonably calculated to induce or did, in fact, induce the claimant to refrain from timely filing an injury claim with the Workers' Compensation Commission. Cibula, 14 Va. App. at 324, 416 S.E.2d at 711; Stuart Circle Hosp. v. Alderson, 223 Va. 205,
208, 288 S.E.2d 445, 447 (1982) (per curiam); Clark v. United Airlines, 223 Va. 197, 200, 288 S.E.2d 441, 442-43 (1982). The claimant need not prove a false representation, concealment of a material fact, or fraudulent intent. Cibula, 14 Va. App. at 324, 416 S.E.2d at 711. All that must be proven is that some conduct by the employer or insurance carrier did, in fact, induce the employee to forgo filing a timely claim. Id. However, the party seeking to invoke the doctrine of estoppel must prove the causation between the act and inducement "by clear, precise and unequivocal evidence." Id. at 325, 416 S.E.2d at 711 (quoting Rose v. Red's Hitch Trailer Serv., 11 Va. App. 55, 59-60, 396 S.E.2d 392, 395 (1990)). Given this standard of proof, we affirm the commission's holding that Latex did nothing that caused or induced Atkins to refrain from filing his workers' compensation claim.
The fact that the employer voluntarily paid the employee's medical bills does not estop the employer from invoking the statute of limitations under Code § 65.1-87 (now Code § 65.2-601). Cibula, 14 Va. App. at 324, 416 S.E.2d at 711 (citingStuart Circle, 223 Va. at 208, 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) (citing Clark, 223 Va. at 200, 288 S.E.2d at 442-43). In order for payment of medical bills to estop the employer from pleading that the claim is barred by the statute of limitations, the claimant must prove that the employer's act in paying those bills, in fact, induced the claimant to forgo filing a claim with the commission. An employee cannot assume from the fact that an employer or its insurer voluntarily pays part of the employee's medical expense that he or she is relieved from filing a claim with the commission. Voluntary payment of medical bills does not under these circumstances relieve the employee of the obligation to file a claim with the Workers' Compensation Commission.
An employee may show that he was actually induced to refrain from filing a claim by proving that the employer or insurance carrier represented to the employee that it was filing the employee's claim with the commission on the employee's behalf. In Cibula, the claimant was told by his safety manager, the person who had the responsibility for monitoring workers' compensation claims, that the employer's workers' compensation insurer "would take care of [Cibula's] bills" and that Cibula need only submit his medical bills for reimbursement. In addition, the safety manager told Cibula "that his claim [had been] turned in to the Industrial Commission." Cibula, 14 Va. App. at 325, 416 S.E.2d at 711-12. We held that the safety manager's "affirmative assurance concerning Cibula's 'claim' was a representation that induced Cibula to believe that he was in compliance with all workers' compensation requirements."Id. at 325, 416 S.E.2d at 712.
By contrast, in those cases where the employee's medical bills were voluntarily paid, but no statement was made to the employee that the workers' compensation claim had been taken care of, no inducement was found to have occurred that would estop the employer from pleading the statute of limitations. The facts of the present case are analogous to those in the Stuart Circle and Clark cases, where no grounds for estoppel were found. In this case, neither Latex nor its insurance carrier made any representations to Atkins with respect to his workers' compensation claim. The only representation made to Atkins was that Latex would pay for Dr. Clark's medical treatment rendered on March 16, 1990. Such a representation could not have induced Atkins to believe that his workers' compensation claim had been filed, and is insufficient, as the commission held, to invoke the equitable estoppel doctrine.
Atkins also contends that Latex is estopped from asserting the statute of limitations because Latex failed to file its accident report with the commission until after the limitations period had expired, thereby preventing Atkins from receiving a "Blue Letter" and an employee's guide from the commission that would have notified him of the deadlines and filing requirements. The courts and commission, however, have repeatedly held that the employer's failure to file the First Report of Accident does not alter the claimant's obligation to file a timely claim.Flynn v. Sun Shade Nursery Gift, 66 O.I.C. 15, 17 (1987);Bowden, 11 Va. App. at 686, 401 S.E.2d at 886; Stuart Circle, 223 Va. at 208, 288 S.E.2d at 446-47. But see Code § 65.2-602 (effective October 1, 1991, after Atkins' claim was time barred, the failure to file the First Report tolls the limitation period).
Finally, Atkins argues that because he was a non-resident and did not know of the two-year statute of limitations, his failure to file a claim within the statutory period should be excused. Atkins contends that because neither Latex nor the commission apprised him of his obligation to file a claim within two years of his injury, Latex should not be able to avail itself of the statute of limitations defense. Atkins' argument parallels the provisions of the newly enacted Code § 65.2-602. Code § 65.2-602 provides that, if the employer has notice of an employee's injury and either pays compensation during disability or fails to file a First Report of Accident, the statute of limitations will be tolled unless the employer has posted a notice informing the employees of their obligation to file a claim with the commission within two years from the date of injury. However, Code § 65.2-602 did not become effective until October 1, 1991, after Atkins' claim was time barred; therefore, it does not apply in this case. See Cohen v. Fairfax Hospital Ass'n, 12 Va. App. 702, 705, 407 S.E.2d 329, 330 (1991). Before Code § 65.2-602 was enacted, the Supreme Court and commission held that a claimant's ignorance of the statute and necessity to file a claim does not estop an employer or insurer from raising the limitation period as a defense. Clark, 223 Va. at 200, 288 S.E.2d at 442-43; Stuart Circle, 223 Va. at 208, 288 S.E.2d at 446-47; Flynn at 17. Those cases are controlling here. Atkins is not excused from his obligation to file a claim within two years on the basis that he was unaware of the limitation period.
In summary, Latex did not induce Atkins to forego filing his claim with the Workers' Compensation Commission when it paid for Atkins' medical treatment, when it failed to file a First Report of Accident within the limitations period, or when it failed to advise Atkins of his obligation to file a claim with the commission within two years from the date of injury. Accordingly, Latex is not estopped from asserting the statute of limitations as a defense against Atkins' claim. The commission's decision to deny Atkins' claim on the basis that it was time barred is affirmed.
Affirmed.