Opinion
Record No. 0550-92-2
December 1, 1992
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Mitchell I. Mutnick, on brief), for appellant.
(John R. Turbitt; Slenker, Brandt, Jennings Johnston, on brief), for appellees.
Present: Judges Barrow, Moon and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
Upon reviewing the record and the briefs of the parties, we conclude that the appeal is without merit. Accordingly, we affirm the decision of the Workers' Compensation Commission. Rule 5A:27.
Walter P. Cumbie, Jr. contends in this appeal that the commission erred in holding that the employer was not estopped from relying on the applicable statute of limitations contained in Code § 65.2-601 as a defense to the claimant's application for benefits. Cumbie does not challenge the commission's ruling that the claim was filed outside of the two-year limitations period.
On appellate review, the Court will construe the evidence in the light most favorable to the party prevailing below. R. G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "[T]he findings of fact of the Industrial Commission will be upheld when supported by credible evidence." Fairfax County v. Espinola, 11 Va. App. 126, 129, 396 S.E.2d 856, 858 (1990) (citation omitted).
The record reveals that Cumbie filed his application on June 22, 1990 alleging an injury by accident arising out of and in the course of his employment on December 21, 1987. The Employer's First Report of Accident was filed by the employer on February 19, 1988. The "blue letter" was sent by the commission to Cumbie on February 26, 1988. The employer/insurer voluntarily paid benefits to Cumbie through May 14, 1989. On May 28, 1989, the insurance company's agent forwarded a Memorandum of Agreement, Agreed Statement of Fact and Supplemental Memorandum of Agreement to Cumbie's attorney. The deputy commissioner made a factual finding that these agreements were sent to the claimant but not received back by the insurance company's agent. The full commission adopted this finding of fact. We find that the commission's factual finding regarding the agreements is based upon credible evidence in the record and it will not be disturbed on appeal.
Code § 65.2-602 prevents tolling of the applicable statute of limitations where the Employer's First Report of Accident has been filed. Hervey v. Newport News Shipbuilding Dry Dock Co., 12 Va. App. 88, 92-93, 402 S.E.2d 688, 691 (1991). Here, the Employer's First Report of Accident was filed before the limitations period expired. Therefore, the commission correctly held that Code § 65.2-602 could not serve as a basis to estop the appellees from raising the statute of limitations defense. Furthermore, the commission did not err in finding that Code § 65.2-701 was not breached by the insurance company's agent, since there was credible evidence to support its finding that the agreements were sent to the claimant but never returned.
It is well-settled that an employer is not estopped as a matter of law from relying on the limitation period provided by Code § 65.2-601 because it has made voluntary payments to the claimant in the past. Bowden v. Newport News Shipbuilding Dry Dock Co., 11 Va. App. 683, 686-87, 401 S.E.2d 884, 886 (1991) (citing Clark v. United Airlines, 223 Va. 197, 200, 288 S.E.2d 441, 442-43 (1982)). Here, to prove an estoppel, Cumbie was required to show by clear, precise and unequivocal evidence that he relied to his detriment upon the act or statement of the insurance company's agent to refrain 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) (citation omitted). "`In the absence of fraud, elements necessary to establish an equitable estoppel are a representation, reliance, a change in position, and detriment.'" Nabisco Brands, Inc. v. Jones, 12 Va. App. 1028, 1032, 407 S.E.2d 919, 921 (1991) (quoting Rucker v. Thrift Transfer, Inc., 1 Va. App. 417, 420, 339 S.E.2d 561, 562 (1986)) (other citation omitted).
There is no evidence of fraud in the record. Cumbie testified that the insurance company representatives he spoke with did not make any statements to induce him to fail to sign the agreements. The commission found that no assurances that the agreements had been received were made by the insurance company representatives. Accordingly, Cumbie failed to meet his burden of proving a reliance, a change in position, and detriment by clear, precise and unequivocal evidence. Thus, we cannot say as a matter of law that the commission erred in finding that there could be no estoppel.
We agree, for the reasons stated by the full commission, thatNational Linen Service v. McGuinn, 5 Va. App. 265, 362 S.E.2d 187 (1987), does not apply to this case. Finally, the evidence contained in this record does not rise to the level of the reliance evidence offered by the claimant in Cibula v. Allied Fibers Plastics, 14 Va. App. 319, 416 S.E.2d 708 (1992). Thus, our holding in Cibula does not support claimant's position.
For the reasons stated, we affirm the commission's decision.
Affirmed.