Opinion
Record No. 0561-93-4
January 11, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
David E. Field (Alan S. Toppelberg; Alan S. Toppelberg Associates, on brief), for appellant.
William L. Carey (Miles Stockbridge, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Nadeem A. Haider (claimant) appeals from a decision of the Workers' Compensation Commission (commission) finding that his request for benefits was time barred because he failed to file his claim within two years from the date of the accident. Code § 65.2-601. Finding no error, we affirm.
BACKGROUND
As the parties are familiar with the facts of this case, we recite only those necessary to explain our decision. Claimant was employed by the Fairfax Hospital as a nursing assistant and sustained a compensable injury on December 7, 1989. Employer's "First Report of Accident" was filed May 25, 1990 and compensation was voluntarily paid through January 16, 1992. No memorandum of agreement was ever submitted to the commission.
Claimant testified that he received and read the commission's workers' compensation guide and the commission's notification letter dated June 30, 1990. In September 1991, prior to the running of the statute of limitations, he consulted an attorney who "told [him] the same thing like the pamphlet says." No claim was filed because "he was already being paid and he just "didn't think about it." There is no evidence that Fairfax Hospital Association (employer) told him not to file a claim and no act of fraud, misrepresentation or concealment was alleged.
On January 17, 1992, the carrier notified claimant that his benefits were terminated because the statute of limitations had run on December 7, 1991. Subsequently, claimant filed for a hearing on February 7, 1992. Claimant concedes that his claim was not filed within the statutory two year period, but argues that the limitation period was tolled either because employer failed to file a Memorandum of Agreement as required by Code § 65.2-701 or because the First Report of Accident was filed six months after the accident date. We find no merit in these positions.
CONDITIONAL TOLLING OF STATUTE OF LIMITATION
The disposition of this case is controlled by Code § 65.2-602, which provides, in part:
In any case where an employer has received notice of an accident resulting in compensable injury to an employee as required by § 65.2-600, and whether or not an award has been entered, such employer nevertheless has paid compensation or wages to such employee during incapacity for work as defined in § 65.2-500 or § 65.2-502, resulting from such injury or the employer has failed to file the report of said accident with the Virginia Workers' Compensation Commission as required by § 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 required by § 65.2-900. For purposes of this section, such rights of an employee shall be deemed not prejudiced if his employer has filed the first report of accident as required by § 65.2-900 or he has received after the accident a workers' compensation guide described in § 65.2-201 or a notice in substantially the following form: . . .
Id. (emphasis added). Code § 65.2-602 does not toll the statute of limitations because employer failed to file a Memorandum of Agreement or filed late the First Report of Accident. The commission found as a matter of fact that claimant did not suffer the prejudice contemplated by Code § 65.2-602, because,inter alia, he received the compensation guide described in Code § 65.2-201. Credible evidence supports this finding; therefore, we are bound by it. Code § 65.2-706(A); Caskey v. Dan River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d 507, 510 (1983).
IMPOSITION
Claimant argues, in the alternative, that the doctrine of "imposition" requires employer's statute of limitation defense be stricken. We disagree. "[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."Avon Products Inc. v. Ross, 14 Va. App. 1, 7, 415 S.E.2d 225, 228 (1992). The underlying purpose of this authority is to allow the commission "to do full and complete justice in each case."Harris v. Diamond Const. Co., 184 Va. 711, 720, 36 S.E.2d 573, 577 (1946). Virginia's appellate courts have approved the application of the imposition concept in cases where the evidence shows the occurrence of some type of mistake or unfair conduct that would render a strict application of the Act unjust in a particular case. See, e.g., id. (claimant's attorney mistakenly made unauthorized settlement of claim); Avon Products, Inc., 14 Va. App. at 7, 415 S.E.2d at 228 (claimant and carrier mistakenly relied on the belief that a prior award had been entered by the commission); John Driggs Co. v. Somers, 228 Va. 729, 734, 324 S.E.2d 694, 697 (1985) (employer, using superior knowledge and economic leverage, unfairly calculated claimant's weekly wage).
In this case, claimant neglected to assert his rights when he failed to file a claim within two years of the date of the accident, despite being informed of the filing requirements from the workers' compensation guide, a letter from the commission and advice from his attorney. Further, no action by employer induced claimant to refrain from filing his claim.Cf. National Linen Service v. McGuinn, 5 Va. App. 265, 362 S.E.2d 187 (1987) (en banc). It is well settled that an employer cannot be estopped from raising the jurisdictional defense of the statute of limitations, absent fraud or other compelling circumstances. Stuart Circle Hospital v. Alderson, 223 Va. 205, 208, 288 S.E.2d 445, 446-47 (1982).
In Cheski v. Arlington County Public Schools, ___ Va. App. ___, 434 S.E.2d 353 (1993), a factually similar case to the case at bar, we held that when the alleged improper acts of the employer were "consistent with those of an employer endeavoring to comply with the Act, [and the] employer did not use superior knowledge and economic power to achieve the payment of less benefits than required by the Act," application of the imposition concept was inappropriate. Id. at ___, 434 S.E.2d at 356. Because the uncontroverted evidence in this case fails to establish any fraud or a compelling reason that would justify the application of the imposition concept, we affirm the commission's decision and dismiss the application.
Affirmed.