Opinion
Record No. 2369-93-2
Decided: May 24, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
(Charles D. Bennett, Jr., on brief), for appellant.
(P. Dawn Bishop; Sands, Anderson, Marks Miller, on brief), for appellees.
Present: Judges Barrow, Koontz and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the Workers' Compensation Commission. Rule 5A:27.
The issue in this appeal is whether the employee's current respiratory, cardiac, and inner ear conditions were caused by a collapsed lung he experienced fifteen years earlier and for which he was compensated.
The employee concedes that the respiratory, cardiac and inner ear conditions for which he received medical treatment from April 1991 through June 1992 were caused by his underlying pulmonary disease. However, he asserts that because employer labelled the collapsed lung as an "injury" rather than as an "occupational disease," and paid medical expenses related to the employee's "mislabeled" condition for thirteen years, employer is estopped from denying payment for the cost of his current medical treatment. In essence, the employee contends that the award entered in 1978 should have been based upon an occupational disease, i.e., emphysema, which, in turn caused his lung to collapse.
The commission found that this point was raised too late in the proceedings, coming some sixteen years after the award was entered. Moreover, the commission found that the employee's injury, i.e., the collapsed lung, appeared to have occurred within a narrow time frame while claimant was performing strenuous work, and therefore, more closely fit the definition of injury by accident rather than one of occupational disease. We agree. The collapsed lung constituted an identifiable incident which occurred at a reasonably definite time and resulted in an obvious sudden mechanical or structural change in claimant's body. Accordingly, it meets the definition of an injury by accident. See Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989).
In addition, as the commission observed, "[a]n employer and carrier are not estopped from denying future payments merely because they have paid them in the past." Rucker v. Thrift Transfer, Inc., 1 Va. App. 417, 420, 339 S.E.2d 561, 562 (1986). See also City of Salem v. Colegrove, 228 Va. 290, 295, 321 S.E.2d 654, 656-57 (1984). The elements of equitable estoppel, "a representation, reliance, a change in position, and detriment," must all be shown before an employer is estopped by having made such payments. Nabisco Brands, Inc. v. Jones, 12 Va. App. 1028, 1032, 407 S.E.2d 919, 921 (1991) (quoting Rucker, 1 Va. App. at 420, 339 S.E.2d at 562). The employee does not allege fraud, and no evidence shows that he changed his position to his detriment based upon reliance on the employer's payment of medical expenses. Accordingly, we cannot say as a matter of law that the commission erred in rejecting the employee's equitable estoppel argument.
For the reasons stated, we affirm the commission's decision.
Affirmed.