Opinion
Record No. 1456-92-4
April 27, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
Nadir N. Tawil (Nadir N. Tawil, P.C., on brief), for appellant.
Benjamin J. Trichilo (Lewis, Trichilo, Bancroft McGavin, P.C., on brief), for appellees.
Present: Judges Barrow, Willis and Fitzpatrick.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
On September 13, 1991, Abdel Razick filed an application for disability benefits resulting from a January 17, 1989 accident. On January 31, 1992, a deputy commissioner found the claim barred by the two year statute of limitations. See Code § 65.1-87. The full commission affirmed the deputy commissioner's decision. On appeal, Razick contends that the commission had jurisdiction to adjust his disability benefits even though no award was issued. He also contends that the carrier's conduct, imposed upon him and upon the commission, justified the issuance of an award although the statute of limitations had run. He further contends that he suffered prejudice, and that Code § 65.1-87.1 tolled the running of the statute of limitations. Finally, he contends that the employer waived the statute of limitations defense. We disagree with these contentions and affirm the commission's decision.
Now Code § 65.2-601.
Now Code § 65.2-602.
Razick suffered a back injury while at work on January 17, 1989. He worked until May 6, 1989. He also worked part-time from April, 1990 through December, 1990, and for approximately three weeks in July, 1991. The employer voluntarily paid disability and medical benefits from June 21, 1989 through August 1, 1989 and from August 23, 1989 through July 29, 1991.
The employer filed its First Report of Accident on July 9, 1990. Between July 21, 1990 and July 23, 1990, the commission sent Razick a copy of the workers' compensation guide describing his rights. Razick reads at a third-grade level.
Razick began receiving unpaid medical bills. He then consulted an attorney, who noted his appearance on January 16, 1991. On July 30, 1991, after the statute of limitations had run, the employer sent Razick's counsel a memorandum of agreement. Razick refused to sign the agreement. On September 4, 1991, the employer denied Razick's claim.
On September 13, 1991, Razick filed an application for hearing, and on January 8, 1992, a hearing was held before the deputy commissioner. At that time, Razick did not assert fraud or misrepresentation, nor did he contend that the statute of limitations had been waived. The deputy commissioner found no evidence of fraud or misrepresentation. He found that the statute of limitations had expired, that the employer had not induced Razick to refrain from filing his claim, and that Razick had suffered no prejudice as contemplated by Code § 65.1-87.1 because he had received the workers' compensation guide before the running of the statute of limitations.
Now Code § 65.2-602.
On June 29, 1992, the full commission affirmed the deputy commissioner, specifically finding no evidence that the employer had attempted to mislead or deceive Razick. The commission found that the employer had not waived the statute of limitations defense and that Razick had failed to show improper conduct by the employer warranting application of the doctrine of imposition.
Razick first contends that the totality of the circumstances warrants application of the doctrine of imposition to afford him relief notwithstanding the statute of limitations defense.Avon Products, Inc. v. Ross, 14 Va. App. 1, 7, 415 S.E.2d 225, 228 (1992). He argues that the employer's conduct in acknowledging compensability and paying benefits for thirty months, together with the fact that the employer failed to execute and file a memorandum of agreement as required by Code § 65.1-93 (now Code § 65.2-701(A)), gave the voluntary compensation the status of an award. We disagree.
In Avon, we noted that the employer had represented to the employee "that whatever needed to be done had been done, and that these representations justified claimant's actions in not following up to see that the original memorandum of agreement had been filed." 14 Va. App. at 6-7, 415 S.E.2d at 228. We held that the employer's carrier had elected to process the memorandum of agreement through the employer rather than directly with the claimant, and that to allow a successful statute of limitations defense would be an imposition on the commission and would inhibit its ability to discharge its function. In contrast to Avon, the employer in this case made no representation assuring the protection of Razick's rights. Rather, it sent Razick the necessary agreements, which he failed to sign and return. Therefore, the doctrine of imposition does not apply.
Razick next contends that under the facts of this case, Code § 65.1-87.1 tolls the running of the statute of limitations for eighteen months. He argues that the employer's failure timely to file the first report of accident, thereby causing a delay of eighteen months in Razick's receiving the workers' compensation guide, together with the fact that the employer paid him compensation, misled him and imposed on him the prejudice against which Code § 65.1-87.1 guards. We disagree.
Now Code § 65.2-602.
Code § 65.1-124 requires the employer to file a written report of injury within ten days after its occurrence. The employer delayed this filing for eighteen months. However, Code § 65.1-87.1 does not require tolling of the limitations period merely because the employer failed to comply with Code § 65.1-124. For the statute of limitations to be tolled, the employer's conduct must prejudice the injured employee's ability to file his claim within the limitation period. Whether this occurred is a question of fact to be resolved by the commission. The commission's finding, when supported by credible evidence, will not be disturbed on appeal. Rose v. Red's Hitch Trailer Services, Inc., 11 Va. App. 55, 60, 396 S.E.2d 392, 395 (1990) (citation omitted).
Now Code § 65.2-900.
The commission found that Razick did not suffer the prejudice contemplated by Code § 65.1-87.1. Well within the two year statutory period, he received a guide that advised him of his rights under the Virginia Workers' Compensation Act. He had ample opportunity to file his claim. The record supports this finding. Razick's limited reading ability does not affect this holding. A legally competent person stands fully accountable before the law. If his ability to protect his rights is limited, it is his responsibility to seek counsel.
Razick next contends that by sending a settlement agreement and paying compensation after the statute of limitations had expired, the employer waived the limitations defense and is now estopped from raising it. He argues that this conduct showed the intent to relinquish this defense. We find no merit in this contention. The voluntary continuation of Razick's wages and payment of medical expenses do not estop the employer from asserting the statute of limitations. Code § 65.1-87 (now Code § 65.2-601). Rose v. Red's Hitch Trailer Serv., Inc., 11 Va. App. at 59, 396 S.E.2d at 394; Hervey v. Newport News Shipbuilding Dry Dock Co., 12 Va. App. 88, 402 S.E.2d 688 (1991). Moreover, the appellee could not file the agreement because Razick failed to sign it. The record amply supports the commission's finding that the appellee did not waive its right to assert the statute of limitations defense.
Finally, Razick contends that the carrier unjustly deprived him of the full amount of his benefits before the statute of limitations ran. See John Driggs Co. v. Somers, 228 Va. 729, 324 S.E.2d 694 (1985). He argues that his payroll records reflect an average weekly wage of $435.40 but that the carrier paid only benefits based on an average weekly wage of $348. Our holding that the two year statute of limitations bars Razick's claim renders this issue moot. The statute of limitations having run without an award in place, we cannot now address the correctness of the voluntary payments.
For these reasons, we affirm the decision of the commission.
Affirmed.