Opinion
Record No. 0911-93-1
November 16, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Christopher R. Taylor, pro se, on briefs).
(Joyce A. Melvin-Jones, Deputy City Attorney, on brief), for appellee.
Present: Judges Baker, Elder and Fitzpatrick.
Pursuant to Code § 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 (commission). Rule 5A:27.
Christopher R. Taylor (claimant) contends that the commission erred in finding: (1) that the City of Hampton (employer) was not estopped from relying on the applicable statute of limitations contained in Code § 65.1-87 (now Code § 65.2-601); and (2) that he did not sustain any compensable work incapacity within two years from the date of the accident.
We decline to address claimant's contention that he is entitled to benefits as a result of an accident which occurred on May 26, 1988. The record in this case does not contain any claim for an injury by accident occurring on May 26, 1988. Accordingly, since such a claim was not before the commission when it rendered its decision, we will not consider it for the first time on appeal. See Kendrick v. Nationwide Homes, Inc., 4 Va. App. 189, 192, 355 S.E.2d 347, 349 (1987); Rule 5A:18.
On appellate review, we 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 . . . 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).
I.
Code § 65.1-87 (now Code § 65.2-601) provides that the right to compensation is barred if a claimant does not file a claim within two years from the date of accident. Claimant filed his application on October 5, 1992, alleging an injury by accident arising out of and in the course of his employment on July 29, 1987 and July 5, 1990. Claimant alleged that he sustained a contusion of the right shoulder and elbow when he fell from a ladder and that he suffered from degenerative arthritis. Claimant sought compensation for wage loss commencing July 5, 1990.
July 5, 1990 was the date of claimant's surgery. Although claimant's application references an accident date of July 29, 1987, he refers to a September 1987 accident in his written statement submitted on review.
Employer's First Report of Accident was filed on August 27, 1990, reflecting an accident date of September 16, 1987. The report stated that claimant sprained his left ankle and right shoulder while blowing insulation in an attic. According to the report, claimant lost four days from work, returning on September 21, 1987. Claimant underwent right shoulder surgery on July 5, 1990. Since claimant had not lost any time from work up until July 1990, employer had not paid any compensation for lost wages, but had voluntarily paid claimant's medical expenses.
There is an Employer's First Report of accident in the record relating that claimant sustained injury on July 29, 1987 when he fell off of a ladder. The report reflects that claimant missed three days from work in that instance.
Claimant does not dispute the fact that he failed to file a claim within two years from the date of his accident. However, he contends that the commission erred in finding that employer was not estopped from invoking the statute of limitations. The commission found that the failure of employer to advise claimant of his rights under the Act was not a sufficient basis to estop employer from pleading the statute of limitations, nor did voluntary payment of medical expenses by employer toll the statute or provide any basis to estop employer. Credible evidence supports the commission's findings.
To prove estoppel, claimant was required to show by clear, precise and unequivocal evidence that he relied to his detriment upon an act or statement of employer or its 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). 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 merely because it made voluntary payments to claimant. Bowden v. Newport News Shipbuilding Dry Dock Co., 11 Va. App. 683, 686-87, 401 S.E.2d 884, 886 (1991).
There is no evidence of fraud or misrepresentation in the record sufficient to meet the requirement for proving estoppel. Employer did nothing to prevent claimant from filing a timely claim. The evidence in this case is not similar to that found in Cibula v. Allied Fibers Plastics, 14 Va. App. 319, 416 S.E.2d 708 (1992). In Cibula, the employer's representative testified that he specifically told the employee that his claim for benefits had been turned in to the commission. Id. at 321, 416 S.E.2d at 709. Nothing in this record demonstrates that employer made any representation which was intended to induce or did in fact induce claimant to refrain from filing a claim. Accordingly, we cannot say as a matter of law that the commission erred in finding that there could be no estoppel.
II.
The commission also correctly determined that there was no evidence that claimant sustained any compensable work incapacity within two years of the date of injury. The record reflects that, during the two year period following the accident, claimant missed no more than seven days of work. "No compensation shall be allowed for the first seven calendar days of incapacity resulting from an injury [except in situations not pertinent here]." Code § 65.1-62 (now Code § 65.2-509).
We note that any disability suffered by claimant as a result of his numerous other injuries since September 1987 does not bear upon this issue. There is no evidence in the record that these injuries were related to the employment or to the September 1987 accident.
For the reasons stated, we affirm the commission's decision.
Affirmed.