Estoppel

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ESTOPPEL

See Imposition, Statute of Limitations

The doctrine of estoppel does not require a claimant to prove either that an employer's representation was false or that the employer made the representation with the intent to induce reliance. Cibula v. Allied Fibers & Plastics, 14 Va. App. 319,325, 416 S.E.2d 708, 711 (1992), aff'd, 245 Va. 337, 428 S.E.2d 905 (1993) (applying Stuart Circle Hosp. v. Alderson, 223 Va. 205, 208, 288 S.E.2d 445, 446-47 (1982)). Instead, a claimant makes a case for estoppel if he proves by clear, precise and unequivocal evidence that the employer made a representation or committed any act that did in fact induce the claimant to refrain from filing a claim within the limitations period. Id. Under this theory of estoppel, the essential elements are "a representation, reliance, a change of position, and detriment." T . . . v. T . . ., 216 Va. 867, 873, 224 S.E.2d 148, 152 (1976).

To prove estoppel, claimant was required to show by clear, precise and unequivocal evidence that she relied upon an act or statement of employer or its agent in refraining 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). The rule is well-settled that employer is not estopped from invoking the limitation period provided by Code Sec. 65.2-601 merely because it made voluntary payments to claimant. See Bowden v. Newport News Shipbuilding & Drydock Co., 11 Va. App. 683, 686-87, 401 S.E.2d 884, 886 (1991).

It is well settled that in successive actions between two parties, "a party will not be permitted to maintain inconsistent positions or to take a position in regard to a matter which is directly contrary to, or inconsistent with, one previously assumed by him." 28 Am. Jur. 2d, Estoppel and Waiver, Sec. 68 (1966); see also Brown v. Lawson Transp. Corp., 7 Va. App. 679, 681, 377 S.E.2d 136, 137 (1989). Whether employer is judicially estopped from asserting claimant is not its employee for purposes of entitlement under the Workers' Compensation Act (Act) is a mixed question of law and fact, fully reviewable by this Court. Sinclair v. Shelter Constr. Co., 23 Va. App. 154, 156-57, 474 S.E.2d 856, 857-58 (1996) (citing City of Waynesboro v. Harter, 1 Va. App. 265, 269, 337 S.E.2d 901, 903 (1985)). In defending the tort action in the circuit court based on claimant's status as "statutory employee," employer, a fortiori, postured itself as claimant's "statutory employer." As claimant's statutory employer, employer effectively conceded it is fully liable under the Act. Code Sec. 65.2-302; see, e.g., Sites Constr. Co. v. Harbeson, 16 Va. App. 835, 837, 434 S.E.2d 1, 2 (1993).

To prove estoppel, a claimant must 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. See Rose v. Red's Hitch & Trailer Servs.,Inc., 11 Va. App. 55, 59-60, 396 S.E.2d 392, 395 (1990). Estoppel does not require "proof that the representation [was] false or that the employer intend[ed] to induce reliance. The employee's case is made if the 'representation . . . did in fact induce the [employee] to refrain from filing [a claim].'" Cibula v. Allied Fibers & Plastics, 14 Va. App. 319, 325, 416 S.E.2d 708, 711 (1992) (quoting Stuart Circle Hosp. v. Alderson, 223 Va. 205, 208, 288 S.E.2d 445, 446 (1982)). However, an employer has no affirmative duty under the Act to inform an injured employee of the need to file a claim with the commission within the statutory period, see Alderson, 223 Va. at 208, 288 S.E.2d at 446, and it is well settled that an employer is not estopped as a matter of law from relying on the limitation period merely because it voluntarily paid a claimant's medical bills. See id. at 209, 288 S.E.2d at 447; Bowden v. Newport News Shipbuilding & Dry Dock Co., 11 Va. App. 683, 686-87, 401 S.E.2d 884, 886 (1991). An employer's actions in requiring a claimant to use a panel physician, seek approval before changing physicians, and participate in vocational rehabilitation assessments "are no more than those one would expect from an employer conscientiously complying with the [Act]. They did not, as a matter of law, induce the employee to believe that [he] did not need to file a claim with the commission." Cheski v. Arlington County Pub. Schs., 16 Va. App. 936, 939-40, 434 S.E.2d 353, 356 (1993). Although employer's filing of a memorandum of agreement or first report may have triggered the mailing of correspondence from the commission regarding claim filing, nothing in the record indicates that employer's failure to file either of these documents induced claimant to refrain from filing a claim. See Bristol Newspapers, Inc. v. Shaffer, 16 Va. App. 703, 708, 432S.E.2d 23, 26 (1993) (holding, under doctrine of estoppel, that mere "failure by the employer to report the accident in accordance with Code Sec. 65.2-900 neither tolls the statute [of limitations] nor precludes the defense [of its expiration]"); see also Alderson, 223 Va. at 208, 288 S.E.2d at 447 (rejecting allegation that employer's failure to notify commission of payments, which would have triggered commission's notice to her to file claim, proved estoppel). Aundra N. Jenkins v. Ford Motor Company, Record No. 0092-97-1 (May 5, 1998).

Employer did not initially accept the flare-up as compensable and did not begin voluntary payments of compensation until after the statute of limitations expired; therefore, employer's duty to file a memorandum of agreement evidencing those payments also did not arise until after the expiration of the statute of limitations. See Code Sec. 65.2-701. Employer's filing of Form 45A caused the commission to send a workers' compensation guide to claimant. Although claimant could not recall with certainty whether he received it, nothing in the record shows that he did not. Code Sec. 65.2-201(D) requires the commission to (1) publish a "guide . . . which informs an injured employee of his rights under [the Act]," and (2) provide a copy of the guide to an employee when it receives notice of his accident. Here, the commission acknowledged this procedure and confirmed that its records indicated a guide was sent to claimant at his correct mailing address and was not returned. See Avery v. County Sch. Bd., 192 Va. 329, 334-35, 64 S.E.2d 767, 771(1951) (noting presumption that clerk of trial court properly performs official duties imposed by statute or rule of court); Villwock v. Insurance Co. of N. Am., 22 Va. App. 127, 134 n.4, 468 S.E.2d 130, 134 n.4 (1996) (discussing presumption that correspondence properly mailed is received by addressee and noting that denial of receipt by addressee raises issue for fact finder). Aundra N. Jenkins v. Ford Motor Company, Record No. 0092-97-1 (May 5, 1998).

Where the employer had agreed in writing, before the statute of limitations under Code Sec. 65.2-708 ran, to pay for the claimant's surgery and the related temporary total disability benefits, but then delayed approval of the surgery until the statutory period under Code Sec. 65.2-708 for claiming the related disability benefits had expired, the employer is estopped from relying upon the statute of limitations. Leslie Fernandes v. Handyman Services, Inc., Record No. 2182-94-4 (August 22, 1995).

The voluntary payment of compensation benefits to claimant for more than two years by the employer and its insurer did not constitute a de facto award. Employer voluntarily paid compensation benefits to claimant from November 29, 1995 through February 1998, but did not file a Memorandum of Agreement with the commission. On December 12, 1997, claimant filed a Claim for Benefits related to the November 29, 1995 incident. At the hearing, employer defended against the claim on the ground that claimant did not sustain a compensable injury by accident arising out of and in the course of her employment. Based upon this record, we find that the commission did not err in ruling that a de facto award did not exist and that "employer defended the compensability of this claim in good faith, and that the employer's voluntary payment of benefits [did] not prevent it from contesting the compensability of the underlying claim." Here, employer did nothing more than make voluntary payments to claimant. "An employer and carrier are not estopped from denying future payments merely because they had paid them in the past." Rucker v. Thrift Transfer, Inc., 1 Va. App. 417, 420, 339 S.E.2d 561, 562 (1986). National Linen Serv. v. McGuinn, 5 Va. App. 265, 362 S.E.2d 187 (1987) (en banc), and City of Roanoke v. Anderson, Rec. No. 2561-94-3 (Va. Ct. App. Dec. 19, 1995) are distinguishable. In McGuinn, unlike this case, the employer stipulated to the compensability of the claim. McGuinn, 5 Va. App. at 271, 362 S.E.2d at 190. Then, after accepting the claim as compensable, National Linen defended solely on the ground that claimant failed to market his residual work capacity. See id. at 268, 362 S.E.2d at 188. In this case, employer never accepted the claim as compensable, and in fact, challenged the compensability of the claim at the hearing. In Anderson, unlike this case, the employer accepted the claimant's condition as compensable before it stopped paying compensation benefits and challenged the causal relationship between the claimant's disability and his employment. Terri Lee Robinson v. Olan Mills, Record No. 0839-99-3 (September 7, 1999). WP Version.

The commission did not err in finding that the employer was estopped from asserting the two year statute of limitations. Although the claimant received the "Blue Letter" from the commission explaining her rights and obligations under the Act, her supervisor told her that she did not have to do anything because "everything had been taken care of." Her supervisors always told her that everything had been done when she took papers such as medical bills to them. Therefore, she "didn't do anything." To prove estoppel, a claimant must: (1) show by "clear, precise and unequivocal evidence"; (2) that he or she relied to his or her detriment; (3) upon an act or statement of the employer or its agent; (4) 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) (citing Brown v. Lawson Transportation Corp., 7 Va. App. 679, 681, 377 S.E.2d 136, 137 (1989)). Estoppel "does not require proof that the representation be false or that the employer intend to induce reliance. The employee's case is made if the 'representation . . . did in fact induce the [employee] to refrain from filing.'" Cibula v. Allied Fibers & Plastics, 14 Va. App. 319, 325, 416 S.E.2d 708, 711 (1992) (quoting Stuart Circle Hosp. v. Alderson, 223 Va. 205, 208, 288 S.E.2d 445, 446 (1982)). "[P]roof of a representation, reliance, change of position, and detriment is sufficient to establish equitable estoppel." Id. at 324, 416 S.E.2d at 711 (citations omitted). Whether or not claimant received the "Blue Letter" is not a factor in an analysis of equitable estoppel as long as the claimant proves the elements of equitable estoppel. In this case, even if claimant had read the commission's "Blue Letter," she still could reasonably rely on her supervisor's representation that the employer would file the appropriate claim on her behalf because there is no requirement that the claimant, herself, file the claim. Although the employer did not have fraudulent intent to mislead the claimant, the supervisor's statements did, in fact, induce the claimant to understand that she needed to take no further action in order to perfect her claim. Through its actions, the employer lulled the claimant into a belief that her claim was accepted and that she did not have to take any further actions to protect her rights. Home Beneficial Corporation v. M.M. Jackson, Record No. 1155-99-1 (May 30, 2000). WP Version.

� 65.2-706.1 Estoppel effect of a Virginia Workers' Compensation Commission determination of employment status.

A final, unappealed award by the Virginia Workers' Compensation Commission that a person is or is not an employee of another for the purpose of obtaining jurisdiction shall estop either of said parties from asserting otherwise in any subsequent action between such parties upon the same claim or cause of action in a court of this Commonwealth.

Employer properly asserted the statute of limitations as a defense. The employee injured his back at work on June 13, 1995. The employer put the employee on long-term disability on February 11, 1997, paid all medical bills, and paid either benefits or compensation from June 20, 1997 through December 1999. The employer filed its first report of accident with the commission on February 20, 1996. The commission sent the employee a "blue letter" on February 26, 1996, which explained an employee's obligation to file a claim within two years from the date of the injury. That letter was never returned to the commission as undelivered. The two-year period for filing a claim expired June 13, 1997. The statute was tolled until February 20, 1998, two years after the filing of the employer's first report. Code Sec. 65.2-602. The employee filed a claim for compensation on November 2, 1998.
    A worker must file a claim within two years of the industrial accident. Code Sec. 65.2-601. The statute of limitations bars the employee's claim unless the bar is tolled, Code Sec. 65.2-602, the employer is estopped from asserting the defense, American Mutual Liability Ins. Co. v. Hamilton, 145 Va. 391, 135 S.E. 21 (1926), or the doctrine of imposition bars the defense, Avon Products, Inc. v. Ross, 14 Va. App. 1, 415 S.E.2d 225 (1992). To estop the employer from pleading the statute of limitations, the employee must present clear, precise, and unequivocal evidence that he refrained from filing a claim because he relied to his detriment upon the acts or statements of the employer. Rose v. Red's Hitch & Trailer Servs., Inc., 11 Va. App. 55, 59-60, 396 S.E.2d 392, 394-95 (1990). If the employer's representation induced the employee to refrain from filing a claim, it does not matter whether the employer harbored such intent. Cibula v. Allied Fibers & Plastics, 14 Va. App. 319, 325, 416 S.E.2d 708, 711 (1992), aff'd, 245 Va. 337, 428 S.E.2d 905 (1993).
    Employers have no obligation to advise an employee of the period in which a claim must be filed. Stuart Circle Hosp. v. Alderson, 223 Va. 205, 208, 288 S.E.2d 445, 446 (1982). The employer's silence, where there was no duty to disclose, was not a representation upon which the employee could later rely. It was not employer's responsibility to advise the employee of the filing requirement.
    The employer is not estopped from asserting the statute of limitations defense merely because it voluntarily paid (1) medical bills, Stuart Circle Hosp. v. Alderson at 208, 288 S.E.2d at 446, (2) wages, Clark v. United Airlines, 223 Va. 197, 200, 288 S.E.2d 441, 442-43 (1982), or (3) benefits, Bowden v. Newport News Shipbuilding & Dry Dock Co., 11 Va. App. 683, 686-87, 401 S.E.2d 884, 886 (1991). The employer's payment of benefits and medical bills and its participation in the employee's medical care for two years are not sufficient conduct upon which the employee can rely to excuse his failure to file a claim.
    Employer's handbook stated the employee's sole responsibility was to notify his employer of the accident. That statement does not amount to a misrepresentation upon which the employee could reasonably rely. The employee never testified that he relied upon the handbook. He never explained why the blue letter did not correct any misconception that arose from the handbook. The evidence did not support the employee's contention that this particular document caused him to refrain from filing a claim. Where the employee receives notice from the commission about the filing of a claim, there is a presumption he was not prejudiced. Code Sec. 65.2-602; Caskey v. Dan River Mills, 225 Va. 405, 411, 302 S.E.2d 507, 510 (1983); Jenkins v. Ford Motor Co., 27 Va. App. 281, 291, 498 S.E.2d 445, 450 (1998). Though the employee did not recall receiving the commission's blue letter, the commission found no evidence that he did not receive that guide. It was not returned to the commission. No evidence suggested an affirmative or deliberate effort by the employer to prejudice the employee's right to file a timely claim. No statement or conduct by the employer constituted a representation concerning the workers' compensation claim upon which the employee could reasonably rely to his detriment. Cf. American Mutual, 145 Va. at 406, 135 S.E. at 25; Cibula, 14 Va. App. at 325, 416 S.E.2d at 711 (employer estopped from asserting defense because it affirmatively told employee claim had been submitted and his bills would be paid). Further, with the exception of the employer's personnel handbook given the employee in 1994, the statements and conduct upon which the employee claimed to have relied occurred after the statute of limitations expired. They could not have induced the employee to delay filing a timely claim.
    The doctrine of imposition was inapplicable. The doctrine of 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." Odum v. Red Lobster #235, 20 Va. App. 228, 234, 456 S.E.2d 140, 143 (1995). The commission is empowered "to do full and complete justice." Avon Products, 14 Va. App. at 8, 415 S.E.2d at 229 (imposition barred employer from asserting statutory defense where employer assured employee that all papers necessary to filing a claim had been filed). The doctrine prevents an employer's use of its superior knowledge of, or experience with, the Workers' Compensation Act or its use of economic advantage to cause an unjust deprivation to the employee of benefits provided by the Act. "[T]he doctrine applies where, . . . the record shows a series of acts by the employer . . . upon which a claimant naturally and reasonably relies to his or her detriment." Butler v. City of Virginia Beach, 22 Va. App. 601, 605, 471 S.E.2d 830, 832 (1996) (citations omitted). As noted, the evidence in this case does not support a finding of reasonable reliance by the employee. The employer's conduct evinced its intent to comply with the Act. The employer filed a first report of accident with the commission, accompanied the employee to his medical appointments, exchanged memoranda with his physicians, and paid compensation and medical bills for two years. These actions were consistent with the intent of the Act, and the doctrine of imposition does not apply where the employer's conduct is consistent with trying to comply with the Act. Cheski v. Arlington County Public Schools, 16 Va. App. 936, 940, 434 S.E.2d 353, 356 (1993). The commission did not err in finding the doctrine of imposition inapplicable to these facts.
    The employee argues Avon Products controls. In that case, the employee contacted the employer immediately after her injury and the employer paid her compensation for four years. The employee received notice from the commission to file a memorandum of agreement. She immediately contacted the employer about the need to file the agreement and the employer advised her "whatever was necessary to protect her interests had been done." 14 Va. App. at 3, 415 S.E.2d at 226. No memorandum was filed or accepted. The commission found the employer's representations justified the claimant's reliance and the facts created an imposition that required the commission to hold that an award was in effect. Here, the employer made no similar representations to the employee regarding the compensation claim. The payment of benefits and medical bills for two years was not sufficient. While the employer accepted the claim as compensable, the filing of the memorandum of agreement did not occur until after the statutory period had passed. Moreover, without commission approval, a memorandum of agreement is null and void. Code Sec. 65.2-701(A); Damewood v. Lanford Brothers Co., 29 Va. App. 43, 45, 509 S.E.2d 530, 531 (1999).
    Finally, the employee suggests that the doctrine of de facto awards might be applied. The employee concedes that the doctrine has not been applied to a plea of the statute of limitations and does not suggest why it should be extended. The doctrine of de facto awards was first approved in National Linen Serv. v. McGuinn, 5 Va. App. 265, 269-70, 362 S.E.2d 187, 189 (1987) (en banc). That case specifically distinguished cases involving a plea of the statute of limitations. On the basis of that authority, Adkins v. Nabisco Biscuit, 97 Vap. UNP 1803962, Record No. 1803-96-2 (July 29, 1997), held de facto awards did not apply to the statute of limitations defense, which comported with the commission's ruling in Adkins v. Nabisco, Inc., 75 O.W.C. 285 (1996). Here, there is no presumed prejudice because the employer filed the first report. The Court of Appeals declined to apply the doctrine to a case lacking misrepresentation or reasonable reliance but demonstrating the employer's compliance with the Act. Russell A. Strong v. Old Dominion Power Company, Record No. 1866-00-3 (March 20, 2001). WP Version.

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