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IMPOSITION

See  Estoppel, Statute of Limitations

"Within the principles established by statutes and the decisions construing them, the commission has 'jurisdiction to do full and complete justice in every case.' From that principle has developed the concept known as 'imposition,' which empowers the commission in appropriate cases to render decisions based upon justice shown by the total circumstances even though no fraud, mistake or concealment has been shown." Odom v. Red Lobster, 20 Va. App. 228, 234, 456 S.E.2d 140, 143 (1995)(quoting Avon Products, Inc. v. Ross, 14 Va. App. 1, 7, 415 S.E.2d 225, 228 (1992)). When applying the doctrine of imposition, "[t]he issue is whether under the totality of the circumstances shown, the actions of the employer and its carrier created an imposition on the commission and the claimant which empowered the commission [to] 'do full and complete justice.'" Avon, 14 Va. App. at 8, 415 S.E.2d at 229.

"[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." Odom v. Red Lobster, 20 Va. App. 228, 234, 456 S.E.2d 140, 143 (1995) (quoting Avon Products, Inc. v. Ross, 14 Va. App. 1, 7, 415 S.E.2d 225, 228 (1992)). The doctrine empowers the commission "to `do full and complete justice.'" Id. (quoting Avon, 14 Va. App. at 8, 415 S.E.2d at 229). The doctrine focuses on an employer's or the commission's use of superior knowledge of or experience with the Workers' Compensation Act or use of economic leverage, which results in an unjust deprivation to the employee of benefits warranted under the Act. See John Driggs Co. v. Somers, 228 Va. 729, 734-35, 324 S.E.2d 694, 697 (1985); Odom, 20 Va. App. at 235, 456 S.E.2d at 143; Cheski v. Arlington County Public Schools, 16 Va. App. 936, 940, 434 S.E.2d 353, 356 (1993). Thus, this Court has found that the doctrine applies where, inter alia, the record shows a series of acts by the employer or the commission upon which a claimant naturally and reasonably relies to his or her detriment. Odom, 20 Va. App. at 235, 456 S.E.2d at 143.

The doctrine of imposition also does not apply to toll the statute of limitations in this case. 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.'" Odom v. Red Lobster # 235, 20 Va. App. 228, 234, 456 S.E.2d 140, 143 (1995) (quoting Avon Prods., Inc. v. Ross, 14 Va. App. 1, 7, 415 S.E.2d 225, 228 (1992)). "The doctrine focuses on an employer's or the commission's use of superior knowledge or of experience with the Workers' Compensation Act or use of economic leverage, which results in an unjust deprivation to the employee of benefits warranted under the Act." Butler v. City of Va. Beach, 22 Va. App. 601, 605, 471 S.E.2d 830, 832 (1996). Whether an employee has received a "blue letter" or guide outlining commission procedures and the claim filing requirements one circumstance to be considered in evaluating the totality of the circumstances. See Odom, 20 Va. App. at 235, 456 S.E.2d at 143. However, imposition, like equitable estoppel, "does not apply where a carrier's or employer's [actions] are consistent with an endeavor to comply with the Act." Id. at 234, 456 S.E.2d at 143 (citing Cheski v. Arlington County Public Schools, 16 Va. App. 936, 940, 434 S.E.2d 353, 356 (1993)). Such actions include: (1) telling [claimant] that certain documents--a report of the accident, an acknowledgement that [claimant] received a list of approved panel physicians, and the employer's first report of accident--would be filed with the commission, (2) requiring [claimant] to use a panel physician, (3) requiring her to seek approval before changing physicians, (4) requiring her to participate in vocational rehabilitation assessments, . . . and (7) recognizing that she was entitled to workers' compensation benefits. Cheski v. Arlington County Pub. Schs., 16 Va. App. 936, 939-40, 434 S.E.2d 353, 355 (1993). Acts of employer which fail to permit application of the doctrine of estoppel also do not permit application of the doctrine of imposition. Although expiration of the statute of limitations on this claim was unfortunate, it did not result from employer's or the commission's use of superior knowledge or economic leverage. To create an exception to the bar of the statute of limitations under circumstances such as these would, in effect, allow the exception to swallow the rule. Aundra N. Jenkins v. Ford Motor Company, Record No. 0092-97-1 (May 5, 1998).

The commission did not err in rejecting the application of the imposition doctrine. 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.'" Butler v. City of Va. Beach, 22 Va. App. 601, 605, 471 S.E.2d 830, 832 (1996) (quoting Odom v. Red Lobster No. 235, 20 Va. App. 228, 234, 456 S.E.2d 140, 143 (1995)) (additional citation omitted). The doctrine empowers the commission to "do full and complete justice," id., and it focuses on the employer's, or the commission's, use of superior knowledge of or experience with the Workers' Compensation Act ("Act"), or use of economic leverage, to unjustly deprive the employee of benefits warranted under the Act. See id. (citing John Driggs Co. v. Somers, 228 Va. 729, 734-35, 324 S.E.2d 694, 697 (1985); Odom, 20 Va. App. at 235, 456 S.E.2d at 143). In order for the doctrine to apply, the record must show "a series of acts by the employer or the commission upon which a claimant naturally and reasonably relies to his or her detriment." Butler, 22 Va. App. at 605, 471 S.E.2d at 832 (citing Odom, 20 Va. App. at 235, 456 S.E.2d at 143). The record in this case contains no such "series of acts by the employer or the commission upon which [claimant] naturally and reasonably relie[d] to his . . . detriment." Id. Claimant has pointed to no affirmative statements on the part of either the carrier or employer that led him to believe he need not file a claim. On the contrary, employer's nurse on at least one occasion asked him whether he had done so, and the accident report claimant initially completed provided him with the address and telephone number of the commission, which claimant promptly used to contact the commission. Moreover, when claimant's doctor told claimant that he ought to file a claim, claimant had almost two months remaining in the statutory period to file his claim. Claimant contacted the commission the same day his doctor advised him to do so, and on this occasion the representative told him he should, indeed, complete and submit a claim form. Claimant thus plainly had notice, almost two months before the expiry of the limitations period, that he needed to file a claim. He failed to do so. Compare Odom, 20 Va. App. at 232-33, 456 S.E.2d at 142 (claimant only received notice of need to file a claim after the limitations period had run). Although claimant claims that he received little or no encouragement to file a claim prior to the running of the limitations period, the evidence shows clearly that he was aware of the need to file a claim within a month of his injury and that he was told almost two months before the limitations period ran, by both his doctor and by an unnamed representative of the commission, that he had to file a claim. The commission also did not err in finding that although employer's carrier filed the required accident report, Form 45-A, nearly three months late, claimant's claim was not prejudiced, and the tolling provisions of Code Sec. 65.2-602 should not be applied to extend his filing period. Code Sec. 65.2-602 acts to toll the statute of limitations under the following circumstances: 1) where the employer pays wages or compensation for incapacity related to a work injury after receiving notice of injury; or 2) where the employer fails to timely file the accident report and that failure operates to prejudice the employee's claim. Cf. Bristol Newspapers, Inc. v. Shaffer, 16 Va. App. 703, 706-07, 432 S.E.2d 23, 25 (1993) (the three criteria of the tolling provision of Code Sec. 65.2-602 are notice to the employer of claimant's compensable injury, specified conduct by the employer, and prejudice to the claimant). The sole question on review is whether claimant was prejudiced by the late filing of Form 45-A. Claimant has failed to provide any evidence whatsoever demonstrating that the delay in the filing of Form 45-A adversely affected his claim. Daniel W. Page v. Lynchburg Foundry Company, Record No. 1490-99-3 (March 7, 2000). WP Version.

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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