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STATUTE OF LIMITATIONS

See Estoppel,  Imposition

Buenson Division, Aeronca, Inc. v. McCauley, 221 Va. 430, 434 n.2, 270 S.E.2d 734, 736 n.2 (1980) (noting that a new statute with retroactive applicability cannot act to revive a "dead claim"); Dan River, Inc. v. Adkins, 3 Va. App. 320, 326, 349 S.E.2d 667, 670 (1986) (citing Buenson Division, 221 Va. at 434 n.2, 270 S.E.2d at 736 n.2).

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 Virginia 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 requirement is 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 Pub. Schs., 16 Va. App. 936, 939-40, 434 S.E.2d 353, 355-56 (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, 16 Va. App. at 939-40, 434 S.E.2d at 355.

In Miller v. Locher Silica Corporation, 12 Va. App. 1213, 1216-17, 408 S.E.2d 566, 567-68 (1991), the court upheld the commission's dismissal of claimant’s claim for the occupational disease of silicosis on the ground that the commission lacked jurisdiction to consider the claim because it was not filed within five years of the last injurious exposure as required by Code Sec. 65.1-52(3) (now Code Sec. 65.2-406(A)(5)). In so holding, the court found that "Code Sec. 65.1-52[(3)] [now Code Sec. 65.2-406(A)(5)] does not contravene any of [the employee's] rights to due process and equal protection." Miller, 12 Va. App. at 1215, 408 S.E.2d at 567.

"The right to compensation under [the Workers' Compensation Act] shall be forever barred, unless a claim be filed with the Commission within two years after the accident." Code Sec. 65.2-601. This filing requirement is jurisdictional, serving more than a merely notice function. "The jurisdictional nature of a filing under Code Sec. 65.1-87 [now Sec. 65.2-601] is not affected by any notice that may previously have been given to the employer." If a claimant files an initial claim after the two year period, unless the statute of limitations was tolled or the doctrine of estoppel applied, claimant's application was time-barred. Garcia v. Mantech Int'l Corp., 2 Va. App. 749, 755, 347 S.E.2d 548, 551 (1986); see Leonard v. Arnold, 218 Va. 210,215, 237 S.E.2d 97, 100 (1977). Claims have been barred under this section when the wrong employer was named, Garcia, 2 Va. App. at 749, 347 S.E.2d at 548, and when an additional injury from the same accident was not stated in the application. Shawley v. Shea-Ball Constr. Co., 216 Va. 442, 219 S.E.2d 849(1975).

What is a "Claim."  The commission did not err in determining that claimant filed a timely claim for benefits before expiration of the statute of limitations because the documents claimant filed contained sufficient information to constitute a claim.
    The Workers' Compensation Act (Act) provides that "[t]he right to [workers'] compensation [benefits] under [Title 65.2] shall be forever barred, unless a claim be filed with the Commission within two years after the accident." Code Sec. 65.2-601. The timely filing of an original claim is jurisdictional, and a claimant bears the burden of proving his claim was timely filed. E.g., Binswanger Glass Co. v. Wallace, 214 Va. 70, 73, 197 S.E.2d 191, 193 (1973). Filing with the employer or anyone else is insufficient; the claim must be filed with the commission in order to be considered timely. See Cheski v. Arlington County Pub. Schs., 16 Va. App. 936, 938, 434 S.E.2d 353, 355 (1993). 
    "The basic nature of the notice required by [the Workers' Compensation Act] and the necessity for an applicable jurisdictional limitation are apparent. Such notice is often the first knowledge that an employer and his insurance carrier have of an accident and of their potential liability. It is this notice that sets in motion the machinery to determine whether or not an employee has in fact been injured, the nature of the injury, whether it arose out of and in the course of his employment, whether permanent or temporary, and whether compensable or not. This is the notice which activates the right of the employee to compensation and which invokes the jurisdiction of the . . . Commission." Binswanger, 214 Va. at 73, 197 S.E.2d at 194. Despite requiring the timely filing of a "claim," the Act "does not give a definition of 'claim.'" Garcia v. Mantech Int'l Corp., 2 Va. App. 749, 752, 347 S.E.2d 548, 550 (1986).  The commission disseminates a standardized claim form on which an injured employee may report an industrial injury, but neither the Act nor the commission's rules require that a claim must be filed on that or any other form. See Code Secs. 65.2-600, 65.2-601. Commission Rule 1.1 provides as a guide that: An original claim for benefits shall be in writing, signed and should set forth: 1. Employee's name and address; 2. Employer's name and address; 3. Date of accident . . . ; 4. Nature of injury . . . ; 5. Benefits sought: temporary total, temporary partial, permanent total, permanent partial or medical benefits; [and] 6. Periods of disability, if appropriate. (Emphasis added). "[T]he word 'shall[]' is primarily mandatory," whereas "[t]he word 'should' ordinarily . . . implies no more than expediency . . . [and is] directory only." Brushy Ridge Coal Co. v. Blevins, 6 Va. App. 73, 78, 367 S.E.2d 204, 206 (1988) (in evaluating adequacy of request for review filed pursuant to former Commission Rule 2(A), holding that use of word "should" in rule does not prevent commission from obtaining jurisdiction over issues not raised therein). Thus, Commission Rule 1.1, standing alone, does not automatically exclude from consideration a claim which omits one or more of the items of information which the rule says a claim "should set forth." 
    As the Court of Appeals previously noted in affirming the decision of the commission to accept as a claim a letter from a claimant's lawyer to the commission, "[t]he [commission] is not bound by technical rules of pleading or practice." Trammel Crow Co. v. Redmond, 12 Va. App. 610, 614, 405 S.E.2d 632, 634 (1991). A letter is sufficient to constitute a claim if it "identif[ies] the employer, the date of the accident, the location of the accident, and the injuries suffered" and "'fairly apprise[s] the commission that a claim [is] being made'" on behalf of the employee. Cheski, 16 Va. App. at 938, 434 S.E.2d at 355 (quoting Redmond, 12 Va. App. at 614, 405 S.E.2d at 634) (emphasis added); see also Chalkley v. Nolde Bros. Inc., 186 Va. 900, 912, 45 S.E.2d 297, 302 (1947) (construing as timely filed claim a letter from counsel representing employer which requested determination of employer's rights and asked that injured boy, argued to be an employee by third-party tortfeasor in related civil suit, and workers' compensation carrier be made parties to the proceedings). Further, as the Court held implicitly in Cheski, these requisites need not be contained in the same document, as long as the documents, when construed together, satisfy the requirements set out in Redmond. Cheski, 16 Va. App. at 938-39, 434 S.E.2d at 354-55 (rejecting argument that "[t]he two letters" from employer's agent which employee sent to commission constituted a claim because "they" did not identify the location of the accident or the injuries suffered and did not fairly apprise the commission that a claim on behalf of the employee was being made). Finally, a claimant need not request a hearing or determination of rights in order for his filing to be considered a claim. See Redmond, 12 Va. App. at 613-14, 405 S.E.2d at 634. 
    Here, claimant simultaneously submitted to the commission a signed, handwritten note and a mostly complete copy of the First Report, previously filed with the commission by employer. Under the above principles,  the evidence supports the commission's determination that these documents, viewed together, contained sufficient information to constitute a claim. Although the signature on claimant's handwritten note was illegible, the note indicated in legible print that "my injury is still being treated," and the accompanying First Report clearly identified a left knee injury sustained by claimant at 1:00 p.m. on October 28, 1997 while working for Massey Builders Supply Corp. The First Report provided addresses for both claimant and employer. The First Report also indicated the injury occurred when claimant slipped and twisted his left knee while "walking down ramp on construction site" in Chesterfield County. Finally, the handwritten note indicated claimant's need, at a minimum, for ongoing medical benefits to cover two additional surgeries, one of which was scheduled for later that same month, to correct an "RSD problem." Thus, claimant's submissions met the minimum requirements of Redmond and Cheski because, construed together, they "identif[ied] the employer, the date of the accident, the location of the accident, and the injuries suffered," and "fairly apprise[d] the commission that a claim [for benefits was] being made."  
    Thus, had the claim been properly handled by the commission, its filing would have triggered official notice to employer, as contemplated by the Court in Binswanger when it noted that such filing "is often the first knowledge that an employer and his insurance carrier have of an accident and their potential liability." 214 Va. at 73, 197 S.E.2d at 194. That claimant did not personally prepare the First Report, a copy of which employer previously had filed with the commission, or refer to the report in his accompanying note is not dispositive; as the claimant asserts, it was the content of the document, not its status as a First Report, that was relevant to the statute of limitations issue. Further, as the commission appropriately found, the fact that commission employees erroneously concluded claimant's injury had not previously been reported, which caused it to view the documents as an incomplete First Report submitted by the employer rather than as an original claim for benefits from the employee, was not controlling. Undisputed evidence established that claimant's submissions, though improperly interpreted, were received by the commission prior to expiration of the statute of limitations and met the minimum requirements for an original claim for benefits. For these reasons, the commission properly interpreted claimant's submissions as a timely claim for benefits. Massey Builders Supply v. Waverly Gerald Colgan, Record No. 0234-01-2 (October 9, 2001). WP Version.

Claimant suffered a work-related accident wherein she sustained a compensable right shoulder injury. The claim of a right shoulder injury was accepted as compensable and the commission entered an award. Claimant underwent surgery on her right shoulder, but continued to have pain. She was ultimately diagnosed as having a cervical disc condition sustained in her compensable accident. Claimant, however, did not file a new claim with the commission within two years of the accident. Because claimant did not file a timely claim pursuant to Code Sec. 65.2-601 with respect to the cervical disc injury, a claim for the cervical injury, in and of itself, was barred by the applicable statute of limitations under the Supreme Court's ruling in Shawley v. Shea-Ball Construction Co., 216 Va. 442, 219 S.E.2d 849 (1975). Quality Inn Executive v. Zoila L. Umana, Record No. 1593-98-4 (June 15, 1999). WP Version.

In order to toll the limitations period pursuant to Code Sec. 65.2-602, claimant was required to prove that (1) the employer had notice of the accident; (2) the employer failed to file the First Report of Accident as required by Code Sec. 65.2-900; and (3) such conduct prejudiced claimant's rights with respect to filing a claim with the commission prior to the expiration of the two-year limitations period. Giant Food, Inc.  v. Martin R. Roof, Record No. 2189-94-4  (May 9, 1995).

The evidence supported the commission's finding that the two year statute of limitations for filing claims, see Code Sec. 65.2-601, was tolled pursuant to Code Sec. 65.2-602. On June 18, 1993, claimant sustained an injury by accident to her back arising out of and in the course of her employment. Claimant was disabled for various periods through March 4, 1996. Employer received notice of the accident on the day of the accident and paid compensation benefits through September 10, 1994. Employer untimely filed the first report of accident on June 30, 1994 (See Code Sec. 65.2-900; 16 VAC 30-90-30(A) (requiring the first report to be filed within 10 days of the injury)) and the commission mailed the compensation guide to claimant on July 13, 1994. Claimant filed her claim for benefits in August 1995. Whenever claimant incurred medical expenses or lost time from work her supervisor told her "to file the workers' comp," which she understood to mean that she was required to complete and return the various paperwork to the insurance company. Claimant testified that she did not file a claim because "[she] was getting paid . . . [and because she] was seeing [her] physician all the time and [the Hospital was] paying [her] the whole time [she] was injured." In pertinent part Code Sec. 65.2-602 provides as follows: In any case where an employer has received notice of an accident resulting in compensable injury to an employee . . . , and whether or not an award has been entered, such employer nevertheless has paid compensation or wages to such employee during incapacity for work . . . or the employer has failed to file the report of said accident with the . . . Commission as required by [Code] Sec. 65.2-900, and such conduct of the employer has operated to prejudice the rights of such employee with respect to the filing of a claim prior to expiration of a statute of limitations otherwise applicable, such statute shall be tolled for the duration of such payment or, as the case may be, until the employer files the first report of accident . . . or [the employee] has received after the accident a workers' compensation guide . . . . "Thus, notice, specified conduct and prejudice are the 'three criteria' that must be established by [an employee] seeking relief pursuant to . . . [the] statute." Bristol Newspapers, Inc. v. Shaffer, 16 Va. App. 703, 706, 432 S.E.2d 23, 25 (1993). Claimant did not file her claim earlier because she had completed and sent the paperwork to the Hospital that her supervisors told her was necessary "to file the workers' comp." Evidence supported the finding that claimant was prejudiced and that the statute was tolled until the Hospital filed its first report of accident. Furthermore, as held in Commonwealth Medical Institute v. Stop-Headstart Program, 18 Va. App. 461, 453 S.E.2d 566 (1994), claimant's "receipt of the guide did not retrospectively eliminate the tolling of the statute of limitations which had already occurred." Id. at 463, 453 S.E.2d at 566. Fairfax Hospital and Inova Health v. Post, Record No. 1012-99-4 (January 27, 2000). WP Version.

Section 65.2-708 is not a statute of limitations in the ordinary sense. See Binswanger Glass Company v. Wallace, 214 Va. 70, 197 S.E.2d 191 (1973). Rather Sec. 65.2-708 provides that a change in condition entitling the claimant to additional disability benefits must occur within two years from the last day for which compensation was paid pursuant to an award.

Code Sec. 65.2-708 requires that claimant's application alleging a change in condition be filed within twenty-four months of the last day for which compensation was paid. Code Sec. 65.2-708 (A) plainly and unambiguously provides that an award shall not be reviewed "after twenty-four months from the last day for which compensation was paid," not twenty-four months from the last day on which compensation was received. Gladys Phyllis Rose Shelton   v. University of Virginia, Record No. 1498-95-2 (November 7, 1995)

Code Sec. 65.2-708, which governs the filing of change-in-condition applications, requires that the application be filed within twenty-four months from the last date for which compensation was paid pursuant to an award. Code Sec. 65.2-708(C) provides the following tolling provision: All wages paid, for a period not exceeding twenty-four consecutive months, to an employee (i) who is physically unable to return to his pre-injury work due to a compensable injury and (ii) who is provided work within his capacity at a wage equal to or greater than his pre-injury wage, shall be considered compensation. This tolling provision was designed to prevent employers from lulling partially disabled workers into a false sense of security during this two year period by providing employees light duty work at their pre-injury wage for two years and then terminating the employee without liability for future disability benefits. Scott v. Scott, 16 Va. App. 815, 819, 433 S.E.2d 259, 262 (1993). Thus, a partially disabled employee who meets the conditions outlined in parts (i) and (ii) "is afforded an additional twenty-four months before the statute of limitations . . . begins to run." Greene v. Gwaltney of Smithfield, Inc., 13 Va. App. 486, 492, 413 S.E.2d 650, 654 (1992). See also Mitchell v. Phoenix Dev. Corp., VWC No. 147-04-73 (June 28, 1994) (tolling provision did not apply where employer had no knowledge of claimant's restrictions). Code Sec. 65.2-708(C) applies to a light duty or selective employment situation. If an employee, despite restrictions, can perform his or her pre-injury work for pre-injury wages, those wages are not considered compensation under the tolling provision. Hanh Nguyen  v.  Fairfax County Board of Supervisors, Record No. 3164-96-4 (December 2, 1997).

The statute of limitations of Code Sec. 65.2-708 barred claimant's request to reinstate  benefits that had been suspended for unjustifiably refusing medical treatment effective September 12, 1997. Alleging she had cured her prior refusal of medical care, on October 10, 2000, more than two years after compensation was last paid, the worker filed an application to reinstate benefits.  Code Sec. 65.2-708 required the worker to file a change in condition application within two years from the last date compensation was paid.  Armstrong Furniture v. Elder, 4 Va. App. 238, 241, 356 S.E.2d 614, 615 (1987).  That was September 12, 1997.  The worker filed her application October 10, 2000, more than two years after she was last paid compensation.  The application was not timely and was barred by the statute of limitations.  Hercules, Inc. v. Carter, 13 Va. App. 219, 409 S.E.2d 637, aff'd en banc, 14 Va. App. 886, 419 S.E.2d 438 (1992) does not control this case because it was decided before the 1991 amendment the definition of "change in condition" that inserted the term "suspended":  "any change in the conditions under which compensation was awarded, suspended, or terminated . . . ."  Code Sec. 65.2-101 (emphasis added).  With that amendment, the rationale of Hercules commanded a different result.  Code Sec. 65.2-708 had not applied to suspended awards because the definition of "change of condition" did not include the term "suspended."  However, the code section would apply to suspended awards after the General Assembly inserted the term into that definition.  Kim Branch Harris v. Va. Beach General Hosp., Record No. 2750-01-1 (April 23, 2002). WP Version.

Claimant was injured in 1988 and was awarded compensation benefits for various periods, until, in  1991, claimant was given selective employment by the employer at a wage equal to or greater than his pre-injury average weekly wage. More than two years after compensation benefits ended claimant applied for and was awarded permanent partial disability benefits for approximately four months in 1994. In 1997 claimant's doctor took him out of work for about one month and he sought temporary total benefits. The Court of Appeals held the VWC properly found the claim was time barred. Claimant did not file his May 15, 1997 change-in-condition application within twenty-four months from June 5, 1994, the last date for which compensation was paid pursuant to an award. Therefore, unless the tolling provision applied to extend the limitations period beyond May 15, 1997, claimant's application was untimely. Code Sec. 65.2-708(C) delayed the start of the two-year limitations period contained in Code Sec. 65.2-708(A) while employer provided claimant light-duty work and paid him equal to or more than his pre-injury wage for a period not exceeding twenty-four consecutive months. The plain and unambiguous language of this code section tolled the limitations period from April 7, 1991, the date claimant returned to light-duty work provided by  employer at a wage equal to or greater than his pre-injury wage, through April 7, 1993, twenty-four consecutive months later. Thus, the tolling period expired before claimant filed his May 15, 1997 change-in-condition application. The Court of Appeals found no support in the plain language of Code Sec. 65.2-708(C) or the case law for claimant's assertion that the commission erred in refusing to find that the twenty-four month tolling period began to run on June 5, 1994, the date claimant was last paid permanent partial disability benefits. Daniel W. Phelps v. Safeway Stores, Inc., Record No. 1246-98-4 (February 16, 1999).

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).

Code Sec. 65.2-65.2-708 (A) required that a change-in-condition application be filed within twenty-four months from the last day for which compensation was paid. It is undisputed that claimant returned to work October 9, 1995, and did not file her change-in-condition application until November 24, 1997. Accordingly, unless the tolling provision contained in Code Sec. 65.2-708 (C) applied to extend the limitations period beyond October 8, 1997, the commission correctly determined that the claim was not timely filed. Code Sec. 65.2-708 (C) provides that "[a]ll wages paid, for a period not exceeding twenty-four consecutive months, to an employee (i) who is physically unable to return to [her] pre-injury work due to a compensable injury and (ii) who is provided work within his capacity at a wage equal to or greater than his pre-injury wage, shall be considered compensation." The commission found that when claimant returned to work she "was able to perform fully the duties of her pre-injury position." The evidence supports that finding. No evidence proved that when claimant returned to her pre-injury work as a baker and a manager on October 9, 1995, that employer provided her selective employment; that her work-week was reduced from forty to thirty-five hours; or that she was unable to perform the duties of her pre-injury work. Dorah Maeda Ogolo v. Pie Gourmet, Ltd., Record No. 3011-98-4 (June 8, 1999). WP Version.

Claimant filed an application for cost of living supplements (COLA) within two years of receiving a full 500 weeks of compensation benefits. The commission did not err in awarding COLA. COLA supplements are not self-executing, see Jewell Ridge Coal Corp. v. Wright, 222 Va. 68, 71, 278 S.E.2d 820, 822 (1981), however, and to receive cost-of-living supplements, the claimant must file an application pursuant to Code Sec. 65.2-708. Code Sec. 65.2-708 states, "[n]o such review shall be made after twenty-four months from the last day for which compensation was paid, pursuant to an award under this title . . . ." Claimant was clearly within this time frame when she requested cost-of-living supplements. Having determined that the applicable statute of limitations for receiving cost-of-living supplements is found in Code Sec. 65.2-708 and that claimant brought her claim within the limitations period, employer's plea of laches must fail and we do not address the issues of prejudice that it has argued on appeal. As has been stated, [n]o principle is better established, or more uniformly acted on in courts of equity, than that in respect to the statute of limitations- equity follows the law- that is to say, if a legal demand be asserted in equity, which at law is barred by statute, it is equally barred in a court of equity; and if not barred by statute at law, neither is it barred in equity. Rowe v. Bentley, 29 Gratt. 756-759. Coles v. Ballard, 78 Va. 139, 149 (1883) (emphasis added); see United States v. Mack, 295 U.S. 480, 489, 55 S. Ct. 813, 818, 79 L.Ed. 1559 (1935) ("Laches within the term of the statute of limitations is no defense at law."). The commission also did not err in awarding COLA supplements retroactively. The Court in Commonwealth Dept. of Highways and Transp. v. Williams, 1 Va. App. 349, 338 S.E.2d 660 (1986), and the commission, in Rule 1.2(B), have specifically held that the limitation precluding the award of benefits for more than ninety days prior to the filing of a claim under Code Sec. 65.2-708 is not applicable to cost-of-living supplements. We recognized that the commission "has consistently ruled that cost-of-living benefits are not compensation within the meaning of Rule 13(B)." Williams, 1 Va. App. at 356, 338 S.E.2d at 665. The purpose of cost-of-living supplements is "to ensure, as much as possible, that the value of benefits paid under the Act does not diminish due to inflation." Id. at 354, 338 S.E.2d at 664. The Court noted that Bristol Door & Lumber Co. v. Hinkle, 157 Va. 474, 161 S.E. 902 (1932) "was decided long before the Act provided for cost-of-living benefits" and that the concern there was that "if claimants could receive retroactive compensation awards employers might not be given the opportunity to furnish medical or rehabilitative aid at the time a changed condition came about." Id. at 356-57, 338 S.E.2d at 665. "Such concerns, however, are not relevant to cost-of-living entitlements because the determination whether a claimant is entitled to a cost-of-living supplement is not based on any actions which the employer may or may not have taken." Id. at 357, 338 S.E.2d at 665. Furthermore, within the context of change in condition applications, the commission, since Williams, has incorporated Rule 13(B) into Rule 1.2, and in section (B) of that Rule has specifically stated: "Additional compensation may not be awarded more than 90 days before the filing of the claim with the Commission. Requests for cost of living supplements are not subject to this limitation." Rule 1.2(B), Rules of the Virginia Workers' Compensation Commission (emphasis added). Accordingly, retroactive cost-of-living supplements are not limited by Rule 13(B) or the Supreme Court of Virginia's holding in Bristol Door. ARA Health Services and Old Republic Ins. v. Flax, Record No. 1660-99-1 (March 28, 2000). WP Version.

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).

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.

Bristol Newspapers, Inc. v. Shaffer, 16 Va. App. 703, 708, 432 S.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).

Under Code Sec. 65.2-601, a claimant who receives medical benefits but who fails to demonstrate disability during the two-year period may not be awarded temporary total disability benefits. See Mayberry v. Alcoa Bldg. Prods., 18 Va. App. 18, 441 S.E.2d 349 (1994)."A claim for compensation must be filed with the commission within two years after the accident or the claim shall be forever barred." Mayberry v. Alcoa Bldg. Prods., 18 Va. App. 18, 20, 441 S.E.2d 349, 350 (1994). Because the commission never entered an award for work incapacity, claimant's   application cannot be treated as an application for a change in condition. See id. Claimant's application seeking an award of total disability benefits was required to be filed within two years after his  accident. See id. at 20-21, 441 S.E.2d at 350. It was not. Thus, the record clearly supports the commission's finding that claimant's  claim was time-barred. Yousef M. Alkadi  v. Arlington (County of) School  Board, Record No. 1394-98-4 (November 24, 1998).

The commission did not erred in finding that claimant failed to prove that he sustained disability from work causally related to his compensable September 13, 1996 injury by accident within two years from the date of that accident. Before September 24, 1998, no physician limited claimant's ability to work due to his compensable left foot injury. The medical evidence failed to show that claimant incurred any disability causally related to his compensable left foot injury until more than two years after the date of his compensable industrial accident. Mohammed S. Mubaidin v. Holiday Inn Alexandria, Record No. 1963-99-4 (December 28, 1999). WP Version.

The Workers' Compensation Act provides that claimants must file for compensation for occupational diseases within "two years after a diagnosis . . . is first communicated to the employee." Code Sec. 65.2-406(A)(5). The statute "does not require that an employee receive from a physician a communication that his disease is work related." City of Alexandria v. Cronin, 20 Va. App. 503, 508, 458 S.E.2d 314, 317 (1995), aff'd, 252 Va. 1, 471 S.E.2d 184 (1996). It requires only that he "learn that the condition is an occupational disease for which compensation maybe awarded." Id. at 509, 458 S.E.2d at 317. "Whether a diagnosis of an occupational disease was communicated and when the communication occurred are factual determinations." Uninsured Employer's Fund v. Mounts, 24 Va. App. 550, 558, 484 S.E.2d 140, 144 (1997) (citing Roller v. Basic Constr. Co., 238 Va. 321, 329, 384 S.E.2d 323, 326 (1989)); City of Richmond Police Dep't v. Bass, 26 Va. App. 121, 131-32, 493 S.E.2d 661, 666 (1997) .

Where credible evidence established that as early as October 1990, claimant knew that her contact dermatitis was a disease that might be caused by her wearing latex gloves at work, and claimant at that time, took immediate precautions to avoid exposure to latex gloves at work, but did not file her claim until 1997, her claim seeking an award of compensation for an occupational disease of contact dermatitis was not timely filed. Kathryne Smith v. Fairfax Hospital and Inova Health System Foundation, Inc., Record No. 1681-98-4 (Ct. of Appeals, December 8, 1998).

Code Sec. 8.01-246 did not apply because the rehabilitation Center and claimant sought payment of medical expenses incurred for treatment rendered pursuant to a commission award. The application was grounded in the commission's award. The dispute did not involve a common law action founded upon an express or implied unwritten contract. The dispute concerned an employer's duty to pay causally related medical benefits awarded to claimant by the commission. Under these circumstances, the commission correctly ruled that the three-year statute of limitations contained in Code Sec. 8.01-246 did not apply to bar the Center's application. Combustion Engineering, Inc. v. Ernest R. Lafon, Jr. and Center for Rehabilitative Medicine, Record No. 2327-95-3 (April 9, 1996).

The commission correctly concluded that the existence of the specific tolling provisions contained in Code Secs. 65.2-528 and 65.2-602 precluded it from applying Code Sec. 8.01-229(A)(1), a statute of general application, to toll the limitations period in this case. See County of Fairfax v. Century Concrete Servs., Inc., 254 Va. 423, 427, 492 S.E.2d 648, 650 (1997). In addition, the express language of Code Sec. 8.01-229(A)(1) renders it inapplicable to the facts of this case. the commission did not err in concluding that "incarceration is not an 'incapacity' tolling the statute of limitations under Va. Code Ann. Sec. 65.2-528." As the commission correctly acknowledged, "an incarcerated person may still file legal documents, including a change in condition application in his own right, without the appointment of a guardian, trustee, or conservator." See Dunn v. Terry, 216 Va. 234, 239, 217 S.E.2d 849, 854 (1975). Lloyd Raymond Whetzel v. Waste Management of Virginia, Record No. 0352-99-3 (August 10, 1999). WP Version.

The Workers' Compensation Commission did not err in finding that claimant's claim for permanent partial disability benefits was barred by the the thirty-six month mandate of Code Sec. 65.2-708(A)(i). Code Sec. 65.2-708(A)(i) plainly and unambiguously provides that "thirty-six months from the last day for which compensation was paid shall be allowed for the filing of claims payable under Sec. 65.2-503." The date for which compensation was last paid was either February 2, 1995 or August 5, 1995. The statute does not specify thirty-six months from the last day on which compensation was paid. As the commission ruled, whether February 2, 1995, or August 5, 1995, the thirty-six month limitations period expired before claimant filed her application on October 9, 1998. Because claimant filed her application after the applicable limitations period had expired, the commission did not err in dismissing the application. Janie E. Holman v. Southwestern Virginia Mental, Record No. 1516-99-3 (November 9, 1999). WP Version.

Issue of Subject Matter Jurisdiction Raised at Any Time. Subsequently discovered injuries. The commission lacked jurisdiction to award benefits because claimant failed timely to file a claim for injuries to his neck and back arising from an industrial accident of October 22, 1979. Following the accident the only injuries included in the Memorandum of Agreement executed by the parties in 1979 were to claimant's shoulder and forehead. Claimant filed no claim for benefits for back, neck, arm or leg injuries until more than fifteen years after the compensable accident. Claimant contends the back and neck injuries occurred simultaneously with, rather than subsequent to, the accepted shoulder and forehead injuries. This case is distinguishable from the case in which an employee timely files a claim for all injuries incurred in an industrial accident but subsequently develops additional injuries as a "natural consequence" of the industrial accident. See Bartholow Drywall Co. v. Hill, 12 Va. App. 790, 793-94, 407 S.E.2d 1, 3 (1991). "The right to compensation under [the Workers' Compensation Act] shall be forever barred, unless a claim be filed with the Commission within two years after the accident." Code Sec. 65.1-87, 1975 Va. Acts ch. 471; see Barksdale v. H.O. Engen, Inc., 218 Va. 496, 499, 237 S.E.2d 794, 796-97 (1977) (holding that statute of limitations is part of "substantive right to recover" under Act and, therefore, applicable statute of limitations is one in effect when injury occurs). "This is the notice which activates the right of the employee to compensation and which invokes the jurisdiction of the [Workers' Compensation Commission]." Binswanger Glass Co. v. Wallace, 214 Va. 70, 73, 197 S.E.2d 191, 194 (1973) (construing former Code Sec. 65.1-87). "'The right to compensation under the [workers'] compensation law is granted by statute, and in giving the right the legislature has full power to proscribe the time and manner of its exercise.'" Id. at 73, 197 S.E.2d at 193 (quoting Winston v. City of Richmond, 196 Va. 403, 407, 83 S.E.2d 728, 731 (1954)). It is the intent of Code Sec. 65.1-87 that, within the time prescribed by the section, an employee must assert against his employer any claim that he might have for any injury growing out of the accident. . . . Failure to give such notice within [the statutorily prescribed period] would seriously handicap the employer . . . in determining whether or not there was in fact an injury, the nature and extent thereof, and if related to the accident. The reason for the limitation . . . is a compelling one. Shawley v. Shea-Ball Constr. Co., 216 Va. 442, 446, 219 S.E.2d 849, 853 (1975) (emphases and footnote added) (construing former Code Sec. 65.1-87). Thus, in Shawley, the Court held that the commission lacked subject matter jurisdiction to award benefits for injury to the claimant's right ankle and back, where the only injuries for which he filed a timely claim were to his left ankle and right hip. See id. at 443-44, 219 S.E.2d at 851. The Court subsequently noted that "[j]urisdiction [ordinarily] cannot be conferred on the Commission by consent" and that it comes into being "when 'a claim [is] filed' within two years after the accident." Stuart Circle Hosp. v. Alderson, 223 Va. 205, 208-09, 288 S.E.2d 445, 447 (1982). Claimant filed no claim for benefits for back, neck, arm or leg injuries until more than fifteen years after the compensable accident. Accordingly, the commission lacked subject matter jurisdiction to award medical benefits for these injuries. Although the employer failed to raise the jurisdictional defense in an earlier proceeding in 1995, the doctrine of res judicata provides that "[a] valid, personal judgment on the merits in favor of [a party] bars relitigation of the [s]ame cause of action, or any part thereof which could have been litigated, between the same parties and their privies." Bates v. Devers, 214 Va. 667, 670-71, 202 S.E.2d 917, 920-21 (1974) (footnote omitted). However, "[f]or a prior judgment to preclude a subsequent action, . . . the court in the first proceeding must have had jurisdiction over the subject matter of the controversy and the precise issue upon which the judgment was rendered." Lloyd v. American Motor Inns, Inc., 231 Va. 269, 271, 343 S.E.2d 68, 69 (1986) (emphasis added). If a court lacks jurisdiction to render a judgment, the judgment has no preclusive effect. See id. Therefore, the doctrine of res judicata provides no exception to the well accepted principle of law that lack of subject matter jurisdiction may be raised in any court at any time and a judgment rendered by a court lacking subject matter jurisdiction is void ab initio. See Morrison v. Bestler, 239 Va. 166, 169-70, 387 S.E.2d 753, 755-56 (1990). Safeway Stores, Inc. v. Harold E. McGowan, Record No. 0895-99-2 (February 29, 2000). WP Version.

The commission did not err by holding that claimant's claim was not barred by the two-year statute of limitation under Code Sec. 65.2-708(A) or barred by the six-month limitation period under Code Sec. 65.2-510(C). On June 2, 1995, claimant suffered a compensable back injury and was awarded temporary total disability benefits from June 12, 1995 through February 5, 1996, when he returned to light-duty employment. After returning to work, claimant was awarded temporary partial disability, but then claimant unjustifiably refused light-duty work suitable to his capacity. After a hearing, the commission found that claimant had unjustifiably refused light-duty work suitable to his capacity and suspended his benefits pursuant to Code Sec. 65.2-510 as of April 21, 1996, the last day for which compensation had been paid. Claimant then became temporarily and totally disabled and was awarded temporary total benefits. Claimant concedes that he did not cure the refusal of selective employment within within six months from the date he refused selective employment, Code Sec. 65.2-510(C), by accepting the offered selective employment or marketing his residual capacity, see generally Herbert Bros., Inc. v. Jenkins, 14 Va. App. 715, 419 S.E.2d 283 (1992); Thompson v. Hampton Inst., 3 Va. App. 668, 353 S.E.2d 316 (1987). Code Sec. 65.2-510(C) is inapplicable to a change-in-condition application for temporary total disability. Code Sec. 65.2-708(A) requires that a change-in-condition application be filed within twenty-four months from the last day for which compensation was paid. A change in an employee's physical condition that is compensable under Code Sec.  65.2-708 includes, among certain other changes, any "'progression, deterioration, or aggravation'" of a previously compensated injury. Leonard v. Arnold, 218 Va. 210, 213-14, 237 S.E.2d 97, 99 (1977) (quoting 3 Arthur Larson, The Law of Workmen's Compensation, Sec. 81.31 (1976) (construing former Code Sec. 65.1-99)). However, "a new and separate accidental injury" may not be compensated as a change in condition of a previous injury. Id. at 214, 237 S.E.2d at 99. Thus, when an employee seeks compensation under Code Sec. 65.2-708, the employee must prove that the change in condition is "causally connected with the injury originally compensated." King's Market v. Porter, 227 Va. 478, 483, 317 S.E.2d 146, 148 (1984). The language of Code Sec. 65.2-708(A) providing that "[n]o such review shall be made after twenty-four months from the last day for which compensation was paid," is construed to mean that "the change in condition must occur within twenty-four months from the date compensation was last due or paid." Code Sec. 65.2-708(A); Armstrong Furniture v. Elder, 4 Va. App. 238, 241, 356 S.E.2d 614, 615 (1987) (construing former Code Sec. 65.1-99). A claimant is not required by Code Sec. 65.2-708(A) to produce the evidence prior to the expiration of the twenty-four month limitation, so long as the application alleged that a change in condition existed within the time of the filing. See Johnson v. Smith, 16 Va. App. 167, 169-70, 428 S.E.2d 508, 510 (1993); Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 678, 401 S.E.2d 213, 215 (1991). Employer does not dispute that claimant filed his application within twenty-four months from the date that he last received compensation. Employer argues, however, that claimant did not prove that he was totally disabled within the twenty-four month period because the doctors report was dated after 24 months. However, the notion that the date of a medical report or even a doctor's examination must be within this statutory period in order to prove the date of onset of disability is not reasonable. A doctor may conduct an examination and, together with a medical history, render an opinion as to the cause and date of onset of a disability. The June 16, 1998 office note by claimant's treating physician, stated that claimant had been totally disabled since October, 1997, when the doctor reported that a recent MRI revealed a small new recurrent herniated disc. Southwest VA Tire, Inc. v. Mark A. Bryant, Record No. 1492-99-3 (February 29, 2000). WP Version.

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.

Claimant worked as a rigger for the employer when he suffered a compensable injury to his back on January 23, 1993. Claimant's September 27, 1994 claim letter satisfied the two-year filing requirement. It advised the commission that he suffered an injury to his back while working for the employer on January 23, 1993 and stated a claim "for all benefits to which he is or may be entitled" under the Workers' Compensation Act. Claimant, however, did not request a hearing date until June 3, 1997.  It does not matter that a hearing on the claim did not occur in the two-year period. So long as the claimant's notice advises the commission of necessary elements of his claim, "'it activates the right of the employee to compensation and . . . invokes the jurisdiction of the Industrial Commission.'" Trammel Crow Co. v. Redmond, 12 Va. App. 610, 614, 405 S.E.2d 632, 634 (1991) (attorney's letter to commission, which contains required information, satisfied filing requirement) (quoting Shawley v. Shea-Ball Constr. Co., 216 Va. 442, 446, 219 S.E.2d 849, 852 (1975)). The employee is also not required during the two-year period to prove  his disability . Cf. Southwest Virginia Tire, Inc. v. Bryant, 31 Va. App. 655, 661, 525 S.E.2d 563, 566 (2000) (in change in condition application, claimant not required to produce evidence prior to expiration of two years). Instead, the employee's claim must allege a present and existing disability within two years of the accident, and he must prove that disability to receive benefits. Compare Johnson v. Smith, 16 Va. App. 167, 170, 428 S.E.2d 508, 510 (1993) (commission's denial of benefits reversed where claimant proved disability existed during statute of limitations period), and WLR Foods, Inc. v. Cardosa, 26 Va. App. 220, 229, 494 S.E.2d 147, 151 (1997) (benefits denied because disability did not commence until two years after accident). The fact that the employee did not seek a hearing within two years of the accident does not bar his claim. Nor does the fact that claimant received benefits under the Longshore Act trigger the time limits for filing a change in condition application under Sec. 65.2-708.  In this case, claimant had not received benefits under the Virginia Workers' Compensation Act.  Sec. 65.2-708 requires a change in condition request to be filed within two years of an award of benefits under the Act. See Mayberry v. Alcoa Bldg. Prods., 18 Va. App. 18, 21, 441 S.E.2d 349, 350-51 (1994) (absent entry of formal award there is nothing to review). An award under the LHWCA, however, is not an award under the Workers' Compensation Act. See Virginia Int'l Terminals v. Moore, 22 Va. App. 396, 402, 470 S.E.2d 574, 577 (1996), aff'd, 254 Va. 46, 486 S.E.2d 528 (1997). Sec. 65.2-708 is inapplicable because there was no prior award under the Act to review.  Finally, claimant, still disabled from pre-injury work, is also entitled to benefits although his plant shut down when a contract was lost. "[T]he employer is relieved of its duty to compensate the claimant only if it offers the claimant employment in his or her 'pre-injury capacity' and the claimant has been released to perform the work." Carr, 25 Va. App. at 312, 487 S.E.2d at 881 (disabled employee who accepted selective employment but suffered wage loss because there was no opportunity for overtime is still entitled to benefits). "The employer's financial condition . . . do[es] not affect the claimant's right to compensation due to an impaired capacity to perform his pre-injury duties." Consolidated Stores Corp. v. Graham, 25 Va. App. 133, 137, 486 S.E.2d 576, 578 (1997). After an economic layoff from selective employment, an employee remains entitled to benefits until he either fully recovers and is released to pre-injury work, or until the employer offers him other selective employment. See Washington Metropolitan Transit Authority v. Harrison, 228 Va. 598, 600, 324 S.E.2d 654, 655 (1985) (benefits denied because employee failed to prove he marketed his residual work capacity). The employer's reasons for the layoff should not diminish the employee's entitlement to benefits. The employee was injured on the job and his capacity to work reduced. The Workers' Compensation Act "is highly remedial and should be liberally construed to advance its purpose . . . [of compensating employees] for accidental injuries resulting from the hazards of the employment." See Henderson v. Central Tel. Co., 233 Va. 377, 382, 355 S.E.2d 596, 599 (1987) (citations omitted). Until the employee can perform at his pre-injury capacity, he is protected from the economic vicissitudes of the market place. The employee's layoff due to the employer's economic downturn does not preclude his entitlement to disability benefits. Metro Machine Corporation v. Isaac L. Lamb, Record No. 3044-99-2 (August 15, 2000). WP Version. See also Metro Machine Corporation v. Alvin Sowers, Record No. 0055-00-1 (August 15, 2000). WP Version.

    On May 28, 1993, the commission entered an award in claimant's favor for compensation for permanent partial disability. Benefits were last paid to claimant through January 12, 1994. On January 9, 1997, claimant filed a claim for additional permanent partial disability benefits and to establish her permanent partial disability rating. See Code Sec. 65.2-503.  On September 30, 1997, a deputy commissioner found "that maximum medical improvement has not been reached" and concluded, "[t]herefore, the instant claim is premature." The deputy's opinion further stated that "the Claim for Benefits is denied" and "[t]he case is ordered removed from the docket." Although the deputy commissioner's opinion advises that claimant "may appeal this decision by filing a request for review . . . within twenty days from the date of this opinion," the deputy commissioner's ruling did not dismiss claimant's claim.  By letter dated March 11, 1998, which was filed on March 16, 1998, claimant requested that the matter be rescheduled for a hearing.  The commission erred in holding that this new request was untimely because it was filed more than three years from the date for which claimant was last paid compensation.
    The deputy commissioner's September 30, 1997 ruling was not a final order barring claimant's right to establish that she attained maximum medical improvement at a future date. See Rusty's Welding Service, Inc. v. Gibson, 29 Va. App. 119, 131, 510 S.E.2d 255, 261 (1999) (en banc), rev'g 27 Va. App. 733, 501 S.E.2d 444 (1998).  It left for later determination the point in the future at which claimant would actually attain maximum medical improvement. See Holly Farms Foods, Inc. v. Carter, 15 Va. App. 29, 34-35, 422 S.E.2d 165, 167 (1992).
    Where, as here, an employee suffers the loss of use of a scheduled body member, the compensation provided by [Code Sec. 65.2-503] is not awardable "until the injury has reached a state of permanency, i.e. maximum improvement, when the degree of loss may be medically ascertained." In other words, before [Code Sec. 65.2-503] benefits are awardable, it must appear both that the partial incapacity is permanent and that the injury has reached maximum medical improvement. County of Spotsylvania v. Hart, 218 Va. 565, 568, 238 S.E.2d 813, 815 (1977) (citations omitted). When the deputy commissioner found on September 30, 1997 that claimant's "claim [was] premature" because she had not then reached maximum medical improvement, that ruling was supported by credible evidence and was interlocutory regarding her future condition. did not bar claimant from proving at a later time that she attained maximum medical improvement after September 30, 1997.  See Dancy v. Georgia Pacific Corp., 76 VWC 446, 448 (1997) (holding that the commission will "usually" not review interlocutory orders because they are premature). Thus, the deputy commissioner's ruling that "the Claim for Benefits is denied" was retrospective, and it was interlocutory as to claimant's future condition.  The deputy commissioner's further ruling that "[t]he case is ordered removed from the docket" only had the effect of removing the matter from the hearing docket. It did not dismiss the claim. See Keenan v. Westinghouse Elevator Co., 10 Va. App. 232, 235, 391 S.E.2d 342, 344 (1990) (holding that an order removing a case from the hearing docket is not ipso facto a dismissal of the claim).  The fact that the commission might have exercised its discretion to review the removal of the case from the hearing docket also does not convert the deputy commissioner's decision to a final order barring future determination of maximum medical improvement. See City of Richmond Fire & Emergency v. Brandon, 32 Va. App. 787, 789, 531 S.E.2d 22, 22-23 (2000) (refusing to assume jurisdiction over an appeal of a discovery order because it was interlocutory); Hanlovitch v. Chesapeake Gen. Hosp., 75 VWC 293, 295 (1996).  The deputy commissioner's removal of the matter from the hearing docket was no more than a procedural ruling which invoked only the possibility of interlocutory review. See id. The commission's rules do not specify that the mere act of removing a case from the hearing docket constitutes a dismissal of the claim or an act that converts an otherwise interlocutory procedural decision into a final decision. See Metro Machine Corp. v. Sowers, 33 Va. App. 197, 205-06, 532 S.E.2d 341, 346 (2000) (noting that there appears to be a difference in some circumstances between filing a claim and merely requesting a hearing). Indeed, the commission's rules contain no clear statement concerning the effect of removing a case from the hearing docket.
    This case is controlled by the Court's holding in Rusty's Welding Service, Inc. v. Gibson, 29 Va. App. 119, 510 S.E.2d 255 (1999) (en banc), rev'g 27 Va. App. 733, 501 S.E.2d 444 (1998).  In Gibson, a deputy commissioner "DENIED" the claim, finding that "on the evidence before us we cannot conclude that maximum medical improvement has been reached and accordingly deny permanent partial disability benefits at this time." 27 Va. App. at 736, 501 S.E.2d at 445. The employee did not seek review of that ruling. Instead, the employee later filed another application for hearing and proved he had then reached maximum medical improvement. The commission upheld the deputy commissioner's award to the employee for permanent partial benefits and ruled that the deputy's earlier ruling denying benefits "'at this time' . . . left the issue of permanent partial disability unresolved for future determination." 29 Va. App. at 127, 510 S.E.2d at 259.  Because the deputy commissioner's September 30, 1997 denial of claimant's claim was an interlocutory decision concerning maximum medical improvement and did not "dismiss" her claim, we hold that the commission retained jurisdiction over the claim. The claim was "premature" and, thus, "the issue [was] left open for future determination." Mercy Tidewater Ambulance Serv. v. Carpenter, 29 Va. App. 218, 228, 511 S.E.2d 418, 423 (1999).  Thus, the fact that claimant reached maximum medical improvement on May 8, 1998 is not a bar to recovery because her original application was filed within the three-year limitation. Mary Peggy Brown v. United Airlines, Inc., Record No. 0485-00-4 (January 30, 2001). 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.

    The commission erred in concluding that claimant's request for review was untimely because it was not filed within twenty days of his attorney's receipt by certified mail of a copy of the deputy commissioner's opinion, as required by Code Sec. 65.2-705(A).   Code Sec. 65.2-705(A)'s twenty-day limitation period for filing a request for review begins to run only when, as required by Code Sec. 65.2-704(A), the party, rather than the party's attorney, receives a copy of the deputy commissioner's opinion by registered or certified mail.    
    On March 2, 1999, following a hearing on claimant's claim on February 4, 1999, at which claimant was represented by counsel, the deputy commissioner issued an opinion denying claimant's claim under both theories of recovery.  That same day, the commission mailed copies of the deputy commissioner's opinion by certified mail to counsel of record for the parties and by regular first-class mail to the parties.  Claimant's counsel received a copy of the opinion by certified mail on March 4, 1999.  Having no prior knowledge of the deputy commissioner's ruling, claimant received a copy of the opinion by regular first-class mail on March 6, 1999.
    On March 25, 1999, claimant, proceeding pro se, filed a request for review of the deputy commissioner's opinion by the full commission.  By letter dated March 31, 1999, the chief deputy commissioner rejected claimant's request for review, ruling that the commission lacked jurisdiction to hear the requested review because claimant's request for review was not filed within twenty days of his attorney's receipt by certified mail of the deputy commissioner's opinion. 
    Code Sec. 65.2-704(A) provides, in pertinent part, as follows: The Commission or any of its members or deputies shall hear the parties at issue, their representatives, and witnesses; shall decide the issues in a summary manner; and shall make an award or opinion carrying out the decision.  A copy of the award or opinion shall be sent immediately to the parties at issue by registered or certified mail.
    Code Sec. 65.2-705(A) provides, in pertinent part, as follows:    If an application for review is made to the Commission within twenty days after receipt of notice of such award to be sent as provided in subsection A of Sec. 65.2-704, the full Commission . . . shall review the evidence or, if deemed advisable, as soon as practicable, hear the parties at issue, their representatives, and witnesses.
    The dispositive question in this case is whether, as the commission concluded, Code Sec. 65.2-705(A)'s twenty-day limitation period began to run on March 4, 1999, when claimant's attorney of record received a copy of the deputy commissioner's March 2, 1999 opinion by certified mail.  If so, claimant's request for review filed March 25, 1999 was untimely and the commission had no jurisdiction to review the matter. 
    The parties agree that, because Code Sec. 65.2-705(A) provides that the twenty-day limitation period for filing a request for review begins to run upon receipt of notice of an award or opinion "sent as provided in subsection A of Sec. 65.2-704," and because Code Sec. 65.2-704(A) requires that a copy of the award or opinion be sent "to the parties at issue by registered or certified mail," resolution of the question of when the limitation period began to run in this case turns on the construction of the term "the parties at issue" as used in the directive set forth above.
    The language of both Code Sec. 65.2-704(A) and Code Sec. 65.2-705(A) is clear and unambiguous.  The first sentence of Code Sec. 65.2-704(A) provides, inter alia, that the commission "shall hear the parties at issue, their representatives, and witnesses."  The second sentence of Code Sec. 65.2-704(A) reads, "A copy of the award or opinion shall be sent immediately to the parties at issue by registered or certified mail."  Code Sec. 65.2-705(A) provides, inter alia, that, if a request for review is timely filed, the full commission shall "hear the parties at issue, their representatives, and witnesses" and, upon reaching a decision, immediately send a copy of the award "to the parties at issue."  This language draws a clear distinction between "the parties at issue" and "their representatives."
    Had the legislature intended that the sending of a copy of an opinion or award to the party's attorney of record be considered the equivalent of sending a copy to the party, the legislature could have so indicated, but it did not.  Indeed, in specifically providing in Code Sec. 65.2-715 that the commission must provide copies of its opinions to the parties and to their counsel, the legislature has indicated otherwise.  Code Sec. 65.2-715 provides:  Whenever, in the course of proceedings in connection with awards, the Workers' Compensation Commission issues any written notice, opinion, order or award regarding a specific case, the Commission shall provide copies to the employee, the employer and the compensation carrier, and, if represented, their counsel, at the same time.
    This statute reinforces the notion that, for purposes of notice, the legislature intended to treat the parties and their counsel as separate entities. Therefore, Code Sec. 65.2-704(A) means what it plainly says, namely, that a copy of the award or opinion must be sent by registered or certified mail to the parties themselves.  Such a literal construction does not yield an absurd result.  Conversely, affirming the contrary statutory construction employed by the commission, and sought by employer, would require us to extend the Workers' Compensation Act's provisions beyond their obvious meaning and to hold that the legislature did not mean what it actually expressed.  If such a change is to be made, it is for the legislature to undertake, not the courts.  Thus, the sending of a copy of an opinion by certified mail solely to a party's attorney of record, as occurred in this case, does not satisfy Code Sec. 65.2-704(A)'s mandate that "[a] copy of the award or opinion . . . be sent . . . to the parties at issue by registered or certified mail."
    Code Sec. 65.2-705(A)'s twenty-day limitation period for requesting review of an award or opinion of the commission begins to run when the party, rather than the party's attorney of record, receives a copy of the award or opinion by registered or certified mail.  Thus, because claimant never received a copy of the deputy commissioner's March 2, 1999 opinion by registered or certified mail, as required by Code Sec. 65.2-704(A), Code Sec. 65.2-705(A)'s limitation period never began to run with respect to his request for review filed March 25, 1999.  Hence, claimant's request for review was timely, and the full commission had jurisdiction to review the deputy commissioner's March 2, 1999 opinion.  Michael B. Peacock v. Browning Ferris, Inc., Record No. 1772-01-2 (May 14, 2002). WP Version.

    The commission did not err when it found claimant's claim did not meet the requirements of Code Sec. 65.2-406 because he filed the claim more than two years after he received a diagnosis of an occupational disease.  Claimant began working for the York County Fire and Rescue Department in 1973.  Claimant remained employed with the Fire and Rescue Department until 1999.  He filed a claim for benefits on October 21, 1999, alleging he had contracted an occupational disease, hypertension.
    In a 1995 examination claimant had a blood pressure reading of 190/100.  He was diagnosed with "hypertension, stage II."  Dr. Hollingsworth placed claimant on hypertension medicine, indicating he would discuss treadmill tests with the fire chief "before this patient can be cleared for the Fire Department."  On January 23, 1996, Dr. Bryant examined claimant. Dr. Bryant confirmed Dr. Hollingsworth's diagnosis of "hypertension" and again prescribed hypertension medication.  Claimant's blood pressure was 221/110.  On January 25, 1996 Dr. Bryant recommended the same hypertension medication, but at an increased dosage, and advised claimant "he would not be able to work if the [blood pressure] was not well controlled."  Dr. Bryant listed claimant's primary problem as "severe hypertension with poor compliance."  Claimant received follow up treatments for hypertension and related illnesses with Dr. Bryant on February 2, 1996, February 8, 1996, March 5, 1996, May 29, 1996, and February 25, 1997.  On January 13, 1998 the doctor diagnosed severe hypertension.  Dr. Bryant also had a "[l]engthy discussion with [claimant] on the importance of compliance with [medications], diet and exercise."
    Claimant testified that prior to his January 13, 1998 appointment with Dr. Bryant, he never received a diagnosis or information from any source, including Dr. Bryant, that he was suffering from hypertension.  Claimant testified he did not understand he was suffering from hypertension until January 1998, when Dr. Bryant allegedly told him that his hypertension was caused by his work at the fire department and that claimant needed to retire. Claimant had been president of his local union.  He worked with the International Association of Firefighters and the Virginia Professional Firefighters developing legislation on presumptive occupational disease claims.  Claimant testified he was aware, prior to January 1998, that he was afforded special workers' compensation coverage for the disease of hypertension. Claimant acknowledged he had known for at least fifteen years that hypertension "is a condition that's covered under the presumption under Workers' [Compensation Act] that you as a firefighter would be entitled to." Claimant testified that if a doctor had diagnosed him with hypertension prior to January 1998, he would have filed his claim earlier.
    Code Sec. 65.2-406(A) states, in part:
The right to compensation under this chapter shall be forever barred unless a claim is filed with the commission within one of the following time periods:
*      *      *      *      *      *      *
5.  For all other occupational diseases [including hypertension], two years after a diagnosis of the disease is first communicated to the employee or within five years from the date of the last injurious exposure in employment, whichever first occurs.
    This filing requirement is jurisdictional.  Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 401, 374 S.E.2d 695, 696 (1988); Musick v. Codell Constr. Co., 4 Va. App. 471, 473, 358 S.E.2d 739, 740 (1987) (citing Anderson v. Clinchfield Coal Co., 214 Va. 674, 675, 204 S.E.2d 257, 258 (1974)).  "Moreover, the burden is upon the claimant to prove compliance with the statute."  Hawks, 7 Va. App. at 401, 374 S.E.2d at 697.
    "Whether a diagnosis of an occupational disease was communicated and when the communication occurred are factual determinations to be made by the commission upon the evidence.  Upon appellate review, the findings of fact made by the commission will be upheld when supported by credible evidence."  Uninsured Employer's Fund v. Mounts, 24 Va. App. 550, 558, 484 S.E.2d 140, 144 (1997) (citations omitted), aff'd on other grounds, 255 Va. 254, 497 S.E.2d 464 (1998).  See also A. G. Van Metre, Jr., Inc. v. Gandy, 7 Va. App. 207, 215, 372 S.E.2d 198, 203 (1988).
    Credible evidence supports the commission's finding that claimant was diagnosed with hypertension as early as 1995.  See Dan River, Inc. v. Giggetts, 34 Va. App. 297, 302, 541 S.E.2d 294, 296 (2001). Claimant's own testimony proved he knew "hypertension was high blood pressure."  Even if he did not, "a physician is not required to utilize precise medical terminology to communicate the existence of occupational disease in order to trigger the obligation to file a claim."  Hawks, 7 Va. App. at 403, 374 S.E.2d at 697 (finding an employee received communication of the occupational disease interstital fibrosis when a doctor informed the employee that he had "scarring" of the lungs).  Claimant's medical records indicate Dr. Bryant repeatedly diagnosed hypertension, prescribing medications and behavioral changes to bring the condition under control.
    Code Sec. 65.2-406(A)(5) requires communication of two distinct facts:  (1) a diagnosis of the disease; and (2) the disease is an "occupational disease."  Code Sec. 65.2-400 defines an "occupational disease" as "a disease arising out of and in the course of employment, but not an ordinary disease of life to which the general public is exposed outside of the employment."
    A diagnosis of an occupational disease is not completely communicated to an employee until he receives information indicating the disease is "one 'arising out of and in the course of the employment.'"  Garrison v. Prince William County Bd. of Supervisors, 220 Va. 913, 917, 265 S.E.2d 687, 689 (1980) (citing Code Sec. 65.1-46, a previous version of Code Sec. 65.2-400)  (holding the statute of limitations did not bar a claim filed in 1978, where the employee was told he had hypertension in 1975, but he was not told hypertension arose out of and in the course of his employment).  The determinative issue here, therefore, is whether the diagnosis of hypertension  as an "occupational disease" was communicated to claimant prior to October 21, 1997, two years before the filing of his claim.
    No physician communicated to claimant that a nexus existed between his hypertension and his job prior to the appointment with Dr. Bryant in January 1998.   However, this fact does not end our inquiry.  It must be determined when claimant was informed that hypertension is an occupational disease.
    Communication of an occupational disease need not come from a medical doctor.  In Ratliff v. Dominion Coal Co., 3 Va. App. 175, 179, 349 S.E.2d 147, 149 (1986), the Court held a letter from the United States Department of Labor, informing a miner that he was disabled under the Black Lung Benefits Act, constituted "a medical determination of total disability due to pneumoconiosis" and triggered the running of the Virginia statute of limitations for workers' compensation benefits.  The Court rejected Ratliff's argument "that the Department of Labor letter was an administrative or legal determination, but not a 'medical determination.'"  Id.  The Court further explained that Ratliff knew or should have known after receiving the letter that, although the letter referred to federal standards, "it was,
nevertheless, incumbent upon Ratliff to file a Virginia claim" of disability due to pneumoconiosis within three years of receiving the letter.   Id. at 180, 349 S.E.2d at 149-50.
    Alexandria v. Cronin, 20 Va. App. 503, 458 S.E.2d 314 (1995), aff'd, 252 Va. 1, 471 S.E.2d 184 (1996)  is dispositive of this case.  In Cronin, Cronin received a formal diagnosis of coronary heart disease in October 1989 and soon thereafter filed with the city for service-connected disability retirement from his job as a firefighter.  Id. at 505, 458 S.E.2d at 315.  Cronin died on February 22, 1992, and his estate filed a claim for benefits with the commission.  Id. at 506, 458 S.E.2d at 315.  The commission concluded Cronin's estate was not barred by the limitation period because Cronin was "not 'medically advised that his condition was causally related to his work.'"  Id. at 507, 458 S.E.2d at 316 (citing the commission's decision).
    In overturning the commission, the Court held:  By interpreting the statute as requiring proof of a communication by a physician of the employee's occupational disease, the commission ignores the fact that, while many employees may receive a diagnosis of his or her disease from a physician, the claimants may receive the communication that such a disease is a compensable occupational disease from someone other than a physician, often an attorney or someone in charge of personnel or administering benefits.  The commission's ruling overlooks practical experience under the Act and the fact that the compensability of an occupational disease is a creation of the legislature.  A physician's diagnosis of an employee's
condition is not dispositive on the issue of compensability and physicians often reach
different conclusions about a condition's origin.
*      *      *      *      *      *      *
Neither the Court of Appeals nor the Supreme Court of Virginia has interpreted Code Sec. 65.2-406(A)(5) as requiring a communication from a physician to trigger the running of the limitations period.  Code Sec. 65.2-406(A)(5) does not require that an employee receive from a physician a communication that his disease requires that the employee, simultaneously with or sometime after the diagnosis of his condition, learn that the condition is an occupational disease for which compensation may be awarded.  See Ratliff v. Dominion Coal Co., 3 Va. App. 175, 349 S.E.2d 147 (1986). Id. at 508-09, 458 S.E.2d at 316-17.  The Court concluded, "Cronin received a medical diagnosis of his heart condition and acted upon such diagnosis to receive service-connected disability benefits.  This action proved that Cronin was informed for purposes of the statute."  Id. at 510, 458 S.E.2d at 317.
    As in Cronin, claimant here was not informed by a doctor that his hypertension was work-related.   However, claimant had known for ten to fifteen years that hypertension is an occupational disease which is presumptively compensable under Code Sec. 65.2-402(B).  He had lobbied for legislation to enact that presumption.  He was aware, prior to his diagnosis, that his work as a firefighter afforded him special workers' compensation coverage for hypertension.  Most significantly, claimant testified that if a doctor had diagnosed him with hypertension prior to January 1998, he would have filed his claim earlier, suggesting he knew such a diagnosis was an occupational disease.  This testimony also belies claimant's contention that he only had a "general knowledge" of the compensability of hypertension.  Overall, claimant's testimony actually underscored the fact that he did know hypertension was a presumptively compensable occupational disease.
    As in Cronin, claimant "receive[d] the communication that such a disease is a compensable occupational disease from someone other than a physician."  20 Va. App. at 508, 458 S.E.2d at 316.  He had this knowledge when the diagnosis was communicated to him, as he had known hypertension was an occupational disease for at least fifteen years prior to the diagnosis. 
    The evidence supports the commission's findings that a diagnosis of an occupational disease was communicated to claimant as of January 1995.  Therefore, his October 1999 filing falls far outside the two-year statute of limitations set forth in Code Sec. 65.2-406(A)(5).  The source of the communication of occupational disease is immaterial as long as claimant learned "that the condition is an occupational disease for which compensation may be awarded."  Id. at 509, 458 S.E.2d at 317.  Kenneth R. Owens v. York Co. Fire & Rescue, Record No. 1898-01-4 (May 28, 2002). WP Version.

    The commission did not err in finding that her claim for death benefits due to a fatal compensable consequence was barred by the limitation period contained in Code Sec. 65.2-512.  On September 8, 1986, while working for employer, the decedent sustained a compensable injury by accident when a calendar dryer blew up and flying debris hit his head.  The decedent suffered a traumatic brain injury as a result of the accident.  The commission entered an award, by agreement of the parties, for temporary total disability (TTD) benefits beginning September 16, 1986.  Employer paid decedent TTD benefits for the maximum period allowed under Code Sec. 65.2-518, 500 weeks. On January 3, 1997, by agreement of the parties, the commission entered an award in favor of the decedent for permanent total disability (PTD) benefits under Code Sec. 65.2-503(C), beginning April 8, 1996, payable for life.  On February 5, 1999, the decedent was killed by a gunshot wound to the chest after a confrontation with police arising out of a domestic disturbance at his home.  Claimant filed a claim for death benefits, alleging that the decedent's death was a compensable consequence of his original September 8, 1986 injury by accident.
    Nothing in Code Sec. 65.2-512 provides for a new limitation period for accidental injuries, which are deemed to constitute compensable consequences of an original injury by accident.  The basis upon which the February 5, 1999 incident was found to constitute an accident was that it qualified as a compensable consequence of the original injury.  By itself, the February 5, 1999 incident did not constitute an injury by accident arising out of and in the course of the decedent's employment.  Thus, because the decedent's death did not occur within nine years from the original September 8, 1986 injury by accident, the commission correctly determined that claimant and her son were not entitled to an award of death benefits.
    Nothing in Leonard v. Arnold, 218 Va. 210, 237 S.E.2d 97 (1977) supports claimant's argument.  Leonard stands for the proposition that "[w]hen a primary injury under the Workmen's Compensation Act is shown to have arisen out of the course of employment, every natural consequence that flows from the injury is compensable if it is a direct and natural result of a primary injury."  Id. at 214, 237 S.E.2d at 99.  The Leonard Court concluded that if the evidence shows that the subsequent injury did not naturally flow from a progression, deterioration, or aggravation of the initial injury, then the subsequent injury is the result of a new and separate accident, not a change in condition.  Id.  Under these circumstances, the new and separate injury arising out of the first injury requires the claimant to give notice to employer of the accident and to file a claim with the commission with the time limitations described in Code Sec. 65.1-87 (now Code Sec. 65.2-601).  Leonard, 218 Va. at 214-15, 237 S.E.2d at 100.  Leonard did not expand the claimant's entitlement to benefits, but only expanded the period of time for which a claim for an injury due to an accident caused by a compensable consequence could be made within the statutory maximum. Carla Sturtz v. Chesapeake Corp of Va., Record No. 2937-01-2 (August 20, 2002). WP Version.
 

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