Daniel W. Page v. Lynchburg Foundry Company,et al.

• Court: Court of Appeals of Virginia
• Decided: March 7, 2000
• Docket: 1490993
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Annunziata and Bumgardner Argued at Salem, Virginia

DANIEL W. PAGE MEMORANDUM OPINION * BY v. Record No. 1490-99-3 JUDGE ROSEMARIE ANNUNZIATA MARCH 7, 2000 LYNCHBURG FOUNDRY COMPANY AND LUMBERMENS UNDERWRITING ALLIANCE

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Joseph J. Steffen, Jr., for appellant.

Mary Beth Nash (Monica L. Taylor; Gentry, Locke, Rakes & Moore, on brief), for appellees.

The claimant, Daniel W. Page, appeals the decision of the

full commission, reversing the decision of the deputy

commissioner who found that the doctrine of imposition applied

to the facts presented and that the employer's late filing of a

required accident form prejudiced Page. Page raises two

questions for this Court to decide: 1) whether the commission

correctly rejected the deputy commissioner's application of the

doctrine of imposition in this case; and 2) whether Lumbermens

Underwriting Alliance's late filing of Form 45-A served to toll

the statute of limitations. We find no error, and affirm the

commission's decision.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. BACKGROUND

On appeal, we view the evidence in the light most favorable

to the employer as the party who prevailed below. See ARA

Services v. Swift, 22 Va. App. 202, 205, 468 S.E.2d 682, 683

(1996). Factual findings of the commission will be upheld on

appeal if supported by credible evidence. See id.

Page sustained a compensable injury to his lower back while

working as a finisher in the workplace of his employer,

Lynchburg Foundry ("Foundry") on May 29, 1996. He filed a claim

for benefits on July 2, 1998, seeking wage indemnity benefits

for temporary partial disability ("TPD") and permanent partial

disability ("PPD"), two months beyond the terminal date of the

statutory limitations period for filing workers' compensation

claims.

On May 30, 1996, Page reported his injury to Nancy Wallen,

Foundry's on-site nurse. At the time he reported the injury,

Page filled out an accident report at Foundry's direction. This

report contained the address and telephone number of the

Virginia Workers' Compensation Commission. The form advised

employees who suffered work-related injuries to file a claim.

Foundry's insurance carrier, Lumbermens Underwriting Alliance

("LUA"), filed a Form 45-A, Minor Report of Injury, with the

commission on August 15, 1996. These reports are filed

electronically, on a quarterly basis, from LUA's headquarters in

- 2 - Florida. Because Code § 65.2-900(A) requires that such reports

be filed within ten days of an accident, the employer filed the

report over two months late.

At an unidentified date soon after Page's report to Wallen,

he began treatment with Dr. Kerry Donnelly, an orthopedist. Dr.

Donnelly placed Page on light-duty work restrictions from June

3, 1996 to September 13, 1996, and again from October 13, 1997

to November 18, 1997.

Approximately one month after Page's accident, Wallen asked

him whether he had filed a claim with the commission. Page had

not yet filed a claim, and he inquired of Wallen how to do so.

Wallen advised him that he needed to complete an accident report

form, available from Foundry, that contained the telephone

number and address of the Virginia Workers' Compensation

Commission. Page obtained the form and telephoned the

commission at the number provided, and spoke to a representative

of the commission. The representative asked Page whether LUA

had "given him any trouble" in making benefit payments, and upon

Page's negative reply, Page claimed that the representative

asked, "Why do you need to file a claim?" He further claimed

that the representative told him to "see how the treatments go

and maybe you don't need to file a claim." When his injury

flared up in late 1997, Page again telephoned the commission.

Page testified that he had "numerous conversations" with the

- 3 - commission from June, 1996 through October, 1998. In the course

of these conversations, no representative of the commission

advised Page to file a claim, and Page neither requested nor

received forms to file a claim.

In February, 1998, Page sought treatment with Dr. Murray

Joiner, a physiatrist recommended to him by Lisa Milam, a claims

adjuster for LUA, for symptoms related to the flare up of his

injury. In a report dated April 2, 1998, Dr. Joiner opined that

Page suffered a four percent PPD to his shoulder resulting from

the accident. Dr. Joiner also suggested to Page that he file a

claim with the commission. Page contacted the commission that

same day, and was told that a report of minor injury had been

filed. However, the representative with whom Page spoke on this

occasion told Page that he should submit a claim.

Page's only contacts with LUA were through Michelle Bewley,

a "medical only" claims adjuster, Lisa Milam, a claims adjuster,

and Tiffany Smith, a claims representative, none of whom told

Page that he would receive wage indemnity benefits or any other

benefits. On no occasion did Page ask Bewley, Milam, or Smith

whether he should file a claim.

Page filed a claim with the commission on July 2, 1998,

over two years after he sustained his injury. On November 13,

1998, the deputy commissioner ruled that the two-year statute of

limitations should be extended because the doctrine of

- 4 - imposition was applicable to Page's claim, and because LUA's

delay in filing Form 45-A prejudiced Page. The full commission

reversed, and this appeal followed.

I.

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).

- 5 - We find in the record no such "series of acts by the

employer or the commission upon which [Page] naturally and

reasonably relie[d] to his . . . detriment." Id. Page has

pointed to no affirmative statements on the part of either LUA

or Foundry that led him to believe he need not file a claim. On

the contrary, Nurse Wallen on at least one occasion asked him

whether he had done so, and the accident report Page initially

completed provided him with the address and telephone number of

the commission, which Page promptly used to contact the

commission. Moreover, when Dr. Joiner told Page that he ought

to file a claim, Page had almost two months remaining in the

statutory period to file his claim. Page contacted the

commission the same day Dr. Joiner advised him to do so, and on

this occasion the representative told him he should, indeed,

complete and submit a claim form. Page 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 Page 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

- 6 - that he was told almost two months before the limitations period

ran, by both Dr. Joiner and by an unnamed representative of the

commission, that he had to file a claim. Consequently, we

affirm the decision of the commission rejecting the application

of the imposition doctrine.

II.

Page further contends that because Foundry's carrier, LUA,

filed the required accident report, Form 45-A, nearly three

months late, his claim was prejudiced, and the tolling

provisions of Code § 65.2-602 should be applied to extend his

filing period. Code § 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 § 65.2-602 are notice to the employer of claimant's

compensable injury, specified conduct by the employer, and

prejudice to the claimant). In the present case, Page gave

proper notice of his accident, and Foundry and LUA do not

dispute the late filing of Form 45-A. Neither Foundry nor LUA

made payments to Page in compensation for his injury. Page does

- 7 - not allege misconduct on the part of either Foundry or LUA, so

the sole question on review is whether Page was prejudiced by

the late filing of Form 45-A. Page has failed to provide any

evidence whatsoever demonstrating that the delay in the filing

of Form 45-A adversely affected his claim. Viewed in the light

most favorable to the appellees, see ARA Services, 22 Va. App.

at 205, 468 S.E.2d at 683, the facts thus support the

commission's decision in finding the record insufficient to

warrant application of the tolling provisions of Code

§ 65.2-602.

For the foregoing reasons, we affirm the decision of the

commission.

Affirmed.

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