Kathy A.M. Sexton v. Sentara Norfolk Gen. Hosp etal ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
KATHY A. McCLANNAN SEXTON
v. Record No. 1989-94-1 MEMORANDUM OPINION *
PER CURIAM
SENTARA NORFOLK GENERAL HOSPITAL MAY 2, 1995
AND
VIRGINIA INSURANCE RECIPROCAL
FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
(Karen M. Rye, on brief), for appellant.
(George J. Dancigers; Colleen T. Dickerson; Heilig,
McKenry, Fraim & Lollar, on brief), for appellees.
Kathy A. McClannan Sexton contends that the Workers'
Compensation Commission erred in finding that (1) the Employee
Occurrence Report filed by Sentara Norfolk General Hospital
("employer") with the commission did not constitute the filing of
a timely claim by Sexton; (2) employer was not precluded by the
doctrine of imposition from relying upon the statute of
limitations; and (3) employer was not equitably estopped from
relying upon the statute of limitations. Upon reviewing the
record and the briefs of the parties, we conclude that this
appeal is without merit. Accordingly, we summarily affirm the
commission's decision. Rule 5A:27.
On appeal, we construe the evidence in the light most
favorable to the party prevailing below. R.G. Moore Bldg. Corp.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Unless we can say as a matter of law that Sexton's evidence
proved that she filed a timely claim with the commission or that
imposition or equitable estoppel precluded employer from relying
upon the statute of limitations, the commission's findings are
binding and conclusive upon us. Tomko v. Michael's Plastering
Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
On December 13, 1989, Sexton sustained a compensable left
arm injury while working for employer as a maintenance mechanic.
She reported the injury to her supervisor and completed an
Employee Occurrence Report ("occurrence report"). On January 18,
1990, employer filed a First Report of Accident with the
commission and attached to it the occurrence report. Employer
voluntarily paid compensation benefits to Sexton from December
18, 1989 through March 19, 1990 and from September 11, 1990
through December 13, 1991.
On January 30, 1990, the commission mailed a Notification
Letter ("the blue letter") and a Workers' Compensation Guide to
Sexton at her address of record. Sexton denied that she received
these documents. These documents were not returned to the
commission. Sexton admitted that she received compensation
payments mailed to her address.
On March 22, 1990, the insurer mailed a memorandum of
agreement and agreed statement of fact to Sexton. These
documents were not returned to the insurer or employer. Sexton
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denied that she received these documents.
On March 11, 1991, employer wrote to Sexton advising her
that her employment was terminated due to her long absence. The
letter specified that "this action does not affect your benefits
for your current claim under Workmen's Compensation." Sexton
admitted that she received this letter. She testified that the
quoted-language indicated to her that her workers' compensation
claim would be paid.
Sexton further admitted that she received an October 25,
1991 letter from the insurer directing her to an independent
medical examination. Sexton admitted that she received a
memorandum of agreement, agreed statement of fact, and
supplemental memorandum of agreement with this letter. The
letter instructed her to sign the documents and return them to
the insurer. Sexton took these documents to two attorneys. The
first attorney told her she did not have a case. The second
attorney told her to sign and return the documents. Sexton did
not sign or return the documents.
By letter dated December 16, 1991, the insurer advised
Sexton that because she had failed to sign and return the
memorandum of agreement within two years of the date of her
accident, the employer would no longer voluntarily accept
responsibility for any matters relating to her accident. After
Sexton received this letter, she signed the agreements and filed
them with the commission on December 20, 1991. On January 28,
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1992, Sexton's counsel filed a claim on her behalf.
I. Employee Occurrence Report
"Code § 65.1-87 [now Code § 65.2-601] provides that the
right to compensation under the Workers' Compensation Act is
forever barred 'unless a claim be filed with the . . . Commission
within two years after the injury by accident.'" Keenan v.
Westinghouse Elevator Co., 10 Va. App. 232, 233, 391 S.E.2d 342,
343 (1990). It is undisputed that the claim filed by Sexton's
attorney on January 28, 1992 was not timely. Instead, Sexton
argued that the employer's January 18, 1990 filing of the
occurrence report constituted the timely filing of a claim on her
behalf. This argument is without merit.
"[T]he employee did not satisfy the requirement that [a]
claim be filed with the commission." Cheski v. Arlington County
Pub. Schs., 16 Va. App. 936, 938, 434 S.E.2d 353, 355 (1993).
The occurrence report that the employer attached to its first
report of accident did not apprise the commission that a claim
was being made on behalf of the employee. Thus, the commission
did not err in finding that employer's filing of the occurrence
report did not constitute the filing of a timely claim by Sexton.
II. Imposition
"'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
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been shown." Avon Products, Inc. v. Ross, 14 Va. App. 1, 7, 415
S.E.2d 225, 228 (1992). The commission made the following
findings:
It is uncontroverted that the employer filed
the First Report of Accident with the
Commission on January 18, 1990 and that on
January 30, 1990 the "Blue Letter" and guide
were mailed to [Sexton]. While Sexton
contends that she never received these
instructions, we find there is sufficient
evidence in the record to support the
Deputy's finding to the contrary.
Specifically, over the months, Sexton at that
address received her compensation benefits
and therefore we must conclude that her
allegation of selective receipt of mail sent
to the same address is unconvincing.
* * * * * * *
Sexton neglected to file a claim within two
years of the date of accident, despite being
informed of the filing requirements by the
Commission as well as by her attorney.
Furthermore, the employer mailed and the
claimant received the requisite forms which
if she had completed and returned them, would
have resulted in an award being entered on
her behalf.
In its role as fact finder, the commission was entitled to
find that Sexton received the notification letter and guide from
the commission and the letters from the insurer enclosing the
agreements and to reject her testimony to the contrary. The
determination of a witness' credibility is within the fact
finder's exclusive purview. Goodyear Tire & Rubber Co. v.
Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987).
Moreover, the evidence supports the commission's finding that
Sexton's failure to file the requisite forms, rather than any
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action of employer, caused the statute of limitations to lapse.
Thus, credible evidence supports the commission's ruling the
doctrine of imposition did not preclude employer from relying
upon the statute of limitations.
III. Equitable Estoppel
To prove estoppel, Sexton was required to show by clear,
precise and unequivocal evidence that she relied upon an act or
statement of employer or its agent in refraining from filing a
claim within the statutory period. Rose v. Red's Hitch & Trailer
Servs., Inc., 11 Va. App. 55, 59-60, 396 S.E.2d 392, 394-95
(1990). The rule is well-settled that employer is not estopped
from invoking the limitation period provided by Code § 65.2-601
merely because it made voluntary payments to Sexton. See Bowden
v. Newport News Shipbuilding & Drydock Co., 11 Va. App. 683,
686-87, 401 S.E.2d 884, 886 (1991).
The commission found no evidence that employer made any
representation which induced Sexton to refrain from filing a
timely claim. The record demonstrates that employer sent the
agreements to Sexton for her signature. Sexton received the
documents, failed to sign them, and took no action to file them.
In addition, the evidence showed that, even after being advised
by legal counsel that she should sign and return the agreements,
Sexton failed to do so. Accordingly, the evidence supports the
commission's ruling that employer was not equitably estopped from
relying upon the statute of limitations.
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For the reasons stated, we affirm the commission's decision.
Affirmed.
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