Carol Remington v. Global One Communication

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Humphreys
Argued at Alexandria, Virginia
CAROL REMINGTON
MEMORANDUM OPINION * BY
v. Record No. 2099-02-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
MARCH 4, 2003
GLOBAL ONE COMMUNICATIONS, LLC AND
GREAT NORTHERN INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Jeremy Flachs (D. Michael Mullori, Jr., on
brief), for appellant.
Iris W. Redmond (Midkiff, Muncie & Ross,
P.C., on brief), for appellee.
Carol Remington (claimant) contends the Workers'
Compensation Commission (commission) erred in finding that her
Claim for Benefits was barred by the statute of limitations and
in failing to apply the doctrine of imposition. Finding no
error, we affirm the commission's decision.
I. Facts
We view the evidence in the light most favorable to the
employer, who prevailed below. See Westmoreland Coal v.
Russell, 31 Va. App. 16, 20, 520 S.E.2d 839, 841 (1999). The
commission's factual findings are conclusive and binding on this
Court when those findings are based on credible evidence. See
* Pursuant to Code § 17.1-413 this opinion is not
designated for publication.
James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382
S.E.2d 487, 488 (1989), and Code § 65.2-706. "The fact that
there is contrary evidence in the record is of no consequence."
Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d
32, 35 (1991).
Claimant, a 25 year employee of Global One Communications,
LLC (employer), received a diagnosis of bilateral carpal tunnel
syndrome December 5, 1997 and reported it to her employer
December 9, 1997. Her employer requested a date of injury and
claimant said:
I told Teresa that there wasn't an actual
date of injury because carpal tunnel doesn't
happen as an injury, it builds over time.
She said she had to have a date and to just
pick one. I said, well, I can't. She said
just randomly pick a date and so I picked
June 13 . . . 1997.
Claimant received a denial letter from the insurance carrier
dated January 28, 1998. The letter stated:
On July 1, 1997 the law which prohibited
Carpal Tunnel Syndrome as a compensible
[sic] injury has been overturned by the
state of Virginia. The law still deems that
any Carpal Tunnel Syndrome injury prior to
the overturn date is Not Compensible [sic]
and maybe denied for benefits unless
medically proved the injury was acquired
after July 1, 1997.
Claimant called the commission and requested a copy of the
bill referenced in the letter. On February 13, 1998, Chief
Deputy Commissioner Link sent her a copy of the bill. Claimant
sent a letter back by facsimile to Chief Deputy Commissioner
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Link the same day noting that she had filed a "workers'
compensation claim with my company's insurance carrier" and
requested further information. The letter was on the letterhead
of Global One and delineated the subject at issue as being the
"Carpal Tunnel Syndrome Bill." Claimant asked several questions
in the letter about filing a claim. They included: "Is the
determining factor diagnosis and subsequent treatment? Or is it
the date that I started to have pain, tingling, etc.? What
timeframe will the insurance company use for my claim?" She
concluded her inquiry with "I look forward to your response
about the interpretation of the 'compensable' time frame."
Chief Deputy Commissioner Link responded on February 27,
1998 and informed claimant that "[t]he date on which your
treating physician diagnosed carpal tunnel syndrome and
communicated that date [sic] to you is the date from which the
statute of limitations will be deemed to run and will be deemed
the date of injury." Claimant amended the date of loss with
employer, and her claim was accepted as compensable by employer
on April 2, 1998. Employer reported the claim to the commission
on April 6, 1998, and the standard notification letter or "blue
letter" was mailed to claimant April 10, 1998.
Claimant acknowledged receipt of the "blue letter" and
specifically recalled reading paragraph three on the back of the
letter. Paragraph three states:
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If the carrier or the self insured employer
denies your claim or fails to provide a
Memorandum of Agreement form or if you do
not receive an Award Order, you should file
a Claim for Benefits form to protect your
rights. A form is included in the enclosed
booklet.
Your Claim for Benefits form must be filed
with the Commission within the following
time:
* * * * * * *
Occupational disease - Two years from the
date you were told by the doctor that the
disease was related to your work . . . .
(Emphasis added).
Claimant filed her Claim for Benefits form January 29,
2001, a period in excess of the time required by Code
§ 65.2-601. Claimant sought payment for permanent disability
and lifetime medical benefits. She did not seek indemnity
benefits because her employer paid her short term disability
benefits for the duration of her leave.
At the hearing before the deputy commissioner, claimant
argued that the statute of limitations was tolled by the payment
of wages in lieu of compensation, the employer was estopped from
asserting the statute of limitations by its actions and that the
doctrine of imposition applied. The deputy commissioner found
that the claim was time barred, the tolling provision did not
apply, nor did the doctrines of estoppel or imposition.
Claimant appealed to the full commission and for the first
time added the additional claim that her facsimile of February
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13, 1998 was a Claim for Benefits. In its decision, the
commission stated:
We find that [claimant's February 13, 1998
facsimile], which inquired regarding the
timeframe for filing a claim and to which
the Chief Deputy Commissioner responded by
informing the claimant of her need to file a
Claim for Benefits within two years, was not
a Claim for Benefits.
* * * * * * *
[W]e find no action by the employer, the
carrier, or the Commission that the claimant
could have reasonably relied on in failing
to file her claim in a timely manner.
Therefore, we find the doctrine of
imposition inapplicable.
* * * * * * *
[W]e note that the mere payment of benefits
does not establish a de facto award.
Moreover, the Commission has no authority to
enter a de facto award in cases that involve
a jurisdictional issue of failing to file
within two years from the date of injury. 1
Claimant appealed that decision.
II. Statute of Limitations
A. Claim for Benefits
Appellant first contends that her February 13, 1998
facsimile to Chief Deputy Commissioner Link constituted the
filing of her Claim for Benefits. We disagree.
Code § 65.2-406 provides: "The right to compensation under
this chapter shall be forever barred unless a claim is filed
1
Claimant abandoned her de facto award argument on appeal.
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with the Commission within . . . two years after a diagnosis of
the disease is first communicated to the employee . . . ."
"[C]laimant . . . must show that [her] original claim was timely
filed, for such filing within the statutory period is
jurisdictional." Binswanger Glass Co. v. Wallace, 214 Va. 70,
73, 197 S.E.2d 191, 193 (1973).
[The requirement of Code § 65.2-406] is
satisfied only by filing the claim with the
commission, not by filing it with the
employer or anyone else. By giving
information and filing reports with [the]
employer the employee did not satisfy the
requirement that the claim be filed with the
commission, regardless of her belief that
this would constitute the filing of a claim
for workers' compensation.
Cheski v. Arlington County Pub. Schs., 16 Va. App. 936, 938, 434
S.E.2d 353, 355 (1993).
Commission Rule 1.1(A) provides the requirements for a
Claim for Benefits:
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 or date of
communication of occupational disease;
4. Nature of injury or occupational
disease;
5. Benefits sought: temporary total,
temporary partial, permanent total,
permanent partial or medical benefits;
6. Periods of disability, if appropriate.
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"The basic nature of the notice
required by [the Workers' Compensation Act]
and the necessity for an applicable
jurisdictional limitation are
apparent. . . . 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."
Massey Builders Supply Corp. v. Colgan, 36 Va. App. 496, 503,
553 S.E.2d 146, 150 (2001) (quoting Binswanger, 214 Va. at 73,
197 S.E.2d at 194.
All parties stipulated that the date of the communication
of the diagnosis of carpal tunnel syndrome was December 5, 1997.
Thus, claimant was required to file her Claim for Benefits prior
to December 5, 1999. Claimant's facsimile inquiry to Chief
Deputy Commissioner Link failed to meet the criteria for a Claim
for Benefits. While it contained the name and address of Global
One, it did not specify it was the employer at the time the
injury was sustained nor did it request any benefits. It merely
contained questions concerning the time frame for filing a Claim
for Benefits that Chief Deputy Commissioner Link answered
clearly and unambiguously. Credible evidence supports the
commission's finding that the facsimile was not a Claim for
Benefits.
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B. Paragraph Three of the "Blue Letter"
Claimant next argues that she should be excused from timely
filing her Claim for Benefits because the commission's
notification or "blue letter" was unclear. This contention is
without merit.
After the employer sent the first report of injury to the
commission, the commission sent claimant the standard
notification letter or "blue letter" which contained the statute
of limitations information. Claimant admitted she read
paragraph three which expressly stated that a Claim for Benefits
must be filed with the commission within two years from the date
of communication of the diagnosis. The "blue letter"
specifically addressed the need for claimant to file a Claim for
Benefits within the applicable statute of limitations, and Chief
Deputy Commissioner Link's letter repeated that information.
Paragraph three of the "blue letter" clearly lists the
triggering mechanisms for filing a claim in the disjunctive.
If the carrier or the self insured employer
denies your claim or fails to provide a
Memorandum of Agreement form or if you do
not receive an Award Order, you should file
a Claim for Benefits form to protect your
rights. A form is included in the enclosed
booklet.
Your Claim for Benefits form must be filed
with the Commission within the following
time:
* * * * * * *
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Occupational disease - Two years from the
date you were told by the doctor that the
disease was related to your work . . . .
(Emphasis added). Usually, phrases separated by a comma and the
disjunctive "or," are independent. See, e.g., Ruben v.
Secretary of DHHS, 22 Cl. Ct. 264, 266 (1991). Claimant never
received either a Memorandum of Agreement or an Award Order.
Thus, she was required to file a timely Claim for Benefits.
Claimant's misreading of the "blue letter" requirements does not
extend her time for filing under the Act. The commission did
not err in dismissing claimant's Claim for Benefits as time
barred.
III. Imposition
Lastly, claimant argues that the commission erred in
failing to apply the doctrine of imposition. 2
Within the principles established by
statutes and the decisions construing them,
the commission has jurisdiction to do full
and complete justice in each case. From
that principle has developed the concept
known as "imposition," which 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.
2
Claimant also argues on brief that the deputy
commissioner's exclusion of a letter from the insurance carrier
was error. While the commission did not address this argument
in its opinion, under the facts of this case, we find no abuse
of discretion as the letter was cumulative of the evidence
already before the commission.
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Avon Products, Inc. v. Ross, 14 Va. App. 1, 7, 415 S.E.2d 225,
228 (1992) (internal quotations and citations omitted).
"Imposition may result when an employer, using superior
knowledge and the economic leverage derived from being able to
withhold benefits, pays less benefits than required without
consulting or advising the employee of an alternative that would
require the payment of greater benefits." Cheski, 16 Va. App.
at 940, 434 S.E.2d at 356. We have held that "the doctrine of
imposition does not apply where a carrier's or employer's acts
are consistent with an endeavor to comply with the Act." Odom
v. Red Lobster # 235, 20 Va. App. 228, 234, 456 S.E.2d 140, 143
(1995) (citing Cheski, 16 Va. App. at 940, 434 S.E.2d at 356).
In the instant case, the actions of the employer and
carrier show no more than an effort to comply with the
requirements of the Act. The claim was reported to the
commission as required, and the claimant received the "blue
letter" informing her of the need to file a Claim for Benefits
within the appropriate statute of limitations. The employer
paid the applicable benefits and while she was still employed,
accommodated her physical limitations. There is no evidence
that the employer used "superior knowledge and economic power to
achieve the payment of less benefits than required by the Act."
Cheski, 16 Va. App. at 940, 434 S.E.2d at 356. Credible
evidence supports the commission's finding that "no action by
the employer, the carrier, or the commission that the claimant
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could have reasonably relied [upon prevented her] . . . fil[ing]
her claim in a timely manner."
For the foregoing reasons, the decision of the commission
is affirmed.
Affirmed.
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