                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia

GERALD ALBERT ADKINS

v.   Record No. 1803-96-2                MEMORANDUM OPINION * BY
                                           JUDGE MARVIN F. COLE
NABISCO BISCUIT                              JULY 29, 1997


                                            FROM THE VIRGINIA
WORKERS' COMPENSATION COMMISSION

            Brian J. Cusce for appellant.
            P. Dawn Bishop (Sands, Anderson, Marks &
            Miller, on brief), for appellee.



     Gerald A. Adkins appeals from a decision of the Workers'

Compensation Commission (commission) denying his application for

compensation benefits on the ground that Adkins did not file the

application before the applicable statute of limitations expired.

 Adkins contends that the commission erred in finding that (1)

Code § 65.2-602 did not toll the applicable statute of

limitations; (2) the doctrine of equitable estoppel did not apply

to prevent Nabisco Biscuit (employer) from asserting the statute

of limitations; (3) employer's conduct did not constitute an

imposition on the commission and Adkins; and (4) a de facto award
did not exist.    Finding no error, we affirm the commission's

decision.

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

to the prevailing party below.     R.G. Moore Bldg. Corp. v.
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

     So viewed, the evidence established that on February 2,

1995, Adkins filed a claim with the commission alleging an injury

by accident arising out of and in the course of his employment on

December 10, 1992.   Adkins sought an award of temporary total

disability benefits commencing January 14, 1993 and continuing.

At the October 2, 1995 hearing, employer stipulated to the

compensability of Adkins' accident, but defended against his

application on the ground that it was barred by the two-year

statute of limitations contained in Code § 65.2-601.
     As of December 1992, Adkins had worked for employer for

nineteen years.   On December 10, 1992, Adkins, a machine captain,

slipped on steps and sustained a back injury.   He immediately

reported the accident to his supervisor, who sent him to the

company nurse, Cecilia Craft.   Craft completed an accident

report, and Adkins returned to work.   Adkins worked until January

14, 1993, when he was no longer able to work due to the injury.

Adkins again saw Craft and a company doctor.    Craft referred

Adkins to Dr. Anthony G. Velo, an orthopedic surgeon.   On March

1, 1993, Dr. Velo performed surgery on Adkins' back to remove a

ruptured disc.    Adkins returned to work on December 20, 1993 and

worked until February 7, 1994, when he was again unable to work

due to the injury.

     Adkins testified that Jeanne Dyer, a nurse employed by

employer's insurer, assisted him with his physicians and told him



                                 -2-
that "anything I needed, she would take care of it. . . .       She

always went with me to the doctor and made my doctors

appointments and called work."      Adkins saw Drs. E. Claiborne Irby

and George Gruner at Dyer's request.

        Employer filed its first report of accident on February 2,

1993.       The commission sent a "blue letter," dated February 9,

1993, to Adkins addressed to him at Route 2, Box 125, Providence

Forge, Virginia.      Adkins denied receiving this "blue letter."

The evidence proved that in November 1992, the postal service

changed his mailing address from Route 2, Box 125, Providence

Forge, Virginia to 4440 North Courthouse Road, Providence Forge,

Virginia.      Adkins admitted that he did not physically move his

residence and testified that he continued to receive mail

addressed to him at both the former and current mailing address.
        Apparently, either Adkins or employer later filed a minor

injury claim relative to an injury incurred by Adkins on January

24, 1994.      As a result of this filing, the commission mailed

another Workers' Compensation Guide to Adkins on February 23,

1994. 1     Adkins admitted that he received the guide, but he did

not read it.      Rather, he placed it in his dresser drawer.   He

stated that he did not think he had to do anything in regard to

his claim because "I'd never done anything before on my cases.


        1
      The commission cited to this January 24, 1994 minor claim
in its opinion. There is no evidence of this claim in the
record. However, the guide, which is in the record, contains an
 address label reflecting a date of "1/24/94."


                                    -3-
It was always taken care of." 2

     With respect to the December 10, 1992 injury by accident,

employer paid Adkins weekly benefits for various periods from

January 21, 1993 through January 15, 1995.   Employer also paid

Adkins cost of living increases.    Adkins stated that he did not

know he needed to file a claim with the commission nor did he

know of any time limits on filing a claim.   Adkins knew that Jon

Hall was the insurance adjuster for his claim, but he had very

little contact with Hall.
     Dyer testified that her job was to facilitate a resolution

of the medical aspects of Adkins' case, essentially by acting as

a liaison between the insurance company, Adkins' physicians, and

Adkins.   Dyer met with Adkins on numerous occasions.   She told

Adkins that her only job was to help him with the medical aspects

of his case.   Dyer admitted asking Adkins at their first meeting

if he was receiving checks.   Dyer provided the insurance company

with periodic reports concerning Adkins' progress from a medical

standpoint.

     2
      Adkins had received workers' compensation benefits before
the December 10, 1992 accident for other work-related injuries.
The commission's records reflected that two previous files were
generated for Adkins for work injuries sustained in 1978 and
1984. "Blue letters" were sent to him in both instances. The
blue letter and the workers' compensation guide spell out the
time limit for filing a claim. With respect to these previous
injuries, Adkins signed memoranda of agreement on October 23,
1978 and December 26, 1984. Adkins stated that even though he
signed the agreements, he did not understand why he signed them
nor did he know that employer filed them with the commission.




                                  -4-
        The deputy commissioner dismissed Adkins' application,

finding "that there had been no prejudice, no misrepresentation,

and no evoked detrimental reliance, and because no prejudice

exists, the two-year statute of limitations ran on December 10,

1994.    This matter was filed on February 2, 1995, beyond the

two-year statute of limitations."

        The full commission affirmed the deputy's decision, finding

that the statute of limitations was not tolled pursuant to Code

§ 65.2-602 because Adkins failed to prove prejudice.    The

commission found that Adkins had notice of the filing requirement

because he received a guide and a blue letter within fifteen

months of his injury, noting that the fact that the guide

pertained to a subsequent minor claim was of no moment because

Adkins' rights and responsibilities were the same for either

claim.    Adkins admitted receiving the guide within fifteen months

of his injury, leaving "some eight months" within which to file a

timely claim.    The commission also found that Adkins had

sustained two previous workers' compensation injuries for which

the commission had sent blue letters.
        The commission held that Adkins did not establish equitable

estoppel.    The commission found that Dyer neither represented to

Adkins that his claim had been filed nor indicated that he did

not need to protect his claim.    The commission also found that

employer's voluntary payment of compensation benefits and cost of

living adjustments did not establish an estoppel.    Employer's




                                  -5-
actions were no more than those expected from an employer

complying with the Act.   The commission found that employer's

voluntary payment did not create a de facto award.    Finally, the

commission found that the doctrine of imposition did not apply

because Adkins did not rely upon any actions of the

employer/carrier or the commission, and employer's actions taken

as a whole were consistent with an endeavor to comply with the

Act.
                                 I.

       In pertinent part, Code § 65.2-602 states as follows:
            In any case where an employer has received
            notice of an accident resulting in
            compensable injury to an employee as required
            by § 65.2-600, and whether or not an award
            has been entered, such employer nevertheless
            has paid compensation or wages to such
            employee during incapacity for work as
            defined in § 65.2-500 or § 65.2-502,
            resulting from such injury or the employer
            has failed to file the report of said
            accident with the Virginia Workers'
            Compensation Commission as required by
            § 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 required by § 65.2-900. For
            purposes of this section, such rights of an
            employee shall be deemed not prejudiced if
            his employer has filed the first report of
            accident as required by § 65.2-900 or he has
            received after the accident a workers'
            compensation guide described in § 65.2-201 or
            a notice in substantially the . . . form
            [stated in this statute].




                                 -6-
     Dissecting Code § 65.2-602 down to its plain meaning, we

find that in order to toll the statute of limitations, an

employee must prove the existence of certain conditions.    First,

an employee must show that the employer received notice of the

accident as required by Code § 65.2-600, and that the employer

either has paid wages or compensation to the employee during

incapacity from work, with or without an award or has failed to

file an Employer's First Report of Accident as required by Code

§ 65.2-900.   Second, an employee must prove that either the

employer's payment of wages or compensation or its failure to
file the first report of accident has operated to prejudice the

employee's rights with respect to filing a claim prior to the

expiration of the statute of limitations.   If an employee proves

the existence of these conditions, the statute of limitations

shall be tolled for the duration of the employer's payment of

compensation or wages during an employee's incapacity from work

or until the employer files an Employer's First Report of

Accident.

     As noted in the provisions, The "rights of an employee . . .

to file a claim prior to the expiration of the statute of

limitations shall be deemed not prejudiced if his employer has

filed . . . the first report of accident as required by

§ 65.2-900 or he has received after the accident a workers'

compensation guide described in § 65.2-201 or a notice in

substantially the . . . form [stated in this statute]."    Thus, if



                                -7-
either of these two circumstances occur, i.e., the employer files

the first report of accident as required by Code § 65.2-900 or

the employee receives a workers' compensation guide after the

accident, the statute provides for a per se absence of prejudice

with respect to the employee's right to file a timely claim.

Without a showing of prejudice, the tolling provisions of Code

§ 65.2-602 are not triggered.

     Because Adkins received a workers' compensation guide after

his accident and before the statute of limitations expired, the

clear and unambiguous language of Code § 65.2-602 dictates that

his rights with respect to filing a timely claim were not

prejudiced as a matter of law.       When he received the guide, he

had at least eight months within which to file a timely claim.

Yet, he failed to read the documents or act upon them.      Absent

proof of prejudice, the elements necessary for tolling the

statute of limitations pursuant to Code § 65.2-602 were not met

and Adkins' rights expired on December 10, 1994.      Therefore, the

commission did not err in ruling that the statute of limitations

was not tolled pursuant to Code § 65.2-602, and that Adkins
                                 3
failed to file a timely claim.
                                     II.

     To prove estoppel, a claimant must show by clear, precise

     3
      As it is unnecessary to do so under the circumstances of
this case, we do not address how the statute would be applied in
a situation where an employee received the guide very close in
time to the expiration of the statute of limitations.



                                     -8-
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.    Rose v. Red's Hitch &

Trailer Servs., Inc., 11 Va. App. 55, 59-60, 396 S.E.2d 392,

394-95 (1990).   However, a claimant need not prove a false

representation, concealment of a material fact, or fraudulent

intent, in order to invoke the doctrine of equitable estoppel.

Cibula v. Allied Fibers & Plastics, 14 Va. App. 319, 324-25, 416

S.E.2d 708, 711 (1992), aff'd, 245 Va. 337, 428 S.E.2d 905
(1993).   In addition, it is well settled that employer is not

estopped as a matter of law from relying on the limitation period

provided by Code § 65.2-601 merely because it made voluntary

payments to a claimant.    See Bowden v. Newport News Shipbuilding

& Dry Dock Co., 11 Va. App. 683, 686-87, 401 S.E.2d 884, 886

(1991).

     The commission found no evidence that employer or its agents

made any representations which induced Adkins to refrain from

filing a timely claim.    The record supports this finding.

Neither Dyer nor employer ever represented to Adkins that his

claim had been filed or that he did not need to do anything to

protect his rights.   In addition, Adkins' evidence did not

establish an affirmative, deliberate effort by employer or its

agent to prejudice his right to file a claim within the

limitations period.   Such an effort must be shown in order to

invoke the doctrine of equitable estoppel.    Odom v. Red Lobster




                                 -9-
#235, 20 Va. App. 228, 233-34, 456 S.E.2d 140, 143 (1995).

        Based upon this record, the commission did not err in ruling

that employer was not equitably estopped from relying upon the

statute of limitations.

                                 III.

        "'[I]mposition' . . . 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."     Avon Products, Inc. v. Ross, 14 Va. App. 1, 7, 415

S.E.2d 225, 228 (1992).    The commission correctly held that the

doctrine of imposition did not apply in this case because the

acts of the carrier and employer were consistent with an endeavor

to comply with the Act.     Cheski v. Arlington County Pub. Schs.,

16 Va. App. 936, 940, 434 S.E.2d 353, 356 (1993).    No evidence

established that Dyer told Adkins she would take care of anything

other than his medical needs.    In addition, no evidence showed

improper conduct by the insurance adjuster.    The facts merely

showed that Adkins was paid compensation and cost of living

increases and provided with a rehabilitation nurse to monitor his

medical status.    The employer/carrier's actions in Odom, relied
upon by Adkins, went far beyond those of the employer in this

case.

                                  IV.

        The holding of National Linen Serv. v. McGuinn, 5 Va. App.

265, 362 S.E.2d 187 (1987), which applied to the issue of whether



                                 -10-
a claimant bore the burden of proving marketing efforts, is not

applicable to this case which deals with the jurisdictional issue

of whether a timely claim has been filed.   Accordingly, the

commission did not err in finding that employer's voluntary

payments did not create a de facto award.

     For the reasons stated, we affirm the commission's decision.

                                        Affirmed.




                              -11-
