                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Agee and Senior Judge Hodges
Argued at Chesapeake, Virginia


CASEY CHEVROLET CORPORATION AND
 PENNSYLVANIA NATIONAL MUTUAL
 CASUALTY INSURANCE COMPANY
                                           MEMORANDUM OPINION* BY
v.   Record No. 1761-00-1                  JUDGE WILLIAM H. HODGES
                                              FEBRUARY 20, 2001
PETER R. DANFORTH


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             W. C. Walker (Donna White Kearney; Taylor &
             Walker, P.C., on brief), for appellants.

             Robert J. Macbeth, Jr. (Rutter, Walsh,
             Mills & Rutter, L.L.P., on brief), for
             appellee.


     Casey Chevrolet Corporation and its insurer (hereinafter

referred to as "employer") appeal a decision of the Workers'

Compensation Commission awarding temporary total disability

benefits to Peter R. Danforth (claimant).     Employer contends

that the commission erred in (1) applying the doctrine of

imposition to toll the applicable statute of limitations; (2)

entering a de facto award in favor of claimant; and (3) finding

that claimant adequately marketed his residual work capacity

from May 13, 1997 through December 31, 1997.     Finding no error,

we affirm.

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
        On appeal, we view the evidence in the light most favorable

to the prevailing party below.     See R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

        So viewed, the evidence proved that on March 23, 1992,

claimant sustained a compensable lower back injury while working

for employer as an auto technician.      Employer accepted the claim

as compensable and the commission entered an award on July 14,

1992, for temporary total disability benefits beginning May 18,

1992.

        On February 22, 1993, claimant returned to work for

employer in a light-duty capacity as quality control inspector,

at a wage greater than or equal to his pre-injury average weekly

wage.    The parties executed and filed with the commission an

Agreed Statement of Fact terminating claimant's award as of

February 22, 1993.

        After claimant returned to work, he missed work on December

30, 1994, February 21, 1995, March 24, 1995, and April 7, 1995,

due to doctor's appointments for his back injury.     Employer paid

claimant his full salary for those missed days.     Claimant

testified that employer told him that there would be paperwork

involved in submitting a claim for his lost time to the

insurance carrier and, therefore, employer would pay his wages

in lieu of workers' compensation benefits.

        On May 4, 1995, claimant underwent follow-up surgery

causally related to his compensable back injury to correct a

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bulging disc at the L4-L5 level.    He missed approximately eight

weeks of work due to the surgery.    Again, employer paid claimant

wages in lieu of compensation benefits for that period.

Claimant also missed various days of work though July 26, 1996,

due to doctor's appointments.   Employer paid claimant his full

wages for all missed days of work.

     Claimant and his wife, Melanie Danforth, testified that in

1995, before claimant's surgery, Mrs. Danforth contacted

employer's insurance company and the commission.

Representatives of both entities told her that the statute of

limitations for any additional compensation benefits had

expired.    As a result, claimant and his wife met with an

attorney for a fifteen-minute conference.   The attorney told

them "[Y]es, the statutes had run out," even though Mrs.

Danforth informed the attorney that claimant had been paid wages

in lieu of compensation for all days of work he had missed.

     In early May 1997, employer terminated claimant's

light-duty employment.   Employer offered claimant two other

jobs; however, claimant's physician did not approve those jobs

as being within claimant's restrictions.    Employer also offered

claimant the option of going back on workers' compensation

benefits.

     On May 20, 1997, claimant filed an application seeking

temporary total disability benefits beginning May 9, 1997.     The

commission set the application for hearing on January 30, 1998.

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On February 5, 1998, the commission, at claimant's request that

his claim be withdrawn, entered an order dismissing the May 20,

1997 claim.

     On February 9, 1999, claimant filed another claim

requesting that the commission re-open his workers' compensation

claim and convene a hearing that was previously scheduled for

January 30, 1998.   On May 7, 1999, the commission held a hearing

on the February 9, 1999 claim.    At the hearing, claimant

requested an award of temporary total disability benefits for

May 12, 1997 and continuing and a de facto award for the

following dates:    December 30, 1994; February 21, 1995; March

24, 1995; April 7, 1995; May 4, 1995 through July 1, 1995;

October 23, 1995; November 22, 1995; January 24, 1996; February

1, 1996; and July 26, 1996.

     The commission awarded claimant compensation benefits and

ruled as follows:

               Here, salary paid to the claimant by
          the pre-injury employer for the period
          February 22, 1995 through February 27, 1997,
          must be considered compensation under [Code
          § 65.2-708(C)]. This yields a filing date
          no later than February 22, 1997. In the
          present case, the claimant filed
          applications both on May 20, 1997 and
          February 9, 1999. This does not end our
          inquiry as the various doctrines that would
          effectively toll the statute of limitations
          or render the issue moot have not been
          considered.

              *     *      *      *      *      *      *



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     We do find that the doctrine of
imposition applies to the case at bar. . . .

     The employer in this case voluntarily
paid wages in lieu of compensation benefits
for: December 30, 1994; February 21, 1995;
March 24, 1995; April 7, 1995; May 4, 1995
through July 5, 1995; October 23, 1995;
November 22, 1995; January 24, 1996;
February 1, 1996; and July 26, 1996. The
claimant's uncontradicted testimony is that
he approached a member of management
regarding the mechanism by which he would be
paid for all of those lost dates. He
testified that the employer informed him
that the paperwork necessary to get paid
through the workers' compensation carrier
would be too time consuming and, therefore,
told the claimant that it would pay wages in
lieu of compensation benefits. Under the
Act, an employer and carrier is required to
submit to the Commission executed agreements
relative to any compensation benefits that
are due and payable to an injured employee.
This was not done in this case. Further, we
note the claimant's uncontradicted testimony
that he contacted the Commission prior to
his surgery in May 1995, inquiring as to
whether he could file a change in condition
application. He was incorrectly informed
that the statute of limitations had expired,
even though he informed the Commission
employee that he was receiving pay equal to
or greater than his pre-injury average
weekly wage from the pre-injury employer.
We find, under the totality of the
circumstances, that the doctrine of
imposition works to toll the statute of
limitations in this case.

     We also find that the claimant is
entitled to a de facto award in this case,
given the long and consistent history of the
employer ignoring its duty to file the
appropriate agreements with the Commission
relative to payments made to the claimant on
various dates through July 24, 1996.




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               On the issue of disability, we find
          that the claimant is entitled to an award of
          temporary total disability benefits from May
          13, 1997 through December 31, 1997. The
          claimant reasonably marketed his residual
          capacity through the latter date, and
          thereafter sought employment only once per
          month.

                         I.     Imposition

     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 # 235, 20 Va. App. 228, 234, 456 S.E.2d 140, 143

(1995)) (additional citation omitted).       "The doctrine focuses on

an employer's or the commission's use of superior knowledge of

or 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."       Id.   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."        Id.

     Credible evidence in the record proved that a "series of

acts by the employer or the commission, [both of which had

superior knowledge of and experience with the Act], upon which

[claimant] naturally and reasonably relied to his . . .

detriment" caused him not to file a timely change-in-condition


                                - 6 -
application.   Id.   Claimant pointed to affirmative statements on

the part of employer and the commission that led him to believe

he need not or could not file a claim.    Accordingly, the

commission did not err in applying the doctrine of imposition to

toll the statute of limitations with respect to the February 9,

1999 application.

                         II.   De Facto Award

     In Ryan's Family Steak Houses, Inc. v. Gowan, 32 Va. App.

459, 528 S.E.2d 720 (2000), we recognized that Code

§ 65.2-701(A) authorizes de facto awards:

               De facto awards of compensation have
          been long recognized by this Court,
          beginning with National Linen Service v.
          McGuinn, 5 Va. App. 265, 362 S.E.2d 187
          (1987) (en banc). De facto awards are
          premised on Code § 65.2-701(A). The statute
          reads, in pertinent part:

               If after injury . . . the employer and
          the injured employee . . . reach an
          agreement in regard to compensation or in
          compromise of a claim for compensation under
          this title, a memorandum of agreement in the
          form prescribed by the Commission shall be
          filed with the Commission for approval.

          In McGuinn, we held that where the employer
          has stipulated to the compensability of the
          claim, has made payments to the employee for
          some significant period of time without
          filing a memorandum of agreement, and fails
          to contest the compensability of the injury,
          it is "reasonable to infer that the parties
          ha[ve] reached an agreement as to the
          payment of compensation," and a de facto
          award will be recognized.

Id. at 462-63, 528 S.E.2d at 722 (footnote omitted).



                                 - 7 -
     In this case, claimant sustained a series of absences from

work causally related to his compensable injury over an

eighteen-month period.    Employer voluntarily chose to pay

claimant his salary for those absences and told claimant it

chose to do so instead of filling out the time-consuming

paperwork necessary to allow claimant to be paid through the

workers' compensation carrier.      As a result, employer failed to

file the appropriate agreements required by statute.         See Code

§ 65.2-701.   Thus, the commission did not err in treating the

parties' agreements for employer to pay claimant his regular

salary for the absences in lieu of compensation as a de facto

award, as if agreements had been filed and approved by the

commission for those dates.

                            III.    Marketing

     A partially disabled employee is required to make

reasonable efforts to market his residual earning capacity to be

entitled to receive continued benefits.         See McGuinn, 8 Va. App.

at 269, 380 S.E.2d at 33.    "In determining whether a claimant

has made a reasonable effort to market his remaining work

capacity, we view the evidence in the light most favorable to

. . . the prevailing party before the commission."         Id. at 270,

380 S.E.2d at 33.   "What constitutes a reasonable marketing

effort depends upon the facts and circumstances of each case."

The Greif Companies (GENESCO) v. Sipe, 16 Va. App. 709, 715, 434

S.E.2d 314, 318 (1993).   We hold that the commission did not err

                                   - 8 -
in determining that claimant adequately marketed his residual

work capacity.

     It was undisputed that after employer terminated claimant

from his job in May 1997, he received unemployment compensation

benefits for the maximum allowable time, approximately six to

seven months, up through the end of 1997.   During that time, he

sought employment at least two to three times per week,

documented those job searches, and submitted them to the

unemployment commission.   None of these job searches resulted in

an offer of employment to claimant.    Under these circumstances,

we find that credible evidence supports the commission's

conclusion that claimant made a reasonable effort to market his

residual work capacity through December 31, 1997.

     For these reasons, we affirm the commission's opinion.

                                                           Affirmed.




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