                     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
                              - 2 -
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:


                              - 3 -
          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
                               - 4 -
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.

                                    - 5 -
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.

                              - 6 -
                 "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.



                               - 7 -
            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:

             *      *     *      *      *     *     *


                              - 8 -
          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.

                                - 9 -
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
                             - 10 -
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.




                             - 11 -
