                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Fitzpatrick
Argued at Alexandria, Virginia


LESLIE FERNANDES

v.       Record No. 2182-94-4               OPINION BY
                                     JUDGE SAM W. COLEMAN III
HANDYMAN SERVICES, INC.                   AUGUST 22, 1995
AND
GENERAL ACCIDENT INSURANCE COMPANY OF AMERICA


       FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
          Richard E. Cassell for appellant.

          Susan L. Herilla (John R. Turbitt; Slenker, Brandt,
          Jennings & Johnston, on brief), for appellees.



     Leslie Fernandes, claimant, appeals a decision of the

Workers' Compensation Commission which held that his claim for

disability benefits based upon a change in condition was time

barred by Code § 65.1-99 (now Code § 65.2-708).    The claimant

contends that the commission should have held that the employer

waived its right to plead the statute of limitations or is barred

from asserting the defense because of the doctrines of estoppel

or imposition.    We hold that because the employer had agreed in

writing, before the statute of limitations ran, to pay for the

claimant's surgery and the related temporary total disability

benefits, but then delayed approval of the surgery until the

statutory period for claiming the related disability benefits had

expired, the employer is estopped from relying upon the statute

of limitations.

     The claimant suffered a compensable injury to his elbow in
1987.       In 1988, he suffered a second compensable injury to the

same elbow.       Dr. Charles Ubelhart treated both injuries.   The

claimant last received disability benefits for those injuries

pursuant to an award by the commission through February 4, 1990.

 Thus, February 4, 1990, was the date from which the two year

statute of limitations under Code § 65.2-708 ran for filing a

change in condition claim in the event that the claimant suffered

a subsequent period of disability.
        In early February 1990, Dr. Ubelhart advised the claimant

that he needed surgery to decompress the ulnar nerve in his arm.

 However, Dr. Ubelhart later informed the claimant that he would

not perform the surgery because the employer's insurance carrier

had "cancelled" it by refusing to pay for the procedure.        The

claimant then filed a change in condition application in late

February 1990, requesting that the commission approve the surgery

and the related period of disability.       The employer and carrier,

by a letter to claimant's counsel dated March 29, 1990, agreed to

pay both the surgical and associated disability benefits. 1      A

        1
            The letter to the claimant's counsel stated:

                  Please be advised that the employer and carrier
               have agreed to pay for the necessary causally
               related surgery proposed by Dr. Charles Ubelhart
               referable to Mr. Fernandes' work injury of
               March 16, 1988, while employed by Handyman
               Services, Inc. Once the surgery has been
               scheduled and your client is off from work due to
               same, please let me know and Annalys Wilson of
               Crawford & Company will send you the appropriate
               Supplemental Memorandum of Agreement form to be
               signed by your client.



                                    -2-
copy of that letter, together with another letter from defense

counsel which stated, "the employer and carrier have agreed to

the surgery proposed by Dr. Ubelhart," were sent to the

commission.    The commission took no action on claimant's

February 1990, application.

     In May 1990, Dr. Ubelhart determined that surgery was not

immediately necessary, but would be required at a later date.    In

November 1991, Dr. Ubelhart determined that the claimant should

have the surgery.   However, the insurance carrier advised the

claimant and Dr. Ubelhart that it would not pay for the

claimant's surgery until it deposed the claimant and until he had

an independent medical examination to determine the necessity for

the surgery.   The claimant filed an application with the

commission on February 19, 1992, seeking approval to have the

surgery.   By order dated June 29, 1992, the commission dismissed

the claimant's petition, stating that "the parties have amicably

resolved the matter in controversy."
     The claimant had surgery in June 1993.    However, because the

employer would not pay compensation benefits for the period of

disability occasioned by the surgery, the claimant filed an

application July 1, 1993.   On an information form provided by the

commission, signed and dated July 21, 1993, the employer and

carrier stated that the claim for disability benefits was

compensable and the only unresolved issue was the period of

claimant's disability.

     Nevertheless, at the hearing, the employer defended the


                                 -3-
change in condition application on the ground that the claim for

disability benefits was barred by Code § 65.1-99 (now

Code § 65.2-708).   Following the hearing, the commission ruled

that the claim was time barred as of February 5, 1992.

     When the employee was injured, Code § 65.1-88 (now

Code § 65.2-603) required an employer to provide for reasonable

and necessary medical attention for "[a]s long as necessary after

an accident."   However, when an employee has been awarded

compensation benefits and the award has been terminated upon the

employee's return to work, Code § 65.1-99 (now Code § 65.2-708)

limits the time in which the commission may review an award under

a change in condition application.    Code § 65.1-99, which was

applicable when the employee filed a change in condition

application, provided:
          Upon its own motion or upon the application
          of any party in interest, on the ground of a
          change in condition, the Industrial
          Commission may review any award and on such
          review may make an award ending, diminishing
          or increasing the compensation previously
          awarded, subject to the maximum or minimum
          provided in this Act, and shall immediately
          send to the parties a copy of the award.
          . . . No such review shall be made after
          twenty-four months from the last day for
          which compensation was paid, pursuant to an
          award under this Act, except: (i) thirty-six
          months from the last day for which
          compensation was paid shall be allowed for
          the filing of claims payable under § 65.1-56
          or (ii) twenty-four months from the day that
          the claimant undergoes any surgical procedure
          compensable under § 65.1-88 to repair or
          replace a prosthesis.


The statute of limitations contained in Code § 65.1-99 is not a



                                -4-
jurisdictional requirement, Binswanger Glass Co. v. Wallace, 214

Va. 70, 74, 197 S.E.2d 191, 194 (1973), and a party can be

equitably estopped from raising the statute as a defense.     Cibula

v. Allied Fibers & Plastics, 14 Va. App. 319, 324-26, 416 S.E.2d

708, 711-12 (1992), aff'd, 245 Va. 337, 428 S.E.2d 905 (1993).

     "In the absence of fraud, [the] elements necessary to

establish an equitable estoppel are a representation, reliance, a

change of position, and detriment."    Rucker v. Thrift Transfer,
Inc., 1 Va. App. 417, 420, 339 S.E.2d 561, 562 (1986).    "Where a

party seeks to invoke the doctrine of estoppel he has the burden

of proving it by clear, precise and unequivocal evidence."     Rose

v. Red's Hitch and Trailer Services, 11 Va. App. 55, 59-60, 396

S.E.2d 392, 395 (1990).

     Initially, the carrier and employer agreed to pay for the

claimant's surgery and the related period of disability benefits.

 One year and eight months later, when the doctor recommended

that the claimant have the surgery, the insurance carrier

represented that it would not pay for the surgery until the

claimant submitted to depositions and an independent medical

examination.   At that time, neither the employer nor the carrier

informed the claimant that were the need for surgery verified,

it, nevertheless, would not pay the related disability benefits

as had been previously agreed.

     This claimant cannot be charged with the knowledge that,

beyond verifying the need for surgery, the carrier intended to

abrogate its previous agreement to pay the benefits.     See Cibula,


                                 -5-
14 Va. App. at 325-26, 416 S.E.2d at 711-12.    By taking the

position that it would require verification of the need for

surgery after having previously agreed to pay for it, the carrier

delayed the surgery until the statute of limitations ran for

filing a change in condition application.    The carrier did not

inform the claimant that even if the need for surgery was

verified, it was revoking or nullifying its agreement to pay for

the related disability benefits.    In fact, when the claimant

filed for benefits after the surgery, the employer filed a form

with the commission which represented that the only matter in

dispute was the period of disability, not the propriety of the

commission's review of the change in condition application.      The

refusal to pay for the previously agreed disability benefits

based on the statute of limitations bar was not raised until the

hearing.   Because the carrier and the employer failed to rescind

or change the agreement to pay for the surgery and related

disability benefits, as set forth in the letter of

March 29, 1990, the claimant was entitled to rely on that

agreement.     See Nabisco Brands, Inc. v. Jones, 12 Va. App. 1028,

1030-32, 407 S.E.2d 919, 920-21 (1991) (showing claimant was

induced by and relied on her employer's actions).    The carrier

did not abrogate its earlier representation to pay for the

disability benefits and the claimant had no knowledge that the

carrier wanted to do anything other than verify the need for



surgery.     See Cibula, 14 Va. App. at 325-26, 416 S.E.2d at


                                  -6-
711-12.

     We, therefore, reverse the commission's decision that

Code § 65.1-99 (now Code § 65.2-708) barred its review of

claimant's change in condition application.    We remand this case

to the commission to consider the application and to enter an

appropriate award, provided the claimant proves a related period

of disability.

                                              Reversed and remanded.




                               -7-
