                    COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton and Kelsey
Argued at Richmond, Virginia


RONALD L. MORISSETTE
                                          MEMORANDUM OPINION * BY
v.   Record No. 1820-02-2                 JUDGE D. ARTHUR KELSEY
                                            FEBRUARY 19, 2003
CUSTOM TELEPHONE SERVICE, INC. AND
 VIRGINIA FARM BUREAU FIRE & CASUALTY
 INSURANCE COMPANY


          FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

            Gregory O. Harbison (Geoffrey R. McDonald &
            Associates, P.C., on brief), for appellant.

            Cathie W. Howard (Pierce & Howard, P.C., on
            brief), for appellees.


     Ronald L. Morissette asserts that the Virginia Workers'

Compensation Commission erroneously characterized his claim as a

change-of-condition request seeking "additional compensation," and

thus, subject to the 90-day limitation of Va. Work. Comp. Rule

1.2(B).   Even if the time bar applied, Morissette contends, his

claim nonetheless should have been allowed under the doctrine of

imposition.   For the following reasons, we disagree with

Morissette and affirm the commission.




         * Pursuant to Code § 17.1-413 this opinion is not
designated for publication.
                                  I.

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

favorable to the prevailing party" before the commission.     Tomes

v. James City (County Of) Fire, 39 Va. App. 424, 429, 573 S.E.2d

312, 315 (2002); Grayson County Sch. Bd. v. Cornett, 39 Va. App.

279, 281, 572 S.E.2d 505, 506 (2002).

     CTS employed Morissette from December 4, 1997 to August 30,

1999 as a "computer installer."   Morissette suffered an injury to

his back in October 1998, but was able to work until he

experienced severe pain on the morning of December 2, 1998.   From

December 2, 1998 until January 8, 1999, he was unable to work.

During this period, CTS paid Morissette an advance on his wages so

that he would have income "until the workmen's compensation first

check came in."   An award was entered in January 1999 granting

Morissette compensation for temporary total incapacitation

beginning December 9, 1998.   Morissette returned to work on light

duty on April 15, 1999.   Upon returning to work, Michael Barbeau,

president of CTS, told him "things were tight" financially.

Morissette told Barbeau "he would work with the company as long as

things did not get out of hand," and he returned to work knowing

that he would not then receive wages for his light duty work.

     On April 16, 1999, Morissette signed an Agreed Statement of

Fact (ASF) and Supplemental Memorandum of Agreement (MOA)

reflecting that he returned to work on April 15 at a lower than



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pre-injury average weekly wage of $173.04.   The commission

approved the MOA and entered a Supplemental Award Order on April

30, 1999, providing Morissette with temporary partial disability

benefits in the amount of $464.52 commencing April 15, 1999.    From

April 15, 1999, through July 26, 1999, a period of over three

months, Morissette received partial disability payments from the

carrier, Virginia Farm Bureau Fire & Casualty Insurance Company.

During this time, however, CTS paid him no wages.

     On July 20, 1999, Morissette signed another ASF and

supplemental MOA that showed him working at a lower than

pre-injury wage of $115.36 as of June 29, 1999.   The commission

entered a new Supplemental Award Order granting Morissette

temporary partial disability benefits in the weekly amount of

$502.98 commencing June 29, 1999.   Morissette worked at this rate,

still not receiving any wages from CTS, for another month.    On

September 1, 1999, Morissette started his own business and ceased

working for CTS.

     On November 15, 1999, Barbeau sent a letter stating that CTS

would pay Morissette certain reimbursable costs and commissions.

Barbeau, however, added that the proffered amount

          does not include the wages (part time
          workman comp) in the amount of $2768.64 that
          CTS owes you or the wages of $3461.58 that
          you were to refund CTS with the workman comp
          payment. If you insist pursuing the wages
          for the part time work, you will have to sue
          CTS over the $2768.64 and we will have to
          counter sue you for the $3461.58 that is
          owed CTS.

                              - 3 -
     On January 18, 2001, nearly sixteen months after leaving CTS,

Morissette filed a claim with the commission.   Morissette's claim

letter stated:

          Claimant seeks the payment of temporary
          total disability benefits from April 15,
          1999 through August 30, 1999. The
          Commission's file will reflect that he was
          placed on a Temporary Partial Award during
          this period that paid only $464.52.
          Claimant submits that he returned to work
          during this period. However, his employer
          never paid him any wages. Accordingly, he
          should have received full temporary total
          disability even though he had returned to
          work due to the employer's failure to make
          any payments.

(Emphasis added).   The commission characterized the claim as a

change-of-condition request seeking additional benefits rather

than as a mere enforcement action of an earlier award.       Despite

repeated references to the claim as such, Morissette did not

object to the characterization of his claim as a

change-of-condition request.

     CTS defended the claim by asserting that Rule 1.2(B) barred

Morissette's request for additional compensation and,

alternatively, by seeking a credit for amounts paid to Morissette,

including wages paid from December 2, 1998 through January 1999.

Under Rule 1.2(B), "[a]dditional compensation may not be awarded

more than 90 days before the filing of the claim with the

Commission."   The deputy commissioner agreed with CTS and

dismissed Morissette's claim.   The deputy commissioner also

awarded CTS a credit against future payments in the amount of

                                - 4 -
$3,887.70.   The full commission affirmed the deputy commissioner's

application of Rule 1.2(B) and declined to apply the doctrine of

imposition to cure the time default.     Imposition would not be

appropriate, the commission held, because Morissette "agreed, or

at least acquiesced, that he would not be paid his wages from

April 15, 1999, until August 30, 1999, because of the employer's

poor financial condition."

                                 II.

     Rule 1.2(B) serves as a narrow exception to the prohibition

against retroactive awards.   See generally Bristol Door & Lumber

Co. v. Hinkle, 157 Va. 474, 161 S.E. 902 (1932).    The rule allows

the commission to award additional compensation "retroactively for

a limited period of time" prior to the filing of a

change-of-condition request for additional compensation.    Graham

v. Peoples Life Ins. Co., 7 Va. App. 61, 68, 372 S.E.2d 161, 165

(1988) (en banc) (interpreting predecessor Rule 13(B)).    The

commission is "powerless to award benefits beyond the period

authorized by the rule."   Id.

     Morissette claims the commissioner erroneously characterized

his claim as one for additional compensation (implicating Rule

1.2(B)'s 90-day deadline), rather than one for enforcement of a

prior award (implicating the commission's continuing authority

under Code § 65.2-710).    If the claim had been properly deemed a

mere enforcement action, Morissette argues, the 90-day deadline

would not apply.

                                 - 5 -
     Because Morissette did not make this argument to the

commission, we will not consider it on appeal.   See Buck v.

Commonwealth, 247 Va. 449, 452-53, 443 S.E.2d 414, 416 (1994);

West Alex. Prop. v. First Va. Mort., 221 Va. 134, 138, 267 S.E.2d

149, 151 (1980); Shenk v. Shenk, 39 Va. App. 161, 169, 571 S.E.2d

896, 901 (2002) (To preserve an issue for appeal, the "specific

argument" made on appeal must have been made below.).

     Though Rule 5A:18 contains a "good cause" or "ends of

justice" exception to procedural default, we decline to use it in

this case.   See generally M. Morgan Cherry & Assocs., Ltd. v.

Cherry, 38 Va. App. 693, 701, 568 S.E.2d 391, 395 (2002) (en

banc).   This exception "is narrow and is to be used sparingly" by

appellate courts.   Redman v. Commonwealth, 25 Va. App. 215,

220-21, 487 S.E.2d 269, 272 (1997) (quoting Brown v. Commonwealth,

8 Va. App. 126, 132, 380 S.E.2d 8, 10 (1989)).   Morissette

presents no basis for declaring the commission's application of

Rule 1.2(B) to Morissette's claim to be a miscarriage of justice.

     Morissette also argues that, even if Rule 1.2(B) bars his

claim, the doctrine of imposition should apply and relieve him of

his procedural default.   Under the imposition doctrine, the

commission has "the power and authority not only to make and

enforce its awards, but to protect itself and its awards from

fraud, imposition and mistake."   Harris v. Diamond Constr. Co.,

184 Va. 711, 720, 36 S.E.2d 573, 577 (1946); see also Avon Prods.,



                               - 6 -
Inc. v. Ross, 14 Va. App. 1, 7, 415 S.E.2d 225, 228 (1992).    The

doctrine, however, requires a threshold showing of unfairness:

           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.

Butler v. City of Virginia Beach, 22 Va. App. 601, 605, 471 S.E.2d

830, 830 (1996).

     This threshold showing can be found in all Virginia cases

applying the doctrine.   In Avon Prods., Inc., 14 Va. App. at 7,

415 S.E.2d at 228, for example, we approved an award where the

employer incorrectly represented to the claimant that all

documents necessary to assure entry of the award had been timely

filed.   Similarly, in Odom v. Red Lobster # 235, 20 Va. App. 228,

456 S.E.2d 140 (1995), we permitted the claimant's late filing of

a claim because the employer and the commission had mistakenly led

her to believe that a timely claim had already been filed.    In

John Driggs Co. v. Sommers, 228 Va. 729, 735, 324 S.E.2d 694, 697

(1985), the Virginia Supreme Court relieved a claimant of an

erroneous average weekly wage calculation prepared by the employer

because the calculation "substantially deviate[d] from the

statutory guidelines."

     Here, the commission found that the circumstances of this

particular case have not worked an imposition upon Morissette.     We

agree.   No evidence suggests that CTS misled Morissette or used


                               - 7 -
"superior knowledge of or experience with the Workers'

Compensation Act" to deprive Morissette of his claimed

compensation.   Butler, 22 Va. App. at 605, 471 S.E.2d at 830.   In

November 1999, two months after Morissette left the employ of CTS,

Barbeau admitted that CTS owed Morissette the wages but claimed a

setoff for compensation CTS had previously paid.   Morissette,

however, did not file at that time an enforcement action or even a

request for additional compensation.   Instead, he waited sixteen

months to file a claim for temporary total benefits.   Neither

Morissette's delay nor his election to treat his claim as one for

temporary total benefits can be blamed, even indirectly, on CTS.

                                III.

     In sum, we affirm the commission's application of Rule 1.2(B)

to the claim for additional compensation.   Morissette failed to

preserve his objection to the commission's characterization of his

claim and did not present any persuasive reasons for applying the

doctrine of imposition. 1

                                                         Affirmed.




     1
       We do not address, nor is our holding meant to affect, the
possibility of any other viable right of action that may exist to
enforce Morissette's wage claim against CTS.

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