                    COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Coleman and Willis


CENTER FORD
AND
TWIN CITY FIRE INSURANCE COMPANY

v.   Record No. 2158-95-1                       MEMORANDUM OPINION *
                                                    PER CURIAM
BRYANT S. BYRD                                   FEBRUARY 20, 1996


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
             (Susan B. Potter; Vandeventer, Black,
             Meredith & Martin, on brief), for
             appellants.

             (Johnny C. Cope; Saunders, Stephenson,
             Cope, Olson & Yoffy, on brief), for
             appellee.



     Center Ford contends that the Workers' Compensation

Commission erred in finding that the doctrine of equitable

estoppel prevented it from relying upon the statute of

limitations contained in Code § 65.2-601 as a defense to

Bryant S. Byrd's claim for benefits.   Upon reviewing the record

and the briefs of the parties, we conclude that this appeal is

without merit.   Accordingly, we summarily affirm the commission's

decision.   Rule 5A:27.

     On appeal, we construe the evidence in the light most

favorable to the party prevailing below.    R.G. Moore Bldg. Corp.

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

must uphold factual findings made by the commission if supported
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
by credible evidence.     James v. Capitol Steel Constr. Co., 8 Va.

App. 512, 515, 382 S.E.2d 487, 488 (1989).

        On April 13, 1992, Byrd sustained a compensable left leg

injury while working for employer as a mechanic.    He reported the

injury to employer, who filed a First Report of Accident with the

commission on May 29, 1992.    On June 2, 1992, the commission

issued a notification letter to Byrd, enclosing a workers'

compensation guide.    Byrd denied receiving the letter or the

guide.
        Byrd testified that he received a Memorandum of Agreement

("MOA") from employer's insurance carrier, which he signed and

returned to the carrier.    Byrd stated that when he telephoned

Alice Pleasant, the carrier's representative, she assured him

that she would send the MOA to the commission as soon as she

received it from Byrd.    Shortly thereafter, Byrd began to receive

compensation checks.    Based upon these events, Byrd assumed that

he did not need to do anything else to file a timely claim.

Employer voluntarily paid compensation to Byrd from May 3, 1992

through July 5, 1994.

        Pleasant admitted that she sent the MOA to Byrd on June 30,

1992.    However, she denied that Byrd ever called her about the

MOA or that she ever received a signed MOA back from him.

Pleasant admitted that it was possible she sent the MOA to the

commission and that the commission did not receive it.

        On July 6, 1994, Pleasant filed an application to suspend



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Byrd's benefits alleging that he failed to cooperate with

vocational rehabilitation.   On July 11, 1994, the commission

notified Pleasant, with a copy to Byrd, that no award had ever

been entered.

     On October 13, 1994, Byrd's attorney filed an application

for benefits seeking entry of an award and resumption of

compensation.    Byrd admitted that he received a copy of the

commission's July 11, 1994 letter stating that no award had been

entered.   He did not understand the significance of this letter

until he consulted an attorney.
     "Code § 65.1-87 [now Code § 65.2-601] provides that the

right to compensation under the Workers' Compensation Act is

forever barred 'unless a claim be filed' with the . . .

Commission within two years after the injury by accident."

Keenan v. Westinghouse Elevator Co., 10 Va. App. 232, 233, 391

S.E.2d 342, 343 (1990).   It was undisputed that the claim filed

by Byrd's attorney on October 13, 1994 was not timely.

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

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.




                                - 3 -
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

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

(1991).
     In holding that employer was equitably estopped from relying

on the statute of limitations, the commission found as follows:

           Not only did the employer pay compensation

           benefits for more than two years, it paid

           cost-of-living benefits, hired a vocational

           rehabilitation consultant to work with the

           claimant, sent the claimant a Memorandum of

           Agreement and filed an Application for

           Hearing seeking to suspend benefits.    These

           actions are all actions that evidence the

           employer accepted the claimant [sic] and

           support the claimant's testimony that he

           relied upon employer's actions to his

           detriment.

     It was undisputed that employer accepted Byrd's claim as

compensable and sent him the MOA.   The commission was entitled to

accept Byrd's testimony that he signed and returned the MOA to



                               - 4 -
Pleasant, and that she assured him she would send the MOA to the

commission.   Byrd began receiving compensation checks shortly

after his conversation with Pleasant.   The commission could

reasonably infer from Byrd's testimony that he relied upon

Pleasant's actions and statements, which did in fact induce him

to refrain from filing a claim within the statutory period.

Because Byrd's testimony provides credible evidence to support

the commission's decision, we cannot find as a matter of law that

the commission erred in ruling that employer was equitably

estopped from relying upon the statute of limitations.
     For the reasons stated, we affirm the commission's decision.

                                         Affirmed.




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