                      COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Frank and Senior Judge Hodges
Argued at Chesapeake, Virginia


HOME BENEFICIAL CORPORATION AND
 CONTINENTAL INSURANCE COMPANY
                                              MEMORANDUM OPINION* BY
v.   Record No. 1155-99-1                      JUDGE ROBERT P. FRANK
                                                   MAY 30, 2000
MARGARET M. JACKSON


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Jennifer Marwitz (William F. Karn; Law
          Offices of Roya Palmer Ewing, on brief), for
          appellants.

          No brief or argument for appellee.


     Home Beneficial Corporation and Continental Insurance

Company (appellants) contend the Workers' Compensation

Commission (commission) erred in finding that appellants are

equitably estopped from asserting the two-year limitations

period contained in Code § 65.2-601.     We disagree and affirm the

commission's decision.

                            I.   BACKGROUND

     Margaret M. Jackson (claimant) sustained a compensable

right knee injury on January 4, 1996.     She filed her claim for

benefits on March 13, 1998, more than two years after the date

of the accident.   She testified that not too long after her

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
accident, she received papers, including an informational

pamphlet ("Blue Letter"), from the commission.   She took those

papers to one of her supervisors, either Gary Pope or Joseph

Padgett, and asked what she should do with the papers.

According to claimant, Pope responded that she did not have to

do anything because "everything had been taken care of."

     Claimant stated that when she received papers, including

medical bills, she took them to one of her supervisors.    The

supervisors always told her that everything had been done.

Therefore, she "didn't do anything."

     Claimant admitted that she never read the "Blue Letter"

sent by the commission.   She did not remember whether her

supervisor looked at the papers from the commission, but did not

believe that he read those documents.

     Gary Pope, one of the supervisors, testified that he did

not recall the specifics of any conversation with claimant.      He

testified that she did bring in some forms.   He stated, "But as

far as the statement that everything was taken care of, that was

on behalf of the company's part of it."   Pope later indicated

that he did not recall having any conversations with claimant

when she brought in the workers' compensation forms, but did

recall her bringing in medical bills.   He did not recall telling

claimant that she did not have to do anything.

     The other supervisor, Joseph Padgett, did not recall

claimant bringing in any workers' compensation papers.

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     The commission concluded:

          Based upon the evidence presented, the
          Deputy Commissioner impliedly found the
          claimant's testimony to be credible. We
          have carefully reviewed the record, and
          agree with this credibility determination.
          Pope as much as admitted that he had told
          the claimant that everything had been taken
          care of, although he indicated that he was
          referring merely to the employer's
          processing of the claim. We conclude that
          the conversation took place as asserted by
          the claimant.

     The commission held that appellants were estopped from

asserting the two-year statute of limitations.

                             II.   ANALYSIS

     Appellants do not dispute the commission's finding of fact

as to their representation to claimant.       Instead, appellants

contend since claimant received the commission's "Blue Letter,"

which fully advised her of her rights and responsibilities under

the Act, she is not entitled to a finding of equitable estoppel.

     The findings of the commission, if based upon credible

evidence, are conclusive and binding upon this Court.       See Code

§ 65.2-706; Falls Church Constr. Co. v. Laidler, 254 Va. 474,

478-79, 493 S.E.2d 521, 524 (1997) (citations omitted); Southern

Express v. Green, 26 Va. App. 439, 445, 495 S.E.2d 500, 503

(1998) (citation omitted).

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

and unequivocal evidence" that he or she relied to his or her

detriment upon an act or statement of the employer or its agent


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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) (citing Brown v. Lawson

Transportation Corp., 7 Va. App. 679, 681, 377 S.E.2d 136, 137

(1989)).    Estoppel "does not require proof that the

representation be false or that the employer intend to induce

reliance.    The employee's case is made if the 'representation

. . . did in fact induce the [employee] to refrain from

filing.'"    Cibula v. Allied Fibers & Plastics, 14 Va. App. 319,

325, 416 S.E.2d 708, 711 (1992) (quoting Stuart Circle Hosp. v.

Alderson, 223 Va. 205, 208, 288 S.E.2d 445, 446 (1982)).

"[P]roof of a representation, reliance, change of position, and

detriment is sufficient to establish equitable estoppel."       Id.

at 324, 416 S.E.2d at 711 (citations omitted).

     Appellants cite Cibula for the underlying importance of

receipt of the commission's "Blue Letter" in the context of

equitable estoppel.    We find appellants' reliance on Cibula

misplaced.

     In Cibula, the commission found that when the claimant

asked the employer's agent what he needed to do, the agent

informed the claimant that he needed to do nothing except turn

in his expense statements.     See id. at 321, 416 S.E.2d at 709.

There was a further finding that the employer's agent told the

claimant that "the claim had been turned in to the . . .

Commission."    Id.   The commission further found that claimant

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never received the "Blue Letter" from the commission, which

would have provided the claimant with the statutory notice

concerning the filing procedure.    See id. at 321-22, 416 S.E.2d

at 709-10.   This Court found that the uncontroverted evidence

supported the claimant's contentions that he had no reason to

know that he had to take other action on his claim and that he

relied upon the agent's representation.    See id. at 325, 416

S.E.2d at 711-12.   In reversing the commission, this Court found

that the claimant need not prove that the representation be

false or that the employer intended to induce reliance.     See id.

     Appellants, however, rely on dicta in Cibula in support of

their position.   They contend that equitable estoppel should not

apply in the instant case since claimant received the "Blue

Letter," which, had claimant read it, would have informed her

that she had to take other actions on her claim.   The issue in

Cibula was the commission's ruling that the claimant "was

required to prove 'a false representation or concealment of

material facts' or an 'intent [by Allied] to have [Cibula] act

upon the misrepresentation or concealment.'"    Id. at 324, 416

S.E.2d at 711.    The discussion of the "Blue Letter" was not

central to the ratio decidendi and was, therefore, dicta.       We

are not bound by dicta.    See Harmon v. Peery, 145 Va. 578,

583-84, 134 S.E. 701, 703 (1926).

     Further, in Cheski v. Arlington County Public Schools, 16

Va. App. 936, 434 S.E.2d 353 (1993), decided after Cibula, we

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again addressed equitable estoppel in the context of the "Blue

Letter."      In Cheski, the claimant received the "Blue Letter" but

did not file her claim within the two-year limitation period.

See id. at 938, 434 S.E.2d at 354.         The claimant maintained that

"the employer's 'course of conduct' induced her to not [timely]

file a claim with the commission."         Id. at 939, 434 S.E.2d at

355.       This Court analyzed the facts to determine if there was

such an inducement.       See id. at 939-40, 434 S.E.2d at 355-56.

If, as appellants assert, Cibula stands for the proposition that

the receipt of the "Blue Letter" in itself bars equitable

estoppel, the Cheski Court would not have needed to determine

whether the employer's "course of conduct" induced claimant not

to file her claim.

       We are persuaded that whether or not claimant received the

"Blue Letter" is not a factor in an analysis of equitable

estoppel as long as the claimant proves the elements of

equitable estoppel. 1



       1
       Code § 65.2-601 only requires that the claim be filed with
the commission within two years. The Code and the Rules of the
Commission do not require that the claimant, himself, file the
claim.
     In this case, even if claimant had read the commission's
"Blue Letter," she still could reasonably rely on her
supervisor's representation that the employer would file the
appropriate claim on her behalf.
     This opinion is limited to situations where equitable
estoppel is used in a statute of limitations context.
     We do not address the implication of a claimant receiving
the "Blue Letter" when "tolling" of the statute of limitations
under Code § 65.2-602 is the issue.

                                   - 6 -
     The commission found that claimant met her burden.   In its

opinion, the commission stated:

          We find that the claimant has met her burden
          of proving equitable estoppel. Her
          testimony establishes clear, concise and
          unequivocal evidence that she reasonably
          relied upon the statements of her supervisor
          and therefore did not file her claim.
          Although the employer did not have
          fraudulent intent to mislead the claimant,
          we find that Pope's statements did, in fact,
          induce the claimant to understand that she
          needed to take no further action in order to
          perfect her claim. Through its actions, the
          employer lulled the claimant into a belief
          that her claim was accepted and that she did
          not have to take any further actions to
          protect her rights.

     We agree with the commission and affirm its decision.

                                                          Affirmed.




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