                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Willis, Frank and Clements


LOUIS SMITH
                                             MEMORANDUM OPINION*
v.   Record No. 2679-01-4                         PER CURIAM
                                               FEBRUARY 5, 2002
COUNTY OF FAIRFAX SCHOOL BOARD


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Craig A. Brown; Ashcraft & Gerel, on brief),
             for appellant.

             (Michael N. Salveson; Hunton & Williams, on
             brief), for appellee.


     Louis Smith (claimant) contends the Workers' Compensation

Commission erred in refusing to apply the doctrine of imposition

to find that his November 18, 1999 claim seeking an award of

permanent partial disability ("PPD") benefits for impairment of

his right arm was not barred by the applicable statute of

limitations contained in Code § 65.2-708.       Upon reviewing the

record and the parties' briefs, we conclude that this appeal is

without merit.     Accordingly, we summarily affirm the

commission's decision.     Rule 5A:27.

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

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

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

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
       So viewed, the evidence proved that claimant was last paid

compensation pursuant to an award through July 17, 1995 and that

he received his full salary while performing light duty work

until he retired on December 23, 1995.      Thus, under Code

§ 65.2-708(C), claimant had until December 23, 1998 to file his

claim for PPD benefits. 1     He filed a timely claim on January 22,

1998 seeking an award of PPD benefits to his right arm and

shoulder based upon a twenty percent disability rating by

Dr. John Bruno.      Claimant asserted a loss of use of his right

arm.       When the commission referred the claim to the hearing

docket, it stated in its January 4, 1999 letter to the parties

that the application was "based on a permanent disability rating

from Dr. Bruno of 20% to the right arm."      The deputy

commissioner denied the claim because claimant's medical

evidence showed that the twenty percent rating was applicable to

the right shoulder and failed to prove a disability rating to a

scheduled member, i.e., claimant's right arm.       The full




       1
       Code § 65.2-708(A) provides that no review of an award
upon the ground of change in condition "shall be made after
twenty-four months from the last day for which compensation was
paid pursuant to an award under this title, except: (i)
thirty-six months from the last day for which compensation was
paid shall be allowed for the filing of claims under § 65.2-503
. . . ." Subsection (C) provides further that "[a]ll wages
paid, for a period not exceeding twenty-four consecutive months,
to an employee (i) who is physically unable to return to his
pre-injury work due to a compensable injury and (ii) who is
provided work within his capacity at a wage equal to or greater
than his pre-injury wage, shall be considered compensation."

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commission affirmed that denial, and the decision became final

upon expiration of the appeals period.

     Appellant's second application for PPD benefits was not

filed until November 19, 1999, almost one year after the

expiration of the limitations period.    Thus, his second claim

for PPD benefits was untimely unless the doctrine of imposition

applied to save his claim.

      In refusing to apply the doctrine of imposition, the

commission found as follows:

               The Deputy Commissioner held that the
          second claim was not barred because there
          was imposition. The Deputy Commissioner
          noted that the letter referring the first
          claim to the docket stated the referral was
          based on a rating "to the right arm." The
          Deputy Commissioner characterized this as
          "inaccurate and misleading."

               The Deputy Commissioner did not explain
          how this statement was inaccurate or
          misleading. In fact, the statement was
          consistent with claimant's characterization
          of his claim: "Please accept this letter as
          claimant's statement on the Record in
          connection with the Application for hearing
          filed on January 21, 1998, seeking an award
          of permanent partial disability benefits to
          his right arm and shoulder based on the
          rating of 20% by Dr. John Bruno," . . .
          "[W]e submit that the claimant has shown he
          suffered a loss of use of right arm."

     The commission went on to quote employer as follows:

          "It defies logic to suggest that the
          Commission's solitary reference to
          claimant's right arm rather than his right
          shoulder misled the claimant into believing
          that his own medical evidence regarding the
          disability to his shoulder was automatically

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          converted into medical evidence relating to
          his right upper extremity. The medical
          records speak for themselves on that issue,
          as Deputy Commissioner Phillips and the Full
          Commission rightly determined with respect
          to claimant's first PPD claim. In short,
          the claimant had every opportunity to
          develop medical evidence regarding the
          appropriate disability rating, if any,
          applicable to his right arm. He simply
          failed to do so in a timely fashion.
          Neither the employer nor the Commission
          impeded or precluded the claimant's efforts
          to obtain such evidence and thus worked no
          'imposition' upon the claimant."

     In Strong v. Old Dominion Power Co., 35 Va. App. 119, 543

S.E.2d 598 (2001), we recognized as follows:

          The doctrine of imposition "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." The
          commission is empowered "to do full and
          complete justice."

               The doctrine prevents an employer's [or
          the commission's] use of its superior
          knowledge of, or experience with, the
          Workers' Compensation Act or its use of
          economic advantage to cause an unjust
          deprivation to the employee of benefits
          provided by the Act. "[T]he doctrine
          applies where, . . . the record shows a
          series of acts by the employer [or the
          commission] . . . upon which a claimant
          naturally and reasonably relies to his or
          her detriment."

Id. at 126-27, 543 S.E.2d at 601 (citations omitted).

     Nothing in this record established that the employer or the

commission committed a series of acts upon which claimant

naturally or reasonably relied to his detriment causing him not



                              - 4 -
to file a timely PPD claim for his right arm.   No evidence

showed that the employer or the commission used economic

leverage or superior knowledge of the Act to effect an unjust

deprivation of benefits, and nothing indicated that they did not

endeavor to comply with the Act.

     We agree that the commission's sole reference to claimant's

right arm in its January 4, 1999 letter referring his first

claim to the docket was not sufficient to invoke the doctrine of

imposition.   At that time, claimant asserted that he was seeking

an award of PPD benefits to his right arm and his shoulder.     In

addition, his own medical evidence showed a disability rating to

his right shoulder not his right arm.   More importantly, the

limitations period expired on December 23, 1998 before the

commission sent its January 4, 1999 letter to the parties.

Therefore, claimant could not have relied to his detriment upon

the letter sent on January 4, 1999 to prevent him from filing a

timely PPD claim for his right arm.

     The record supports the commission's finding that claimant

had ample opportunity to file a timely claim for PPD benefits

for impairment to his right arm, but simply failed to do so.

     For these reasons, we affirm the commission's decision

refusing to invoke the doctrine of imposition to save claimant's

PPD claim.

                                                           Affirmed.



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