                   COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Elder and Annunziata
Argued at Richmond, Virginia


RONALD W. CRAFT
                                          MEMORANDUM OPINION* BY
v.   Record No. 0874-01-2                  JUDGE LARRY G. ELDER
                                             NOVEMBER 6, 2001
COMMERCIAL COURIER EXPRESS, INC. AND
 MICHIGAN MUTUAL INSURANCE COMPANY


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          T. Bryan Byrne for appellant.

          S. Vernon Priddy III (Sands Anderson Marks &
          Miller, on brief), for appellees.


     Ronald W. Craft (claimant) appeals from a decision of the

Workers' Compensation Commission (commission) holding that the

statute of limitations barred his May 1, 1998

change-in-condition application for an award of temporary total

and permanent partial disability benefits from Commercial

Courier Express, Inc. and Michigan Mutual Insurance Company

(employer) for injuries he sustained on July 11, 1994.    We

reject claimant's contentions that a de facto award existed or

that imposition or equitable estoppel prevented employer from

asserting the statute of limitations as a defense, and we hold



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
that the statute of limitations bars the current application for

disability benefits. 1

     Assuming without deciding that the existence of a de facto

award may impact the operation of the statute of limitations on

the timeliness of a change-in-condition application, no de facto

award existed here. 2    "[A] de facto award will be recognized"

where "the employer [(1)] has stipulated to the compensability

of the claim, [(2)] has made payments to the employee for some

significant period of time without filing a memorandum of


     1
       We reject employer's contention that appellant waived his
right to challenge the statute of limitations on appeal or that
the appeal is barred because the commission already ruled on
this issue. Claimant's argument was akin to pleading in the
alternative and does not prevent him from challenging
application of the statute of limitations based on some
exception. See 2 Charles E. Friend, The Law of Evidence in
Virginia § 18-47, at 243-45 (4th ed. 1993); see also, e.g.,
Chesapeake & Potomac Tel. Co. v. Williams, 10 Va. App. 516, 519,
392 S.E.2d 846, 848 (1990). Further, the deputy commissioner's
consideration of these claims constituted an implicit holding
that the orders dismissing claimant's claims applied only to
those claims which were pending at the time claimant failed to
appear for his deposition. The order served as a sanction for
claimant's failure to appear for his deposition on April 10,
1998, and it was within the discretion of the commission to
determine the scope of that sanction. See Craft v. Commercial
Courier Express, Inc., No. 1517-99-2, slip op. at 2-3 (Va. Ct.
App. Dec. 7, 1999). That dismissal directly affected only the
claims "pending" as of the date of the dismissal, April 13,
1998. Id.
     2
       The existence of a de facto award would not save the claim
for temporary disability benefits because the two-year statute
of limitations on the temporary disability claim would have
expired on June 29, 1997, well before claimant's May 1, 1998
change-in-condition application.




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agreement, and [(3)] fails to contest the compensability of the

injury," because, under those circumstances, "it is 'reasonable

to infer that the parties ha[ve] reached an agreement as to the

payment of compensation.'"    Ryan's Family Steak Houses, Inc. v.

Gowan, 32 Va. App. 459, 463, 528 S.E.2d 720, 722 (2000) (quoting

Nat'l Linen Serv. v. McGuinn, 5 Va. App. 265, 269-70, 362 S.E.2d

187, 189 (1987) (en banc)).

     Here, employer accepted the initial injury and disability

as compensable, and it promptly filed a memorandum of agreement

when claimant experienced a subsequent period of disability

beginning December 2, 1994.   Employer promptly asked the

commission to vacate the award when it discovered an error in

the compensation rate.   Immediately after the commission vacated

the award, employer notified claimant and the commission that it

also contested the issues of causation and extent of disability,

and employer promptly terminated claimant's benefits.   Thus, a

de facto award did not exist because employer's actions

ultimately belied any assumption that the parties had reached an

agreement and because appellant was aware of the absence of an

agreement no later than September 1995, leaving him ample time

remaining in which to pursue his claims.   It was claimant's

choice to withdraw his claim for an award for temporary total

disability benefits beginning December 2, 1994 at the December

1995 hearing before the deputy commissioner, and it was



                                - 3 -
claimant's refusal to appear for deposition that resulted in the

dismissal of additional timely filed claims.

     The doctrine of imposition does not apply to toll the

statute of limitations.   Imposition is based on the principle

that "the commission has 'jurisdiction to do full and complete

justice in each case,' . . . even though no fraud, mistake or

concealment has been shown."   Avon Prods., Inc. v. Ross, 14 Va.

App. 1, 7, 415 S.E.2d 225, 228 (1992) (quoting Harris v. Diamond

Constr. Co., 184 Va. 711, 720, 36 S.E.2d 573, 577 (1946)).

"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 Va. Beach, 22 Va. App. 601,

605, 471 S.E.2d 830, 832 (1996).   The doctrine does not apply

where the employer's acts are consistent with an endeavor to

comply with the Act.   See Cheski v. Arlington County Pub. Schs.,

16 Va. App. 936, 940, 434 S.E.2d 353, 356 (1993).

     Nothing in this record establishes that employer used

economic leverage or superior knowledge of the Act to effect an

unjust deprivation of benefits, and nothing indicates it did not

endeavor to comply with the Act.   To the contrary, employer

accepted the claim for disability benefits from December 2, 1994

and continuing, paid those benefits voluntarily, and prepared a



                               - 4 -
supplemental memorandum of agreement upon which the commission

entered a compensation award.    Employer's request to vacate the

award due to an error in the compensation rate and its

subsequent challenge to the award based on issues of causation

and extent of disability reflect nothing further than the

exercise of its rights under the Act.    Although claimant

contends employer acted to avoid paying benefits after claimant

rejected employer's settlement offer, claimant withdrew his

request for entry of an award for the period of December 2, 1994

through June 29, 1995 and continuing, thereby depriving the

commission of the opportunity to determine claimant's ongoing

entitlement to those benefits.    Finally, as discussed above,

claimant's actions in failing to appear for his deposition,

which resulted in the dismissal of his pending claims and

expiration of the applicable statutes of limitations, were the

ultimate cause of his inability to pursue his claims.

     Finally, equitable estoppel also does not toll the statute

of limitations under the facts of this case.   "In the absence of

fraud, [the] elements necessary to establish an equitable

estoppel are a representation, reliance, a change in position,

and detriment."   Rucker v. Thrift Transfer, Inc., 1 Va. App.

417, 420, 339 S.E.2d 561, 562 (1986).    An "employer is not

estopped from asserting the statute of limitations defense

merely because it voluntarily paid (1) medical bills, (2) wages,



                                 - 5 -
or (3) benefits."   Strong v. Old Dominion Power Co., 35 Va. App.

119, 125, 543 S.E.2d 598, 600 (2001) (citations omitted).

     Despite claimant's contentions, our holding in Fernandes v.

Handyman Servs., Inc., 20 Va. App. 708, 460 S.E.2d 602 (1995),

does not estop employer from asserting the statute of

limitations.   In claimant's case, like in Fernandes, employer

agreed in writing to the compensability of the initial claim and

the period of disability beginning December 2, 1994.    However,

unlike in Fernandes, employer unequivocally withdrew from that

written agreement before the statute of limitations for filing a

change-in-condition application had expired.   Furthermore, it

did so (1) in September 1995, substantially in advance of that

expiration, (2) in writing, and (3) at a time after claimant had

retained counsel.   Claimant's subsequent withdrawal of his

request for entry of an award for the disputed period and his

failure to appear for his deposition, rather than any actions of

employer, were the ultimate cause of his inability to pursue his

claims.

     Thus, we affirm the commission's decision denying

claimant's application for temporary total and permanent partial

disability benefits.   We note, however, that Deputy Commissioner

Herring's opinion of December 8, 1998 provides that employer

"shall continue to be responsible for medical care and treatment

proximately related to the July 11, 1994, left leg and right arm



                               - 6 -
injuries suffered by [claimant] for as long as necessary."

Because the commission's June 3, 1999 dismissal of claimant's

claims was without prejudice, claimant remains free to refile

any claims for medical benefits which were dismissed pursuant to

the deputy commissioner's December 8, 1998 opinion as well as

any other claims for medical treatment.

                                                        Affirmed.




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