                    COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Richmond, Virginia


WESTVACO CORPORATION
                                          MEMORANDUM OPINION * BY
v.         Record No. 1104-96-2            JUDGE LARRY G. ELDER
                                             DECEMBER 31, 1996
CARL EDWARD LINKENHOKER, SR.


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           Kathryn Spruill Lingle (Midkiff & Hiner,
           P.C., on briefs), for appellant.
           Gary Wheeler Kendall (Edmund R. Michie;
           Michie, Hamlett, Lowry, Rasmussen & Tweel,
           P.C., on brief), for appellee.



     Westvaco Corporation (employer) appeals from a decision of

the Workers' Compensation Commission (commission) awarding

medical benefits to Carl Edward Linkenhoker, Sr. (claimant) and

finding that his claim was not barred under the statute of

limitations.   Employer contends that the commission erred in

ruling that the doctrine of imposition prevents employer from

asserting the statute of limitations as a bar to claimant's

claim.   For the reasons that follow, we reverse.

                                   I.

                                  FACTS

     On March 3, 1993, claimant, a journeyman machinist with

employer, injured his back in a work-related accident.    During

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the two years following the accident, employer treated claimant's

injury as compensable under the Workers' Compensation Act (Act).

Although claimant missed no work as a result of his accident, he

required numerous medical examinations and treatments for his

injury.   At least some of his appointments were arranged through

the employer's medical department and all were paid for by

employer through its workers' compensation insurance.   Employer

also compensated claimant for his milage to and from medical

appointments.   However, claimant testified that employer never

told him that it would file a worker's compensation claim on his

behalf.   Although employer treated claimant's injury as

compensable under the Act, the record indicates that it did not

file a memorandum of agreement with the commission regarding

claimant's claim.
     Employer filed its first notice of the accident with the

commission, a minor injury report, on July 24, 1993.    This report

indicates that as of July 24, claimant's total medical costs

totaled $844.   After this date, claimant saw doctors five times

in 1994 and once in 1995.   Employer filed its first report of

accident on September 22, 1995.

     The record reflects that claimant filed an unrelated claim

for asbestosis in 1992 and that the commission mailed claimant a

notification letter and pamphlet advising him of the requirement

that he file a claim.   Claimant testified that he did not recall

receiving any notices or pamphlets from the commission until




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June, 1995.

     In July, 1995, employer informed claimant that it would no

longer pay any medical expenses related to his back injury, and

on July 10, 1995, claimant filed an application for hearing with

the commission.   After a deputy commissioner denied claimant's

claim because it was barred by the statute of limitations, the

full commission reversed and awarded medical benefits to claimant

for his back injury.   Regarding the timeliness of claimant's

claim, the commission held that the doctrine of imposition tolled

the bar of the statute of limitations over the claim because

employer did not file a memorandum of agreement after accepting

the claim as compensable and did not comply with the commission's

reporting requirements.
                                II.

                       DOCTRINE OF IMPOSITION

     Employer contends that the commission erred when it held

that employer was barred from asserting that the two year statute

of limitations of Code § 65.2-601 barred claimant's claim because

employer had imposed upon claimant.   We agree.

     "Within the principles established by statutes and the

decisions construing them, the commission has 'jurisdiction to do

full and complete justice in every case.'   From that principle

has developed the concept known as 'imposition,' which empowers

the commission in appropriate cases to render decisions based

upon justice shown by the total circumstances even though no




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fraud, mistake or concealment has been shown."    Odom v. Red

Lobster, 20 Va. App. 228, 234, 456 S.E.2d 140, 143 (1995)

(quoting Avon Products, Inc. v. Ross, 14 Va. App. 1, 7, 415

S.E.2d 225, 228 (1992)).   When applying the doctrine of

imposition, "[t]he issue is whether under the totality of the

circumstances shown, the actions of the employer and its carrier

created an imposition on the commission and the claimant which

empowered the commission [to] 'do full and complete justice.'"
Avon, 14 Va. App. at 8, 415 S.E.2d at 229.

     We hold that this is not a case in which the commission was

empowered to exercise its jurisdiction beyond the expiration of

the two year limitations period.   Although employer neither

complied with the commission's reporting requirements nor filed a

memorandum of agreement after accepting claimant's claim as

required by Code § 65.2-701, these actions by themselves do not

necessarily constitute a de jure case of imposition.    Odom, 20

Va. App. at 235, 456 S.E.2d at 143 (stating that whether

imposition has occurred is determined by the totality of the

circumstances and not bright line rules).    Instead, circumstances

other than the employer's acts contributed to the untimely filing

of claimant's claim.   The record indicates that claimant had

prior experience with the workers' compensation system and was

aware before the expiration of the limitations period that the

procedure for securing benefits involved filing a claim with the

commission.   In 1992, claimant hired his current attorney and



                                -4-
filed a claim with the commission for asbestosis.    Significantly,

claimant testified that employer never told him that it had filed

a claim for his 1993 injury on his behalf.   Thus, claimant's

failure to file a claim before the expiration of the statute of

limitations was the result of his own failure to act rather than

being caused by any actions of employer.   Because claimant was

aware of the existence of procedural requirements necessary to

preserve his claim and because he had a prior relationship with

an attorney familiar with the Act, we cannot say that the current

statutory bar of claimant's claim was caused by the employer

imposing upon the commission or upon the claimant.    See Butler v.

City of Virginia Beach, 22 Va. App. 601, 605, 471 S.E.2d 830, 832

(1996).

     In light of the foregoing reasons, we reverse the decision

of the commission.

                                                          Reversed.




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