Odom v. Red Lobster No. 235

• Decision Date: 18 April 1995
• Docket Number: No. 1193-94-4,1193-94-4
• Citation: 20 Va.App. 228,456 S.E.2d 140
• Parties: Shirley J. ODOM v. RED LOBSTER # 235, et al. Record
• Court: Virginia Court of Appeals

Page 140

456 S.E.2d 140

20 Va.App. 228

Shirley J. ODOM v. RED LOBSTER # 235, et al.

Record No. 1193-94-4.

Court of Appeals of Virginia Alexandria.

April 18, 1995.

(Donald Allen, on brief), for appellant. Appellant submitting on brief.

Lisa C. Healey (Elizabeth A. Zwibel; Siciliano, Ellis, Dyer & Boccarosse, on brief), for appellees.

Present: KOONTZ and FITZPATRICK, JJ., and DUFF, Senior Judge.

KOONTZ, Judge.

Shirley J. Odom (claimant) appeals an order of the Virginia Workers' Compensation Commission (commission) dismissing her claim for benefits as not timely filed. Claimant asserts that the statute of limitations was tolled by estoppel or, in the alternative, that the doctrine of imposition permits the commission to accept the filing of her claim in order to do full justice. ¹ Because the acts and omissions of Liberty Mutual Insurance Company (carrier), the workers' compensation carrier for claimant's employer Red Lobster # 235 (employer), and the acts of the employees of the commission served to prejudice the claimant, we hold that the doctrine of imposition should be applied to the facts of this case. Accordingly, we reverse and remand with instructions to reinstate the claim on the hearing docket.

Claimant sustained a work-related injury on January 15, 1990 when she slipped and fell in employer's kitchen, injuring her right knee. Carrier accepted the claim as compensable and paid benefits without an award through August 6, 1992. On that date, carrier ceased payments, asserting that, pursuant to the two-year statute of limitations of Code § 65.2-601, the claim was time-barred from January 15, 1992. On December 31, 1992, claimant filed an application with the commission to determine whether employer and carrier were estopped from asserting the statute of limitations. See Code § 65.2-602 (providing for the tolling of the statute of limitations under certain circumstances). Claimant sought temporary total disability benefits for the period January 24, 1990 to August 17, 1992 (one and one-half weeks more than she was actually paid) and unspecified permanent partial disability benefits.

The record shows that employer filed a first report of accident on March 4, 1990. Prior to that date, claimant had received a workers' compensation pamphlet from carrier and began receiving regular temporary total disability payments. At no time did carrier or employer file a memorandum of agreement with the commission accepting the claim as compensable. See Code § 65.2-701.

Carrier's pamphlet identifies the wage loss and medical benefits payable under the Workers' Compensation Act and included handwritten calculations of the wage loss benefits claimant would receive. Among other statements made in the pamphlet, claimant was informed that carrier "do[es] not require you to employ anyone to help you secure the benefits to which you are entitled. They are paid voluntarily by [carrier] for injuries and disabilities covered under the Act." The pamphlet further stated that "[c]hecks are issued every 14 days, and they will continue until you are physically able to return to work."

The concluding paragraph of the pamphlet stated that claimant "[could] deal directly with [carrier], one of the most respected service-oriented insurance companies in the country." Following this paragraph, the pamphlet stated that "information is available" from the commission if "questions remain." This final provision was substantially obliterated by a stamp giving the address of the commission. Claimant testified that she understood this pamphlet to mean that her claim had been accepted and that she would receive benefits so long as she remained disabled.

During the period that claimant was receiving wage loss benefits, carrier informed her twice by letter that she was receiving an upward cost-of-living adjustment in the benefits to which she was "entitled ... under Section 65.1-99.1." Carrier also paid for all medical and rehabilitation services and sent a nurse to claimant's home to discuss her rehabilitation program. During this period, claimant had numerous telephone and personal contacts with carrier's claims personnel regarding receipt of her benefits. She was not advised during these contacts that she needed to file a claim with the commission.

Claimant contacted the Richmond office of the commission in October 1990 by telephone and was told that she "[had] a claim number and it had been filed and everything [was] all right" with her claim. After this contact, the commission sent claimant a standard "blue letter" pamphlet instructing her to secure her rights by filing a claim within the statutory time period. In January 1992, recognizing that the statute of limitations would soon expire, claimant's counsel contacted both the Alexandria and Richmond offices of the commission and was informed that the claim had been filed.

When carrier ceased payment of benefits, claimant filed an application for benefits, asserting that employer and carrier were estopped from relying on the statute of limitations. The deputy commissioner ruled that carrier's acts did not support a finding "of fraud, concealment or imposition or [have] in any way acted to prejudice the rights of the claimant." With respect to the acts of the employees of the commission, the deputy commissioner opined that the filing of the Employer's First Report of Accident could be interpreted as the "claim" referred to by commission employees contacted by claimant and her counsel.

Claimant sought review of this decision by the full commission. The majority of the commission affirmed the deputy commissioner's findings. The dissenting commissioner noted that carrier's benefits pamphlet contained phrases which implied that claimant need not act so long as carrier accepted her claim as compensable. This commissioner concluded by noting that claimant's "impression that her claim had been accepted as compensable and that she would receive all legal entitlement was reinforced by statements of the Workers' Compensation Commission.... [T]he carriers' conduct served to lull the claimant into a sense that [an] agreement had been reached.... It would be a manifest injustice as well as contrary to the Act to bar the claim in this context."

We agree with the majority of the commission that the carefully drafted phrases of carrier's pamphlet, even when viewed in the overall context of carrier's conduct in handling claimant's benefits, do not rise to the level of fraud dictated by the standard for estoppel applied to workers' compensation claims in this Commonwealth. On appellate review, the Court "will construe the evidence in the light most favorable to the prevailing party." Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va.App. 503, 504, 339 S.E.2d 916, 916 (1986). Following that standard, we cannot say that carrier's acts and omissions evince a "reasonably calculated [effort] to induce ... [the employee] to refrain from filing [a] claim." Stuart Circle Hosp. v Alderson, 223 Va. 205, 208, 288 S.E.2d 445, 446-47 (1982).

Although claimant's belief that she was not required to take further action to secure her benefits was reasonable and compelling, the doctrine of estoppel requires the aggrieved party to show an affirmative, deliberate...