Rose v. Red's Hitch & Trailer Services, Inc.

• Decision Date: 11 September 1990
• Docket Number: No. 1535-89-2,1535-89-2
• Citation: 396 S.E.2d 392,11 Va.App. 55
• Court: Virginia Court of Appeals
• Parties: Jesse C. ROSE v. RED'S HITCH & TRAILER SERVICES, INC. and United States Fidelity and Guaranty Company. Record

Page 392

396 S.E.2d 392

11 Va.App. 55

Jesse C. ROSE v. RED'S HITCH & TRAILER SERVICES, INC. and United States Fidelity and Guaranty Company.

Record No. 1535-89-2.

Court of Appeals of Virginia.

Sept. 11, 1990.

David L. Pillsbury, for appellant.

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

Present: COLEMAN, COLE and WILLIS, JJ.

WILLIS, Judge.

In this appeal from a judgment of the Industrial Commission denying him benefits, Jesse C. Rose contends that the commission erred (1) in holding that Code § 65.1-87.1 did not operate to prevent the dismissal of his claim under Code § 65.1-87, (2) in holding that he had not proved conduct on the part of his employer's agents which would estop the employer from interposing the defense of Code § 65.1-87, (3) in holding that the wages paid him after his injury should not be considered compensation under the provisions of Code § 65.1-55.1, and (4) in holding that the aggravation of his injury, which resulted in his ceasing work July 5, 1988, did not constitute a new injury by accident. We find no error and affirm the judgment of the Industrial Commission.

On October 10, 1985, while employed by Red's Hitch & Trailer Service, Inc. (the employer), Rose was thrown from a tractor and sustained back injuries. After missing several days from work, he returned to light duty, but was paid his regular wages. His complaints continued and he remained under a doctor's care. From May 7 through May 14, 1987 he was hospitalized by Dr. Velo, but then returned to light duty at his full regular wage. He ceased work July 5, 1988. He was again hospitalized from July 25 to August 19, 1988. Until he stopped work, he was paid his full regular wage.

United States Fidelity & Guaranty Company (USF & G), the employer's insurance carrier, treated the case as "medicals only," paying medical bills but no compensation, because Rose was still drawing his regular wages. By letter dated August 19, 1988, USF & G denied coverage and refused to pay for Rose's last hospitalization.

On June 18, 1987, Ann Townsend, an adjuster for USF & G who had taken over the case, discussed compensation benefits with Rose. Rose testified, "I asked her how long that I had before the time would expire and she told me that I had two years from the time I had had the last medical treatment." When asked what he thought her statement meant he said, "Well, I thought I had two years from the time I saw Dr. Velo and he told me to go back and try to work." He said that he knew nothing of the Industrial Commission. Ms. Townsend testified that she recalled the conversation, but could not recall specifically what was said. In June, 1988, Rose talked with Dave Jonske, who had taken over the case for USF & G. Rose testified, "I said, Ms. Townsend told me that I had two years from the time I saw the doctor last and he said, 'That's right.' "

Rose filed his original application for hearing on November 7, 1988, alleging a back injury from an accident occurring October 10, 1985 and claiming disability for "part of summer '87 and since July 5, 1988."

Code § 65.1-87 provides: "The right to compensation under this Act shall be forever barred, unless a claim be filed with the Industrial Commission within two years after the accident."

Rose's application was filed more than two years after the accident. Code § 65.1-87 imposes a "special" limitation which is a component of the right, not merely a bar to the remedy. Thus, on October 10, 1987, no claim having been filed, Rose's rights under the Act ceased to exist. See Barksdale v. H.O. Engen, Inc., 218 Va. 496, 237 S.E.2d 794 (1977).

Rose contends that the application of Code § 65.1-87 with respect to his claim was tolled by operation of Code § 65.1-87.1 which, at the time relevant to this case, provided:

In any case where an employer has received notice of an accident resulting in compensable injury to an employee as required by § 65.1-85, and whether or not an award has been entered, such employer nevertheless has paid compensation to such employee during incapacity for work as defined in § 65.1-54 or § 65.1-55, resulting from such injury, and such conduct of the employer has operated to prejudice the rights of such employee with respect to the filing of a claim prior to expiration of a statute of limitations otherwise applicable, such statute shall be tolled for the duration of such payment. For purposes of this section, such rights of an employee shall be deemed not prejudiced if his employer has filed the first report of accident as required by § 65.1-124 or he has received after the accident a workers' compensation guide described in § 65.1-22 or a notice in substantially the following form: .... (notice described).

The employer did not file the first report of accident required by Code § 65.1-124. Rose received neither a workers' compensation guide nor the notice described in § 65.1-87.1.

In determining the applicability of § 65.1-87.1, we must consider whether the employer paid Rose "compensation" for any period prior to October 10, 1987. We conclude that it did not. Rose was maintained at his employment and was paid his wages.

Rose argues that the wages which the employer paid him prior to October 10, 1987 should be considered compensation. He cites Code § 65.1-55.1 which provides in pertinent part: "All wages paid ... to an employee (i) who is physically unable to return to his pre-injury work due to a compensable injury ... shall, for the sole purposes of § 65.1-99, be considered compensation." Rose's argument fails by the very language of the statute he cites. Code § 65.1-55.1 applies only to proceedings under § 65.1-99, relating to changes in condition. It has no application to the jurisdictional time bar imposed by § 65.1-87 for the filing of an original application.

Effective July 1, 1989, Code § 65.1-87.1 was amended to extend its coverage to cases in which the...