Summary
holding that the employer was not estopped from asserting a statute of limitations defense where, although the claimant did not realize that agreements for the payment of compensation to her were not being filed with the commission, there was no evidence that the employer had engaged in fraud or concealment designed to deprive the claimant of benefits to which she was entitled
Summary of this case from Henrico Public Utilities v. TaylorOpinion
46159 No. 1329-88-2
Decided November 21, 1989
(1) Workers' Compensation — Benefits — Statute of Limitations. — Estoppel of an employer's right to assert the time limitation in Code Sec. 65.1-99 requires evidence of fraud or concealment; this requirement applies to applications for a change in condition.
(2) Workers' Compensation — Benefits — Statute of Limitations. — Absent fraud or misrepresentation, an employer cannot be estopped from asserting the time limitation contained in Code Sec. 65.1-99.
A. Thomas Lane, Jr. (Ashcraft Gerel, on brief), for appellant.
Donald Stratton Elmore (Elmore, Elmore Smith, on brief), for appellee.
SUMMARY
Employer appealed the decision of the Industrial Commission which held that the employer was not estopped to assert the time limitation contained in Code Sec. 65.1-99.
The Court of Appeals affirmed, holding that there was no evidence of fraud or misrepresentation by the employer which prevented the employee from making a timely application for a change in condition; thus, the employer was not estopped from relying on the time limitation contained in Code Sec. 65.1-99.
Affirmed.
OPINION
In this appeal from the Industrial Commission we affirm the Commission's conclusion that the employer is not estopped from asserting the time limitation contained in Code Sec. 65.1-99.
The employee did not make an application for a change of condition within twenty-four months following the last day for which compensation had been paid, even though she had periods of incapacity during that period of time. She explains that following the receipt of her last compensation benefits her employer, the Department of Welfare, changed the procedures for processing employees' leave, including periods of incapacity for which an employee might be eligible for workers' compensation benefits. The procedures followed by the employer both before and after the change and the relevant periods of disability are described in the Commission's opinion.
The employee continued to receive her full salary, and, presumably for this reason, did not realize that agreements for the payment of compensation were not being filed with the Commission and that the Commission was not entering awards based on these agreements, as had been the practice under the previous procedure. Finally, she noticed that an income tax form reflected only wages and not workers' compensation. Therefore, on April 21, 1987, she completed a form reflecting the various dates of disability since she had last received compensation and took this to the insurance carrier. In June, 1987, the carrier advised her that the time limitation for filing her application for a change of condition had expired on May 15, 1987.
(1) We concur with the Commission's conclusion that estoppel of an employer's right to assert the time limitation in Code Sec. 65. 199 requires "evidence of fraud or concealment." Clark v. United Air Lines, 223 Va. 197, 200, 288 S.E.2d 441, 442 (1982). This requirement applies to Code Sec. 65.1-87, which limits the time for filing a claim. Id. It is equally applicable to Code Sec. 65.1-99, which imposes a like limitation on the time in which an application for a change of condition may be filed.
(2) The Commission found no evidence, nor was there any contention, that fraud or misrepresentation prevented her from making a timely application for a change of condition. Therefore, the employer is not estopped from relying on the time limitation in Code Sec. 65.1-99.
The employee also argues that the employer waived reliance on the limitation contained in Code Sec. 65.1-99. However, the Commission observed that, while the time limitation is not jurisdictional and may be waived, no contention that the employer had waived the provisions of Code Sec. 65.1-99 was made. Since this issue was not presented to the Commission and since there has been no showing of good cause or necessity to do so to enable us to obtain the ends of justice, we may not consider this issue as a basis for reversal. Rule 5A:18.
For these reasons, the Commission's decision is affirmed.
Affirmed.
Coleman, J., and Keenan, J., concurred.