Leslie Fernandes v Handyman Services, Inc., et al.

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Coleman and Fitzpatrick
Argued at Alexandria, Virginia
LESLIE FERNANDES
v. 	Record No. 2182-94-4 	OPINION BY
JUDGE SAM W. COLEMAN III
HANDYMAN SERVICES, INC. 	AUGUST 22, 1995
AND
GENERAL ACCIDENT INSURANCE COMPANY OF AMERICA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Richard E. Cassell for appellant.
Susan L. Herilla (John R. Turbitt; Slenker, Brandt,
Jennings & Johnston, on brief), for appellees.
Leslie Fernandes, claimant, appeals a decision of the
Workers' Compensation Commission which held that his claim for
disability benefits based upon a change in condition was time
barred by Code § 65.1-99 (now Code § 65.2-708). 	The claimant
contends that the commission should have held that the employer
waived its right to plead the statute of limitations or is barred
from asserting the defense because of the doctrines of estoppel
or imposition. 	We hold that because the employer had agreed in
writing, before the statute of limitations ran, to pay for the
claimant's surgery and the related temporary total disability
benefits, but then delayed approval of the surgery until the
statutory period for claiming the related disability benefits had
expired, the employer is estopped from relying upon the statute
of limitations.
The claimant suffered a compensable injury to his elbow in

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1987. 	In 1988, he suffered a second compensable injury to the
same elbow. 	Dr. Charles Ubelhart treated both injuries. 	The
claimant last received disability benefits for those injuries
pursuant to an award by the commission through February 4, 1990.
Thus, February 4, 1990, was the date from which the two year
statute of limitations under Code § 65.2-708 ran for filing a
change in condition claim in the event that the claimant suffered
a subsequent period of disability.
In early February 1990, Dr. Ubelhart advised the claimant
that he needed surgery to decompress the ulnar nerve in his arm.
However, Dr. Ubelhart later informed the claimant that he would
not perform the surgery because the employer's insurance carrier
had "cancelled" it by refusing to pay for the procedure. 	The
claimant then filed a change in condition application in late
February 1990, requesting that the commission approve the surgery
and the related period of disability. 	The employer and carrier,
by a letter to claimant's counsel dated March 29, 1990, agreed to
pay both the surgical and associated disability benefits.1 A
1 The letter to the claimant's counsel stated:
Please be advised that the employer and carrier
have agreed to pay for the necessary causally
related surgery proposed by Dr. Charles Ubelhart
referable to Mr. Fernandes' work injury of
March 16, 1988, while employed by Handyman
Services, Inc. 	Once the surgery has been
scheduled and your client is off from work due to
same, please let me know and Annalys Wilson of
Crawford & Company will send you the appropriate
Supplemental Memorandum of Agreement form to be
signed by your client.

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copy of that letter, together with another letter from defense
counsel which stated, "the employer and carrier have agreed to
the surgery proposed by Dr. Ubelhart," were sent to the
commission. 	The commission took no action on claimant's
February 1990, application.
In May 1990, Dr. Ubelhart determined that surgery was not
immediately necessary, but would be required at a later date. 	In
November 1991, Dr. Ubelhart determined that the claimant should
have the surgery. 	However, the insurance carrier advised the
claimant and Dr. Ubelhart that it would not pay for the
claimant's surgery until it deposed the claimant and until he had
an independent medical examination to determine the necessity for
the surgery. 	The claimant filed an application with the
commission on February 19, 1992, seeking approval to have the
surgery. 	By order dated June 29, 1992, the commission dismissed
the claimant's petition, stating that "the parties have amicably
resolved the matter in controversy."
The claimant had surgery in June 1993. 	However, because the
employer would not pay compensation benefits for the period of
disability occasioned by the surgery, the claimant filed an
application July 1, 1993. 	On an information form provided by the
commission, signed and dated July 21, 1993, the employer and
carrier stated that the claim for disability benefits was
compensable and the only unresolved issue was the period of
claimant's disability.
Nevertheless, at the hearing, the employer defended the

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change in condition application on the ground that the claim for
disability benefits was barred by Code § 65.1-99 (now
Code § 65.2-708). 	Following the hearing, the commission ruled
that the claim was time barred as of February 5, 1992.
When the employee was injured, Code § 65.1-88 (now
Code § 65.2-603) required an employer to provide for reasonable
and necessary medical attention for "[a]s long as necessary after
an accident." 	However, when an employee has been awarded
compensation benefits and the award has been terminated upon the
employee's return to work, Code § 65.1-99 (now Code § 65.2-708)
limits the time in which the commission may review an award under
a change in condition application. 	Code § 65.1-99, which was
applicable when the employee filed a change in condition
application, provided:
Upon its own motion or upon the application
of any party in interest, on the ground of a
change in condition, the Industrial
Commission may review any award and on such
review may make an award ending, diminishing
or increasing the compensation previously
awarded, subject to the maximum or minimum
provided in this Act, and shall immediately
send to the parties a copy of the award.
. . . No such review shall be made after
twenty-four months from the last day for
which compensation was paid, pursuant to an
award under this Act, except: (i) thirty-six
months from the last day for which
compensation was paid shall be allowed for
the filing of claims payable under § 65.1-56
or (ii) twenty-four months from the day that
the claimant undergoes any surgical procedure
compensable under § 65.1-88 to repair or
replace a prosthesis.
The statute of limitations contained in Code § 65.1-99 is not a

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jurisdictional requirement, Binswanger Glass Co. v. Wallace, 214
Va. 70, 74, 197 S.E.2d 191, 194 (1973), and a party can be
equitably estopped from raising the statute as a defense. 	Cibula
v. Allied Fibers & Plastics, 14 Va. App. 319, 324-26, 416 S.E.2d
708, 711-12 (1992), aff'd, 245 Va. 337, 428 S.E.2d 905 (1993).
"In the absence of fraud, [the] elements necessary to
establish an equitable estoppel are a representation, reliance, a
change of position, and detriment." 	Rucker v. Thrift Transfer,
Inc., 1 Va. App. 417, 420, 339 S.E.2d 561, 562 (1986). 	"Where a
party seeks to invoke the doctrine of estoppel he has the burden
of proving it by clear, precise and unequivocal evidence." 	Rose
v. Red's Hitch and Trailer Services, 11 Va. App. 55, 59-60, 396
S.E.2d 392, 395 (1990).
Initially, the carrier and employer agreed to pay for the
claimant's surgery and the related period of disability benefits.
One year and eight months later, when the doctor recommended
that the claimant have the surgery, the insurance carrier
represented that it would not pay for the surgery until the
claimant submitted to depositions and an independent medical
examination. 	At that time, neither the employer nor the carrier
informed the claimant that were the need for surgery verified,
it, nevertheless, would not pay the related disability benefits
as had been previously agreed.
This claimant cannot be charged with the knowledge that,
beyond verifying the need for surgery, the carrier intended to
abrogate its previous agreement to pay the benefits. 	See Cibula,

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14 Va. App. at 325-26, 416 S.E.2d at 711-12. 	By taking the
position that it would require verification of the need for
surgery after having previously agreed to pay for it, the carrier
delayed the surgery until the statute of limitations ran for
filing a change in condition application. 	The carrier did not
inform the claimant that even if the need for surgery was
verified, it was revoking or nullifying its agreement to pay for
the related disability benefits. 	In fact, when the claimant
filed for benefits after the surgery, the employer filed a form
with the commission which represented that the only matter in
dispute was the period of disability, not the propriety of the
commission's review of the change in condition application. 	The
refusal to pay for the previously agreed disability benefits
based on the statute of limitations bar was not raised until the
hearing. 	Because the carrier and the employer failed to rescind
or change the agreement to pay for the surgery and related
disability benefits, as set forth in the letter of
March 29, 1990, the claimant was entitled to rely on that
agreement. 	See Nabisco Brands, Inc. v. Jones, 12 Va. App. 1028,
1030-32, 407 S.E.2d 919, 920-21 (1991) (showing claimant was
induced by and relied on her employer's actions). 	The carrier
did not abrogate its earlier representation to pay for the
disability benefits and the claimant had no knowledge that the
carrier wanted to do anything other than verify the need for
surgery. 	See Cibula, 14 Va. App. at 325-26, 416 S.E.2d at

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711-12.
We, therefore, reverse the commission's decision that
Code § 65.1-99 (now Code § 65.2-708) barred its review of
claimant's change in condition application. 	We remand this case
to the commission to consider the application and to enter an
appropriate award, provided the claimant proves a related period
of disability.
Reversed and remanded.