COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

KATHY A. McCLANNAN SEXTON 

v. Record No. 1989-94-1 MEMORANDUM OPINION*

 PER CURIAM 

SENTARA NORFOLK GENERAL HOSPITAL MAY 2, 1995 

AND 

VIRGINIA INSURANCE RECIPROCAL 

 FROM THE VIRGINIA WORKERS' 

COMPENSATION COMMISSION 

 (Karen M. Rye, on brief), for appellant. 

 (George J. Dancigers; Colleen T. Dickerson; Heilig, 

McKenry, Fraim & Lollar, on brief), for appellees. 

 Kathy A. McClannan Sexton contends that the Workers' 

Compensation Commission erred in finding that (1) the Employee 

Occurrence Report filed by Sentara Norfolk General Hospital 

("employer") with the commission did not constitute the filing of 

a timely claim by Sexton; (2) employer was not precluded by the 

doctrine of imposition from relying upon the statute of 

limitations; and (3) employer was not equitably estopped from 

relying upon the statute of limitations. Upon reviewing the 

record and the briefs of the parties, we conclude that this 

appeal is without merit. Accordingly, we summarily affirm the 

commission's decision. Rule 5A:27. 

 On appeal, we construe the evidence in the light most 

favorable to the party prevailing below. R.G. Moore Bldg. Corp. 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 

Unless we can say as a matter of law that Sexton's evidence 

proved that she filed a timely claim with the commission or that 

imposition or equitable estoppel precluded employer from relying 

upon the statute of limitations, the commission's findings are 

binding and conclusive upon us. Tomko v. Michael's Plastering 

Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970). 

 On December 13, 1989, Sexton sustained a compensable left 

arm injury while working for employer as a maintenance mechanic. 

 She reported the injury to her supervisor and completed an 

Employee Occurrence Report ("occurrence report"). On January 18, 

1990, employer filed a First Report of Accident with the 

commission and attached to it the occurrence report. Employer 

voluntarily paid compensation benefits to Sexton from December 

18, 1989 through March 19, 1990 and from September 11, 1990 

through December 13, 1991. 

 On January 30, 1990, the commission mailed a Notification 

Letter ("the blue letter") and a Workers' Compensation Guide to 

Sexton at her address of record. Sexton denied that she received 

these documents. These documents were not returned to the 

commission. Sexton admitted that she received compensation 

payments mailed to her address. 

 On March 22, 1990, the insurer mailed a memorandum of 

agreement and agreed statement of fact to Sexton. These 

documents were not returned to the insurer or employer. Sexton 
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denied that she received these documents. 

 On March 11, 1991, employer wrote to Sexton advising her 

that her employment was terminated due to her long absence. The 

letter specified that "this action does not affect your benefits 

for your current claim under Workmen's Compensation." Sexton 

admitted that she received this letter. She testified that the 

quoted-language indicated to her that her workers' compensation 

claim would be paid. 

 Sexton further admitted that she received an October 25, 

1991 letter from the insurer directing her to an independent 

medical examination. Sexton admitted that she received a 

memorandum of agreement, agreed statement of fact, and 

supplemental memorandum of agreement with this letter. The 

letter instructed her to sign the documents and return them to 

the insurer. Sexton took these documents to two attorneys. The 

first attorney told her she did not have a case. The second 

attorney told her to sign and return the documents. Sexton did 

not sign or return the documents. 

 By letter dated December 16, 1991, the insurer advised 

Sexton that because she had failed to sign and return the 

memorandum of agreement within two years of the date of her 

accident, the employer would no longer voluntarily accept 

responsibility for any matters relating to her accident. After 

Sexton received this letter, she signed the agreements and filed 

them with the commission on December 20, 1991. On January 28, 
 4 

1992, Sexton's counsel filed a claim on her behalf. 

 I. Employee Occurrence Report 

 "Code § 65.1-87 [now Code § 65.2-601] provides that the 

right to compensation under the Workers' Compensation Act is 

forever barred 'unless a claim be filed with the . . . Commission 

within two years after the injury by accident.'" Keenan v. 

Westinghouse Elevator Co., 10 Va. App. 232, 233, 391 S.E.2d 342, 

343 (1990). It is undisputed that the claim filed by Sexton's 

attorney on January 28, 1992 was not timely. Instead, Sexton 

argued that the employer's January 18, 1990 filing of the 

occurrence report constituted the timely filing of a claim on her 

behalf. This argument is without merit. 

 "[T]he employee did not satisfy the requirement that [a] 

claim be filed with the commission." Cheski v. Arlington County 

Pub. Schs., 16 Va. App. 936, 938, 434 S.E.2d 353, 355 (1993). 

The occurrence report that the employer attached to its first 

report of accident did not apprise the commission that a claim 

was being made on behalf of the employee. Thus, the commission 

did not err in finding that employer's filing of the occurrence 

report did not constitute the filing of a timely claim by Sexton. 

 II. Imposition

 "'Imposition' . . . empowers the commission in appropriate 

cases to render decisions based on justice shown by the total 

circumstances even though no fraud, mistake or concealment has 
 5 

been shown." Avon Products, Inc. v. Ross, 14 Va. App. 1, 7, 415 

S.E.2d 225, 228 (1992). The commission made the following 

findings: 

 It is uncontroverted that the employer filed 

the First Report of Accident with the 

Commission on January 18, 1990 and that on 

January 30, 1990 the "Blue Letter" and guide 

were mailed to [Sexton]. While Sexton 

contends that she never received these 

instructions, we find there is sufficient 

evidence in the record to support the 

Deputy's finding to the contrary. 

Specifically, over the months, Sexton at that 

address received her compensation benefits 

and therefore we must conclude that her 

allegation of selective receipt of mail sent 

to the same address is unconvincing. 

* * * * * * * 

 Sexton neglected to file a claim within two 

years of the date of accident, despite being 

informed of the filing requirements by the 

Commission as well as by her attorney. 

Furthermore, the employer mailed and the 

claimant received the requisite forms which 

if she had completed and returned them, would 

have resulted in an award being entered on 

her behalf. 

 In its role as fact finder, the commission was entitled to 

find that Sexton received the notification letter and guide from 

the commission and the letters from the insurer enclosing the 

agreements and to reject her testimony to the contrary. The 

determination of a witness' credibility is within the fact 

finder's exclusive purview. Goodyear Tire & Rubber Co. v. 

Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987). 

Moreover, the evidence supports the commission's finding that 

Sexton's failure to file the requisite forms, rather than any 
 6 

action of employer, caused the statute of limitations to lapse. 

Thus, credible evidence supports the commission's ruling the 

doctrine of imposition did not preclude employer from relying 

upon the statute of limitations. 

 III. Equitable Estoppel

 To prove estoppel, Sexton was required to show by clear, 

precise and unequivocal evidence that she relied upon an act or 

statement of employer or its agent in refraining from filing a 

claim within the statutory period. Rose v. Red's Hitch & Trailer 

Servs., Inc., 11 Va. App. 55, 59-60, 396 S.E.2d 392, 394-95 

(1990). The rule is well-settled that employer is not estopped 

from invoking the limitation period provided by Code § 65.2-601 

merely because it made voluntary payments to Sexton. See Bowden 

v. Newport News Shipbuilding & Drydock Co., 11 Va. App. 683, 

686-87, 401 S.E.2d 884, 886 (1991). 

 The commission found no evidence that employer made any 

representation which induced Sexton to refrain from filing a 

timely claim. The record demonstrates that employer sent the 

agreements to Sexton for her signature. Sexton received the 

documents, failed to sign them, and took no action to file them. 

 In addition, the evidence showed that, even after being advised 

by legal counsel that she should sign and return the agreements, 

Sexton failed to do so. Accordingly, the evidence supports the 

commission's ruling that employer was not equitably estopped from 

relying upon the statute of limitations. 
 7 

 For the reasons stated, we affirm the commission's decision. 

 Affirmed.