COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Annunziata and Senior Judge Cole 

Argued at Richmond, Virginia 

GERALD ALBERT ADKINS 

v. Record No. 1803-96-2 MEMORANDUM OPINION* BY 

 JUDGE MARVIN F. COLE 

NABISCO BISCUIT JULY 29, 1997 

 FROM THE VIRGINIA 

WORKERS' COMPENSATION COMMISSION 

 Brian J. Cusce for appellant. 

 P. Dawn Bishop (Sands, Anderson, Marks & 

Miller, on brief), for appellee. 

 Gerald A. Adkins appeals from a decision of the Workers' 

Compensation Commission (commission) denying his application for 

compensation benefits on the ground that Adkins did not file the 

application before the applicable statute of limitations expired. 

 Adkins contends that the commission erred in finding that (1) 

Code § 65.2-602 did not toll the applicable statute of 

limitations; (2) the doctrine of equitable estoppel did not apply 

to prevent Nabisco Biscuit (employer) from asserting the statute 

of limitations; (3) employer's conduct did not constitute an 

imposition on the commission and Adkins; and (4) a de facto award 

did not exist. Finding no error, we affirm the commission's 

decision. 

 On appeal, we view the evidence in the light most favorable 

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

 

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

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

 So viewed, the evidence established that on February 2, 

1995, Adkins filed a claim with the commission alleging an injury 

by accident arising out of and in the course of his employment on 

December 10, 1992. Adkins sought an award of temporary total 

disability benefits commencing January 14, 1993 and continuing. 

At the October 2, 1995 hearing, employer stipulated to the 

compensability of Adkins' accident, but defended against his 

application on the ground that it was barred by the two-year 

statute of limitations contained in Code § 65.2-601. 

 As of December 1992, Adkins had worked for employer for 

nineteen years. On December 10, 1992, Adkins, a machine captain, 

slipped on steps and sustained a back injury. He immediately 

reported the accident to his supervisor, who sent him to the 

company nurse, Cecilia Craft. Craft completed an accident 

report, and Adkins returned to work. Adkins worked until January 

14, 1993, when he was no longer able to work due to the injury. 

Adkins again saw Craft and a company doctor. Craft referred 

Adkins to Dr. Anthony G. Velo, an orthopedic surgeon. On March 

1, 1993, Dr. Velo performed surgery on Adkins' back to remove a 

ruptured disc. Adkins returned to work on December 20, 1993 and 

worked until February 7, 1994, when he was again unable to work 

due to the injury. 

 Adkins testified that Jeanne Dyer, a nurse employed by 

employer's insurer, assisted him with his physicians and told him 
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that "anything I needed, she would take care of it. . . . She 

always went with me to the doctor and made my doctors 

appointments and called work." Adkins saw Drs. E. Claiborne Irby 

and George Gruner at Dyer's request. 

 Employer filed its first report of accident on February 2, 

1993. The commission sent a "blue letter," dated February 9, 

1993, to Adkins addressed to him at Route 2, Box 125, Providence 

Forge, Virginia. Adkins denied receiving this "blue letter." 

The evidence proved that in November 1992, the postal service 

changed his mailing address from Route 2, Box 125, Providence 

Forge, Virginia to 4440 North Courthouse Road, Providence Forge, 

Virginia. Adkins admitted that he did not physically move his 

residence and testified that he continued to receive mail 

addressed to him at both the former and current mailing address. 

 Apparently, either Adkins or employer later filed a minor 

injury claim relative to an injury incurred by Adkins on January 

24, 1994. As a result of this filing, the commission mailed 

another Workers' Compensation Guide to Adkins on February 23, 

1994.1 Adkins admitted that he received the guide, but he did 

not read it. Rather, he placed it in his dresser drawer. He 

stated that he did not think he had to do anything in regard to 

his claim because "I'd never done anything before on my cases. 

 1The commission cited to this January 24, 1994 minor claim 

in its opinion. There is no evidence of this claim in the 

record. However, the guide, which is in the record, contains an 

 address label reflecting a date of "1/24/94." 
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It was always taken care of."2

 

 With respect to the December 10, 1992 injury by accident, 

employer paid Adkins weekly benefits for various periods from 

January 21, 1993 through January 15, 1995. Employer also paid 

Adkins cost of living increases. Adkins stated that he did not 

know he needed to file a claim with the commission nor did he 

know of any time limits on filing a claim. Adkins knew that Jon 

Hall was the insurance adjuster for his claim, but he had very 

little contact with Hall. 

 Dyer testified that her job was to facilitate a resolution 

of the medical aspects of Adkins' case, essentially by acting as 

a liaison between the insurance company, Adkins' physicians, and 

Adkins. Dyer met with Adkins on numerous occasions. She told 

Adkins that her only job was to help him with the medical aspects 

of his case. Dyer admitted asking Adkins at their first meeting 

if he was receiving checks. Dyer provided the insurance company 

with periodic reports concerning Adkins' progress from a medical 

standpoint. 

 2Adkins had received workers' compensation benefits before 

the December 10, 1992 accident for other work-related injuries. 

The commission's records reflected that two previous files were 

generated for Adkins for work injuries sustained in 1978 and 

1984. "Blue letters" were sent to him in both instances. The 

blue letter and the workers' compensation guide spell out the 

time limit for filing a claim. With respect to these previous 

injuries, Adkins signed memoranda of agreement on October 23, 

1978 and December 26, 1984. Adkins stated that even though he 

signed the agreements, he did not understand why he signed them 

nor did he know that employer filed them with the commission. 
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 The deputy commissioner dismissed Adkins' application, 

finding "that there had been no prejudice, no misrepresentation, 

and no evoked detrimental reliance, and because no prejudice 

exists, the two-year statute of limitations ran on December 10, 

1994. This matter was filed on February 2, 1995, beyond the 

two-year statute of limitations." 

 The full commission affirmed the deputy's decision, finding 

that the statute of limitations was not tolled pursuant to Code 

§ 65.2-602 because Adkins failed to prove prejudice. The 

commission found that Adkins had notice of the filing requirement 

because he received a guide and a blue letter within fifteen 

months of his injury, noting that the fact that the guide 

pertained to a subsequent minor claim was of no moment because 

Adkins' rights and responsibilities were the same for either 

claim. Adkins admitted receiving the guide within fifteen months 

of his injury, leaving "some eight months" within which to file a 

timely claim. The commission also found that Adkins had 

sustained two previous workers' compensation injuries for which 

the commission had sent blue letters. 

 The commission held that Adkins did not establish equitable 

estoppel. The commission found that Dyer neither represented to 

Adkins that his claim had been filed nor indicated that he did 

not need to protect his claim. The commission also found that 

employer's voluntary payment of compensation benefits and cost of 

living adjustments did not establish an estoppel. Employer's 
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actions were no more than those expected from an employer 

complying with the Act. The commission found that employer's 

voluntary payment did not create a de facto award. Finally, the 

commission found that the doctrine of imposition did not apply 

because Adkins did not rely upon any actions of the 

employer/carrier or the commission, and employer's actions taken 

as a whole were consistent with an endeavor to comply with the 

Act. 

 I. 

 In pertinent part, Code § 65.2-602 states as follows: 

 In any case where an employer has received 

notice of an accident resulting in 

compensable injury to an employee as required 

by § 65.2-600, and whether or not an award 

has been entered, such employer nevertheless 

has paid compensation or wages to such 

employee during incapacity for work as 

defined in § 65.2-500 or § 65.2-502, 

resulting from such injury or the employer 

has failed to file the report of said 

accident with the Virginia Workers' 

Compensation Commission as required by 

§ 65.2-900, 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 or, as the case may be, until 

the employer files the first report of 

accident required by § 65.2-900. 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 § 65.2-900 or he has 

received after the accident a workers' 

compensation guide described in § 65.2-201 or 

a notice in substantially the . . . form 

[stated in this statute]. 
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 Dissecting Code § 65.2-602 down to its plain meaning, we 

find that in order to toll the statute of limitations, an 

employee must prove the existence of certain conditions. First, 

an employee must show that the employer received notice of the 

accident as required by Code § 65.2-600, and that the employer 

either has paid wages or compensation to the employee during 

incapacity from work, with or without an award or has failed to 

file an Employer's First Report of Accident as required by Code 

§ 65.2-900. Second, an employee must prove that either the 

employer's payment of wages or compensation or its failure to 

file the first report of accident has operated to prejudice the 

employee's rights with respect to filing a claim prior to the 

expiration of the statute of limitations. If an employee proves 

the existence of these conditions, the statute of limitations 

shall be tolled for the duration of the employer's payment of 

compensation or wages during an employee's incapacity from work 

or until the employer files an Employer's First Report of 

Accident. 

 As noted in the provisions, The "rights of an employee . . . 

to file a claim prior to the expiration of the statute of 

limitations shall be deemed not prejudiced if his employer has 

filed . . . the first report of accident as required by 

§ 65.2-900 or he has received after the accident a workers' 

compensation guide described in § 65.2-201 or a notice in 

substantially the . . . form [stated in this statute]." Thus, if 
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either of these two circumstances occur, i.e., the employer files 

the first report of accident as required by Code § 65.2-900 or

the employee receives a workers' compensation guide after the 

accident, the statute provides for a per se absence of prejudice 

with respect to the employee's right to file a timely claim. 

Without a showing of prejudice, the tolling provisions of Code 

§ 65.2-602 are not triggered. 

 Because Adkins received a workers' compensation guide after 

his accident and before the statute of limitations expired, the 

clear and unambiguous language of Code § 65.2-602 dictates that 

his rights with respect to filing a timely claim were not 

prejudiced as a matter of law. When he received the guide, he 

had at least eight months within which to file a timely claim. 

Yet, he failed to read the documents or act upon them. Absent 

proof of prejudice, the elements necessary for tolling the 

statute of limitations pursuant to Code § 65.2-602 were not met 

and Adkins' rights expired on December 10, 1994. Therefore, the 

commission did not err in ruling that the statute of limitations 

was not tolled pursuant to Code § 65.2-602, and that Adkins 

failed to file a timely claim.3

 II. 

 To prove estoppel, a claimant must show by clear, precise 

 

 3As it is unnecessary to do so under the circumstances of 

this case, we do not address how the statute would be applied in 

a situation where an employee received the guide very close in 

time to the expiration of the statute of limitations. 
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and unequivocal evidence that he relied to his detriment upon an 

act or statement of employer or its agent to refrain 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). However, a claimant need not prove a false 

representation, concealment of a material fact, or fraudulent 

intent, in order to invoke the doctrine of equitable estoppel. 

Cibula v. Allied Fibers & Plastics, 14 Va. App. 319, 324-25, 416 

S.E.2d 708, 711 (1992), aff'd, 245 Va. 337, 428 S.E.2d 905 

(1993). In addition, it is well settled that employer is not 

estopped as a matter of law from relying on the limitation period 

provided by Code § 65.2-601 merely because it made voluntary 

payments to a claimant. See Bowden v. Newport News Shipbuilding 

& Dry Dock Co., 11 Va. App. 683, 686-87, 401 S.E.2d 884, 886 

(1991). 

 The commission found no evidence that employer or its agents 

made any representations which induced Adkins to refrain from 

filing a timely claim. The record supports this finding. 

Neither Dyer nor employer ever represented to Adkins that his 

claim had been filed or that he did not need to do anything to 

protect his rights. In addition, Adkins' evidence did not 

establish an affirmative, deliberate effort by employer or its 

agent to prejudice his right to file a claim within the 

limitations period. Such an effort must be shown in order to 

invoke the doctrine of equitable estoppel. Odom v. Red Lobster 
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#235, 20 Va. App. 228, 233-34, 456 S.E.2d 140, 143 (1995). 

 Based upon this record, the commission did not err in ruling 

that employer was not equitably estopped from relying upon the 

statute of limitations. 

 III. 

 "'[I]mposition' . . . 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 

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

S.E.2d 225, 228 (1992). The commission correctly held that the 

doctrine of imposition did not apply in this case because the 

acts of the carrier and employer were consistent with an endeavor 

to comply with the Act. Cheski v. Arlington County Pub. Schs., 

16 Va. App. 936, 940, 434 S.E.2d 353, 356 (1993). No evidence 

established that Dyer told Adkins she would take care of anything 

other than his medical needs. In addition, no evidence showed 

improper conduct by the insurance adjuster. The facts merely 

showed that Adkins was paid compensation and cost of living 

increases and provided with a rehabilitation nurse to monitor his 

medical status. The employer/carrier's actions in Odom, relied 

upon by Adkins, went far beyond those of the employer in this 

case. 

 IV. 

 The holding of National Linen Serv. v. McGuinn, 5 Va. App. 

265, 362 S.E.2d 187 (1987), which applied to the issue of whether 
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a claimant bore the burden of proving marketing efforts, is not 

applicable to this case which deals with the jurisdictional issue 

of whether a timely claim has been filed. Accordingly, the 

commission did not err in finding that employer's voluntary 

payments did not create a de facto award. 

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

 Affirmed.