COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Bumgardner and 

 Senior Judge Hodges 

LAWRENCE ALPHONSO PENN, JR. 

 MEMORANDUM OPINION*

v. Record No. 1262-00-3 PER CURIAM 

 OCTOBER 3, 2000 

J & J SOUTHEAST AND 

 GEORGIA PACIFIC CORPORATION 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Robert A. Williams; Williams, Luck & 

Williams, on brief), for appellant. 

 (Robert M. Himmel; Patsy L. Mundy; Sands, 

Anderson, Marks & Miller, on brief), for 

appellees. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication. 

 Lawrence Alphonso Penn, Jr. (claimant) contends that the 

Workers' Compensation Commission erred in finding that his 

application alleging a change in condition was barred by the 

applicable statute of limitations contained in Code § 65.2-708. 

Claimant asserts that (1) the action of the commission in 

printing and distributing the pamphlet, "A Guide to Workers' 

Compensation for Employees" was tantamount to equitable 

estoppel; and (2) the commission erred in not applying the 

principle of imposition. 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. See Rule 5A:27. 

 The undisputed facts proved that on September 16, 1993, 

claimant sustained an injury by accident to his lower back. 

Employer accepted the claim as compensable and the parties 

submitted memoranda of agreement, for which the commission 

entered various awards for periods of temporary total and 

partial disability. Claimant was last paid compensation 

pursuant to an award on September 18, 1994. 

 On June 5, 1995, claimant filed a Claim for Benefits 

seeking payment of lifetime medical benefits and "payment of 

wages during related reoccurrence." By letter dated June 7, 

1995, an Assistant Claims Examiner rejected the claim and 

informed claimant that he had already been awarded lifetime 

medical benefits and that the commission could not consider a 

claim for anticipatory wage loss which may or may not occur in 

the future. The Assistant Claims Examiner also advised claimant 

as follows: 

You have two years from the date you were 

last paid compensation pursuant to an award 

of the Commission to make a claim for 

additional benefits. According to the 

Commission's file, you were last paid 

through September 18, 1994. Therefore, you 

have until September 18, 1996 to make claim 

for additional lost time. 

 No communication between claimant and the commission 

occurred between June 1995 and June 1999. On June 28, 1999, 

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claimant filed another Claim for Benefits asserting a change in 

condition and seeking temporary total disability benefits for 

the period from June 27, 1997 through July 7, 1997. 

 Claimant testified that after he returned to work in 1994, 

he continued to have problems with his back and missed 

intermittent days from work due to those problems. However, he 

did not file a change-in-condition application before June 28, 

1999 because of his interpretation of the following portion of 

the Workers' Compensation Guide sent to him by the commission 

shortly after his September 1993 accident: 

If after returning to work, you are again 

disabled, you must file a claim within two 

years of the date for which you were last 

paid compensation under an award. (This is 

called a "change in condition.") Payment 

only goes back 90 days from the date of 

filing with the Commission. 

 Claimant, who has attended several years of college, 

testified that he interpreted the term "disabled" to mean unable 

to work for "[a] long term period," rather than on intermittent 

days. He believed that his occasional absences from work did 

not constitute changes in condition, and, therefore, he did not 

file a claim within two years of the last day for which he was 

paid compensation. He admitted that he did not confirm his 

interpretation of the pamphlet by either contacting the 

commission or consulting with an attorney. 

 The deputy commissioner denied the claim for failure to 

file it within two years from the date that compensation was 

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last paid as required by Code § 65.2-708. On review before the 

full commission, claimant argued for reversal of the deputy 

commissioner's decision on the ground that his June 28, 1999 

claim alleging a change in condition should be allowed on the 

ground that the workers' compensation pamphlet contained 

misleading information upon which he relied, causing him not to 

file a timely claim. Claimant also argued that Code § 65.2-708 

created some type of fiduciary or special relationship between 

the commission and claimant because it allowed the commission to 

file a change-in-condition application on its own motion to 

protect claimant's rights where he had sustained a change in 

condition. The full commission rejected these arguments and 

affirmed the deputy commissioner's decision. 

 On appeal to this Court, claimant argues that the printing 

and distributing of the pamphlet by the commission was 

tantamount to "equitable estoppel" and that the commission 

should have applied the doctrine of "imposition" to save his 

untimely claim. Claimant did not raise either of these 

arguments before the deputy commissioner or in his written 

statement filed on review before the full commission. Any 

theory of recovery or argument not raised before the commission 

will not be considered by this Court for the first time on 

appeal. See Rule 5A:18; see also Kendrick v. Nationwide Homes, 

Inc., 4 Va. App. 189, 192, 355 S.E.2d 347, 349 (1987). 

Accordingly, we will not consider these arguments for the first 

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time on appeal. Moreover, the record does not reflect any 

reason to invoke the good cause or ends of justice exceptions to 

Rule 5A:18. 

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

Affirmed.

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