COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton and Kelsey 

Argued at Richmond, Virginia 

RONALD L. MORISSETTE 

 MEMORANDUM OPINION* BY 

v. Record No. 1820-02-2 JUDGE D. ARTHUR KELSEY 

 FEBRUARY 19, 2003 

CUSTOM TELEPHONE SERVICE, INC. AND 

 VIRGINIA FARM BUREAU FIRE & CASUALTY 

 INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Gregory O. Harbison (Geoffrey R. McDonald & 

Associates, P.C., on brief), for appellant. 

 Cathie W. Howard (Pierce & Howard, P.C., on 

brief), for appellees. 

Ronald L. Morissette asserts that the Virginia Workers' 

Compensation Commission erroneously characterized his claim as a 

change-of-condition request seeking "additional compensation," and 

thus, subject to the 90-day limitation of Va. Work. Comp. Rule 

1.2(B). Even if the time bar applied, Morissette contends, his 

claim nonetheless should have been allowed under the doctrine of 

imposition. For the following reasons, we disagree with 

Morissette and affirm the commission. 

 

 * Pursuant to Code § 17.1-413 this opinion is not 

designated for publication. 
I. 

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

favorable to the prevailing party" before the commission. Tomes 

v. James City (County Of) Fire, 39 Va. App. 424, 429, 573 S.E.2d 

312, 315 (2002); Grayson County Sch. Bd. v. Cornett, 39 Va. App. 

279, 281, 572 S.E.2d 505, 506 (2002). 

CTS employed Morissette from December 4, 1997 to August 30, 

1999 as a "computer installer." Morissette suffered an injury to 

his back in October 1998, but was able to work until he 

experienced severe pain on the morning of December 2, 1998. From 

December 2, 1998 until January 8, 1999, he was unable to work. 

During this period, CTS paid Morissette an advance on his wages so 

that he would have income "until the workmen's compensation first 

check came in." An award was entered in January 1999 granting 

Morissette compensation for temporary total incapacitation 

beginning December 9, 1998. Morissette returned to work on light 

duty on April 15, 1999. Upon returning to work, Michael Barbeau, 

president of CTS, told him "things were tight" financially. 

Morissette told Barbeau "he would work with the company as long as 

things did not get out of hand," and he returned to work knowing 

that he would not then receive wages for his light duty work. 

On April 16, 1999, Morissette signed an Agreed Statement of 

Fact (ASF) and Supplemental Memorandum of Agreement (MOA) 

reflecting that he returned to work on April 15 at a lower than 

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pre-injury average weekly wage of $173.04. The commission 

approved the MOA and entered a Supplemental Award Order on April 

30, 1999, providing Morissette with temporary partial disability 

benefits in the amount of $464.52 commencing April 15, 1999. From 

April 15, 1999, through July 26, 1999, a period of over three 

months, Morissette received partial disability payments from the 

carrier, Virginia Farm Bureau Fire & Casualty Insurance Company. 

During this time, however, CTS paid him no wages. 

On July 20, 1999, Morissette signed another ASF and 

supplemental MOA that showed him working at a lower than 

pre-injury wage of $115.36 as of June 29, 1999. The commission 

entered a new Supplemental Award Order granting Morissette 

temporary partial disability benefits in the weekly amount of 

$502.98 commencing June 29, 1999. Morissette worked at this rate, 

still not receiving any wages from CTS, for another month. On 

September 1, 1999, Morissette started his own business and ceased 

working for CTS. 

On November 15, 1999, Barbeau sent a letter stating that CTS 

would pay Morissette certain reimbursable costs and commissions. 

Barbeau, however, added that the proffered amount 

does not include the wages (part time 

workman comp) in the amount of $2768.64 that 

CTS owes you or the wages of $3461.58 that 

you were to refund CTS with the workman comp 

payment. If you insist pursuing the wages 

for the part time work, you will have to sue 

CTS over the $2768.64 and we will have to 

counter sue you for the $3461.58 that is 

owed CTS. 

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 On January 18, 2001, nearly sixteen months after leaving CTS, 

Morissette filed a claim with the commission. Morissette's claim 

letter stated: 

Claimant seeks the payment of temporary 

total disability benefits from April 15, 

1999 through August 30, 1999. The 

Commission's file will reflect that he was 

placed on a Temporary Partial Award during 

this period that paid only $464.52. 

Claimant submits that he returned to work 

during this period. However, his employer 

never paid him any wages. Accordingly, he 

should have received full temporary total 

disability even though he had returned to 

work due to the employer's failure to make 

any payments. 

(Emphasis added). The commission characterized the claim as a 

change-of-condition request seeking additional benefits rather 

than as a mere enforcement action of an earlier award. Despite 

repeated references to the claim as such, Morissette did not 

object to the characterization of his claim as a 

change-of-condition request. 

CTS defended the claim by asserting that Rule 1.2(B) barred 

Morissette's request for additional compensation and, 

alternatively, by seeking a credit for amounts paid to Morissette, 

including wages paid from December 2, 1998 through January 1999. 

Under Rule 1.2(B), "[a]dditional compensation may not be awarded 

more than 90 days before the filing of the claim with the 

Commission." The deputy commissioner agreed with CTS and 

dismissed Morissette's claim. The deputy commissioner also 

awarded CTS a credit against future payments in the amount of 

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$3,887.70. The full commission affirmed the deputy commissioner's 

application of Rule 1.2(B) and declined to apply the doctrine of 

imposition to cure the time default. Imposition would not be 

appropriate, the commission held, because Morissette "agreed, or 

at least acquiesced, that he would not be paid his wages from 

April 15, 1999, until August 30, 1999, because of the employer's 

poor financial condition." 

 II. 

Rule 1.2(B) serves as a narrow exception to the prohibition 

against retroactive awards. See generally Bristol Door & Lumber 

Co. v. Hinkle, 157 Va. 474, 161 S.E. 902 (1932). The rule allows 

the commission to award additional compensation "retroactively for 

a limited period of time" prior to the filing of a 

change-of-condition request for additional compensation. Graham 

v. Peoples Life Ins. Co., 7 Va. App. 61, 68, 372 S.E.2d 161, 165 

(1988) (en banc) (interpreting predecessor Rule 13(B)). The 

commission is "powerless to award benefits beyond the period 

authorized by the rule." Id. 

 Morissette claims the commissioner erroneously characterized 

his claim as one for additional compensation (implicating Rule 

1.2(B)'s 90-day deadline), rather than one for enforcement of a 

prior award (implicating the commission's continuing authority 

under Code § 65.2-710). If the claim had been properly deemed a 

mere enforcement action, Morissette argues, the 90-day deadline 

would not apply. 

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Because Morissette did not make this argument to the 

commission, we will not consider it on appeal. See Buck v. 

Commonwealth, 247 Va. 449, 452-53, 443 S.E.2d 414, 416 (1994); 

West Alex. Prop. v. First Va. Mort., 221 Va. 134, 138, 267 S.E.2d 

149, 151 (1980); Shenk v. Shenk, 39 Va. App. 161, 169, 571 S.E.2d 

896, 901 (2002) (To preserve an issue for appeal, the "specific 

argument" made on appeal must have been made below.). 

Though Rule 5A:18 contains a "good cause" or "ends of 

justice" exception to procedural default, we decline to use it in 

this case. See generally M. Morgan Cherry & Assocs., Ltd. v. 

Cherry, 38 Va. App. 693, 701, 568 S.E.2d 391, 395 (2002) (en

banc). This exception "is narrow and is to be used sparingly" by 

appellate courts. Redman v. Commonwealth, 25 Va. App. 215, 

220-21, 487 S.E.2d 269, 272 (1997) (quoting Brown v. Commonwealth, 

8 Va. App. 126, 132, 380 S.E.2d 8, 10 (1989)). Morissette 

presents no basis for declaring the commission's application of 

Rule 1.2(B) to Morissette's claim to be a miscarriage of justice. 

Morissette also argues that, even if Rule 1.2(B) bars his 

claim, the doctrine of imposition should apply and relieve him of 

his procedural default. Under the imposition doctrine, the 

commission has "the power and authority not only to make and 

enforce its awards, but to protect itself and its awards from 

fraud, imposition and mistake." Harris v. Diamond Constr. Co., 

184 Va. 711, 720, 36 S.E.2d 573, 577 (1946); see also Avon Prods., 

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Inc. v. Ross, 14 Va. App. 1, 7, 415 S.E.2d 225, 228 (1992). The 

doctrine, however, requires a threshold showing of unfairness: 

The doctrine focuses on an employer's or the 

commission's use of superior knowledge of or 

experience with the Workers' Compensation Act 

or use of economic leverage, which results in 

an unjust deprivation to the employee of 

benefits warranted under the Act. 

Butler v. City of Virginia Beach, 22 Va. App. 601, 605, 471 S.E.2d 

830, 830 (1996). 

 This threshold showing can be found in all Virginia cases 

applying the doctrine. In Avon Prods., Inc., 14 Va. App. at 7, 

415 S.E.2d at 228, for example, we approved an award where the 

employer incorrectly represented to the claimant that all 

documents necessary to assure entry of the award had been timely 

filed. Similarly, in Odom v. Red Lobster # 235, 20 Va. App. 228, 

456 S.E.2d 140 (1995), we permitted the claimant's late filing of 

a claim because the employer and the commission had mistakenly led 

her to believe that a timely claim had already been filed. In 

John Driggs Co. v. Sommers, 228 Va. 729, 735, 324 S.E.2d 694, 697 

(1985), the Virginia Supreme Court relieved a claimant of an 

erroneous average weekly wage calculation prepared by the employer 

because the calculation "substantially deviate[d] from the 

statutory guidelines." 

Here, the commission found that the circumstances of this 

particular case have not worked an imposition upon Morissette. We 

agree. No evidence suggests that CTS misled Morissette or used 

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"superior knowledge of or experience with the Workers' 

Compensation Act" to deprive Morissette of his claimed 

compensation. Butler, 22 Va. App. at 605, 471 S.E.2d at 830. In 

November 1999, two months after Morissette left the employ of CTS, 

Barbeau admitted that CTS owed Morissette the wages but claimed a 

setoff for compensation CTS had previously paid. Morissette, 

however, did not file at that time an enforcement action or even a 

request for additional compensation. Instead, he waited sixteen 

months to file a claim for temporary total benefits. Neither 

Morissette's delay nor his election to treat his claim as one for 

temporary total benefits can be blamed, even indirectly, on CTS. 

III. 

In sum, we affirm the commission's application of Rule 1.2(B) 

to the claim for additional compensation. Morissette failed to 

preserve his objection to the commission's characterization of his 

claim and did not present any persuasive reasons for applying the 

doctrine of imposition.1

 Affirmed. 

 

1

 We do not address, nor is our holding meant to affect, the 

possibility of any other viable right of action that may exist to 

enforce Morissette's wage claim against CTS. 

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