COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatric k, Judges Bent on and Kelsey Argued at Rich mond, Virginia

RONALD L. MORISSETTE MEMORANDUM OPINION * BY v. Record No. 1820-02-2 JUDGE D. ARTHUR KELSEY FEBRUARY 19, 2003 CUSTOM TELEPHONE SE RVICE, INC. AND VIRGINIA FARM BURE AU FIRE & CASUALTY INSURANCE COMPANY

FROM THE VIRGINIA WORKER S' COMPENSATION COMMISSION Gregory O. Harbison (Geoffrey R. McDonald & Associates, P.C., on brief), for appellant. Cathie W. Howard (P ierce & Howard, P.C., on brief), for appellees.

Ronald L. Mori ssette asserts that th e Virginia Workers' Compensation Commission erroneously ch aracterized hi s claim as a change-of-cond ition request seeking "additional co mpensation," and thus, subject to the 90-day limitation of Va. Work. Comp. Rule 1.2(B). Even if the time bar applied, Mori ssette contends, his claim nonethel ess should have be en allowed under the doctrine of imposition. For the following reas ons, we disagree with Morissette and affi rm 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 "compute r installer." Morissette suffered an injury to his back in Oc tober 1998, but was able to work until he experienced seve re pain on the mo rning of December 2, 1998. From December 2, 1998 unti l January 8, 1999, he was unable to work. During this period , CTS paid Morissette an advance on his wages so that he would ha ve income "until the work men's compensa tion first check came in." An award was entere d in January 1999 granting Morissette compensation for temporar y total inca pacitation beginning Decemb er 9, 1998. Morissette re turned to work on light duty on April 15 , 1999. Upon re turning to work, Michael Barbeau, president of CTS, told him "thing s were tight" financially. Morissette told Ba rbeau "he would wo rk with the comp any as long as things did not get out of hand," and he returned to work knowing that he would no t then receive wages fo r his light duty work. On April 16, 1999, Mo rissette signed an Agreed Statement of Fact (ASF) and Supple mental Memorandum of Agreement (MOA) reflecting that he retu rned to work on Apri l 15 at a lower than

- 2 -pre-injury average we ekly wage of $173.0 4. The co mmission approved the MOA and entered a Su pplemental Award Order on April 30, 1999, providin g Morissette with temporary part ial disability benefits in the am ount of $464.52 commencing April 15, 1999. From April 15, 1999, th rough July 26, 1999, a period of over three months, Moriss ette received part ial disability pa yments from the carrier, Virginia Farm Bureau Fire & Casualty Insura nce Company. During this time, however, CTS paid him no wages. On July 20, 1999, Morissette signed another ASF and supplemental MOA that sh owed him working at a lower than pre-injury wage of $1 15.36 as of June 29, 1999. The commission entered a new Su pplemental Award Order granting Morissette temporary part ial disability be nefits in the we ekly amount of $502.98 commenci ng June 29, 1999. Morisset te worked at this rate, still not receivin g any wages from CTS, for anothe r month. On September 1, 1999, Mori ssette started his own business and ceased working for CTS. On November 15, 1999 , Barbeau sent a lett er stating that CTS would pay Morisset te certain reimbu rsable costs and commissions. Barbeau, however, added that the pr offered 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.
- 3 -On January 18, 2001, nearly sixteen months after leaving CTS, Morissette filed a clai m 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 clai m by asserting that Rule 1.2(B) barred Morissette's request for addi tional compensation and, alternatively, by seeking a credit for amounts paid to Morissette, including wages pa id from December 2, 1998 throug h January 1999. Under Rule 1.2(B), "[a] dditional compen sation 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 Mori ssette's claim. The de puty commissioner also awarded CTS a cred it against future paymen ts in the amount of

- 4 -$3,887.70. Th e full commission affirmed the deputy commissioner's application of Ru le 1.2(B) and de clined to apply the doctrine of imposition to cu re the time default. Imposition would not be appropriate, the commis sion held, because Mori ssette "agreed, or at least acquiesc ed, that he woul d not be paid his wages from April 15, 1999, un til August 30, 1999, beca use of the employer's poor financial condit ion."

II. Rule 1.2(B) serves as a narrow exceptio n to the prohibition against retroact ive 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 "r etroactively for a limited period of time" prior to the filing of a change-of-condit ion 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 awar d benefits beyo nd the period authorized by the rule." Id. Morissette claims the commissioner erroneously characterized his claim as one for ad ditional compensation (implicating Rule 1.2(B)'s 90-day deadli ne), rather than one for enforcem ent of a prior award (impli cating the commission's continuing authority under Code § 65.2-710). If the claim had be en properly deemed a mere enforcement action , Morissette argues, the 90-day deadline would not apply.

- 5 -Because Morisset te did not make this argument to the commission, we wi ll 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, 13 8, 267 S.E.2d 149, 151 (1980); Shenk v. Shenk , 39 Va. App. 161, 169, 571 S.E.2d 896, 901 (2002) (To pr eserve an issu e for appeal, the "specific argument" made on appeal must have been made below.). Though Rule 5A:18 contains a "good ca use" or "ends of justice" exception to pr ocedural default, we decline to use it in this case. See generally M. Morgan Cherry & Assocs., Ltd. v. Cherry , 38 Va. App. 693, 701, 56 8 S.E.2d 391, 395 (2002) ( en banc ). This exception "i s 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 (1 989)). Mo rissette presents no basi s for declaring th e commission's application of Rule 1.2(B) to Morisset te's claim to be a mi scarriage of justice. Morissette also argu es that, even if Ru le 1.2(B) bars his claim, the doctrine of imposition should ap ply and reli eve him of his procedural defaul t. Under th e imposition doctrine, the commission has "the power and author ity not only to make and enforce its awards , but to protect itself and its awards from fraud, imposition and mistake." Harris v. Diam ond Constr. Co. , 184 Va. 711, 720, 36 S. E.2d 573, 577 (1946); see also Avon Prods.,

- 6 -Inc. v. Ross , 14 Va. App. 1, 7, 415 S. E.2d 225, 228 (1992). The doctrine, howe ver, requires a threshol d showing of unfairness: The doctrine focuses on an employer's or the commission's use of superior kn owledge of or experience with the Workers' Compensation Act or use of economic leve rage, which results in an unjust deprivation to the employee of benefits warrante d under the Act. Butler v. City of Virginia Beach , 22 Va. App. 601, 605, 471 S.E.2d 830, 830 (1996). This threshold show ing can be found in all Virginia cases applying the doctrine. In Avon Prods., Inc. , 14 Va. App. at 7, 415 S.E.2d at 22 8, for example, we approved an award where the employer incorrectly represented to the claimant that all documents nece ssary to assure en try of the award had been timely filed. Simi larly, in Odom v. Red Lobster # 235 , 20 Va. App. 228, 456 S.E.2d 140 (1995), we permitted th e claimant's la te filing of a claim because th e employer and the commis sion had mistakenly led her to believe that a timely claim had alread y been filed. In John Driggs Co. v. Sommers , 228 Va. 729, 735, 324 S.E.2d 694, 697 (1985), the Virgin ia Supreme Cour t relieved a claimant of an

erroneous averag e weekly wage calc ulation prep ared by th e employer because the calc ulation "substan tially deviate[d] from the statutory gu idelines." Here, the commis sion found that the ci rcumstances of this particular case ha ve not worked an imposition upon Morissette. We agree. No evidence su ggests that CT S misled Moriss ette or used

- 7 -"superior knowle dge of or expe rience with the Workers' Compensation Act" to deprive Morisset te of his claimed compensation. Butler , 22 Va. App. at 605, 47 1 S.E.2d at 830. In November 1999, two months after Morisset te left the em ploy of CTS, Barbeau admitt ed that CTS owed Morisset te the wages but claimed a setoff for compensati on CTS had previously paid. Morissette, however, did not file at that time an enforcem ent action or even a request for additi onal compensation. Inst ead, he waited sixteen months to file a claim for temp orary total bene fits. Neither Morissette's delay nor his election to treat his clai m as one for temporary total be nefits can be bl amed, even indirectly, on CTS.

III. In sum, we affirm th e commission's applicat ion of Rule 1.2(B) to the claim for additi onal compensation. Mo rissette failed to preserve his objection to the commissi on's characteri zation of his claim and did not present any persua sive reasons fo r applying the doctrine of imposition. 1 Affirmed

.

1 We do not address, nor is our holding meant to affect, the possibility of any othe r viable right of acti on that may exist to enforce Morisset te's wage clai m against CTS.

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