Sandra A. Wheeler v. Roanoke Memorial Hosp. ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
SANDRA A. WHEELER
v. Record No. 2682-96-3 MEMORANDUM OPINION *
PER CURIAM
ROANOKE MEMORIAL HOSPITAL MARCH 18, 1997
AND
PENNSYLVANIA MANUFACTURERS'
ASSOCIATION INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(William H. Fralin, Jr.; Jolly, Place, Fralin &
Prillaman, on briefs), for appellant.
(Richard D. Lucas; Carter, Brown & Osborne,
P.C., on brief), for appellees.
Sandra A. Wheeler (claimant) contends that the Workers'
Compensation Commission (commission) erred in finding that (1)
the notice requirements contained in Code § 65.2-600 applied to
her claim for a back injury arising out of her August 17, 1995
compensable injury by accident; (2) she did not provide a
reasonable excuse for her failure to give timely notice of her
back injury to Roanoke Memorial Hospital (employer); and (3)
employer was not required to show that it was prejudiced by
claimant's failure to give timely notice of her back injury.
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.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I.
On August 17, 1995, claimant tripped and fell at work,
sustaining a right ankle fracture. Employer accepted the ankle
fracture as compensable. Thereafter, the parties executed a
memorandum of agreement with respect to the ankle fracture. On
January 23, 1996, the commission entered an award pursuant to the
memorandum of agreement.
Claimant testified that at the time of her accident, she
also felt immediate low back pain. However, she did not report
her back pain to any physician until December 1995. In addition,
she did not notify employer of her back injury until she filed a
change in condition application for a back injury on February 28,
1996, six months after her accident and two and one-half months
after she had undergone back surgery.
"'The "change in condition" which justifies reopening and
modification is ordinarily a change, for better or worse, in
claimant's physical condition. This change may take such form as
progression, deterioration, or aggravation of the compensable
condition. . . .'" Board of Supervisors v. Martin, 3 Va. App.
139, 141, 348 S.E.2d 540, 541 (1986) (quoting Leonard v. Arnold,
218 Va. 210, 214, 237 S.E.2d 97, 99 (1977) (other citation
omitted)).
The commission correctly held that claimant's back injury
was not a change in condition. The evidence established that
claimant's back injury existed before the commission's award for
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compensation and medical expenses related to claimant's
compensable ankle fracture. The back injury did not arise after
the award as a progression, deterioration, or aggravation of
claimant's compensable ankle fracture. Moreover, no evidence
showed that claimant's back injury was a compensable consequence
of the ankle fracture. Rather, the evidence established that the
back injury was a separate and distinct injury, which occurred
immediately upon the happening of the accident. Accordingly, the
commission did not err in finding that the notice provisions
contained in Code § 65.2-600 applied to claimant's back injury.
II.
Code § 65.2-600 prohibits an employee from receiving
compensation or medical benefits unless the employee has given
the employer written notice of the accident within thirty days of
its occurrence. The notice must state the name and address of
the employee, the time and place of the accident, the nature and
cause of the accident, and the injury. Id. A claimant's failure
to give timely notice is not a bar to an award of compensation
and medical benefits if the claimant shows a reasonable excuse to
the satisfaction of the commission for not giving such notice and
the commission is satisfied that the employer has not been
prejudiced thereby. Id.
"The employee [bears] the burden of proving a reasonable
excuse for failing to give timely notice of any injury." Wagner
Enters., Inc. v. Brooks, 12 Va. App. 890, 896, 407 S.E.2d 32, 36
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(1991). Unless we can say as a matter of law that claimant's
evidence sustained her burden of proof, 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).
Claimant testified that she did not give timely notice of
her back injury to employer because she and her physician focused
on her more painful ankle injury. In addition, she stated that
she did not realize that the back injury was related to her fall
until December 1995 when her physician took her off her crutches,
and she was uncertain as to whether the back injury was the
result of the fall or of a prior back condition.
The commission did not find these explanations satisfactory
to excuse claimant's failure to give timely notice pursuant to
Code § 65.2-600. In so ruling, the commission found as follows:
The claimant testified that she was
aware of low back pain immediately after the
fall. If so, there was no reason that this
complaint could not have been made known to
her employer and the treating physicians at
that time, or certainly within 30 days of the
occurrence. Instead, no complaint was made
for three and one-half months after the fall.
This is not a defect or inaccuracy in her
notice of accident to the employer, as argued
by counsel for the claimant, but rather is an
omission. Moreover, it is an omission which
is not satisfactorily explained . . . .
Based upon this record, we cannot say as a matter of law
that claimant's evidence sustained her burden of proving that she
had a reasonable excuse for failing to give timely notice of her
back injury to employer as required by Code § 65.2-600.
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III.
The burden of proving prejudice caused by a claimant's delay
in giving notice does not shift to the employer unless the
claimant has established a reasonable excuse for the delay to the
satisfaction of the commission. Lucas v. Research Analysis
Corp., 209 Va. 583, 586, 166 S.E.2d 294, 296 (1969); Maryland
Cas. Co. v. Robinson, 149 Va. 307, 311, 141 S.E. 225, 226 (1928).
Because claimant did not establish a reasonable excuse for
failing to give employer notice of her back injury within thirty
days of its occurrence, the commission did not err in not
requiring employer to show prejudice.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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