David A. Lawhorne v. Tri-State Cable Comm. ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
DAVID ALLEN LAWHORNE
MEMORANDUM OPINION*
v. Record No. 0632-00-2 PER CURIAM
AUGUST 1, 2000
TRI-STATE CABLE COMMUNICATIONS/
T.W. FANCH ONE COMPANY AND
AMERICAN AUTOMOBILE INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(John B. Mann; Levit, Mann & Halligan, on
brief), for appellant.
(Daniel E. Lynch; John T. Cornett, Jr.;
Williams, Lynch & Whitt, on brief), for
appellees.
David Allen Lawhorne (claimant) contends that the Workers'
Compensation Commission erred in finding that (1) he failed to
give Tri-State Cable Communications (employer) written notice of
his January 12, 1997 accident within thirty days as required by
Code § 65.2-600; (2) he failed to prove a reasonable excuse for
any delay in giving timely notice; and (3) employer was not
required to prove that it was prejudiced by any lack of or delay
in giving notice of the accident. Pursuant to Rule 5A:21(b),
employer raises the additional question of whether the claimant
proved that he sustained an injury by accident occurring in the
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
course of his employment on January 12, 1997. 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.
I. and 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. See Code § 65.2-600.
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. See 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
(1991). Unless we can say as a matter of law that claimant's
evidence sustained his burden of proof, the commission's
findings are binding and conclusive upon us. See Tomko v.
Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835
(1970).
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In holding that claimant failed to meet the timely notice
requirement of Code § 65.2-600 and failed to establish a
reasonable excuse for not giving employer notice of his accident
within thirty days, the commission made the following findings:
On January 13, 1997, the claimant told
[Susan] Morse[, employer's systems manager,]
that he slipped in his driveway. The
claimant did not report that he was in the
process of storing his tools. The claimant
simply reported that he slipped on ice and
injured his back. Although he did tell his
employer about the accident and injury, the
Deputy Commissioner found that he did not
give any notice of any relationship between
the accident and his work. Morse testified
that the claimant told her that he slipped
and fell in his driveway, but that he did
not tell her that the accident was
work-related. There was nothing in the
claimant's report of the accident to cause
the employer to inquire about a work
relationship. In fact, notice by an
employee of a slip and fall in his driveway
at home would lead an employer to assume the
accident was non-work-related. . . .
Thus, the issue is whether the claimant
had a reasonable excuse for the delayed
notice. . . . The claimant first advised
the employer on April 30, 1997, that there
might be some causal relationship between
the injury and the employment. At this
point, the claimant had been receiving
extensive treatment from Dr. [Harold W.]
Nase and Dr. [Steven M.] Fiore. In fact,
surgery had been performed. Clearly, this
was not a trivial injury that slowly
worsened over time. Also, it was not an
injury which the claimant did not know was
employment-related. Since it was not
witnessed, and occurred at home, the
claimant was probably the only person who
did know of a work connection. His
testimony that he was unfamiliar with
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workers' compensation laws and that finally
his father advised him to report the
incident is not a sufficient excuse. . . .
Further, the claimant completed disability
forms in February 1997 which asked whether
the injury could be employment-related, and
he confirmed that the incident was not
work-related and that workers' compensation
benefits would not be sought.
The commission's findings are amply supported by the
record. It was undisputed that claimant did not give written
notice of a work-related accident to employer within thirty days
of January 12, 1997. Contrary to claimant's argument, nothing
contained in the Long Term Disability form completed by claimant
on February 7, 1997 indicated that claimant's accident was
work-related. In fact, claimant specifically indicated on the
form that the incident was not related to his occupation and
that he did not intend to file a workers' compensation claim.
Furthermore, the testimony of claimant and Morse
established that employer did not have actual knowledge of a
work-related accident until at least the end of April 1997 or
the beginning of May 1997, nearly four months after its
occurrence. Morse testified that prior to May 12, 1997,
claimant never told her that he was involved in any work-related
activity at the time that he slipped and fell on the ice in
January 1997. As fact finder, the commission was entitled to
conclude that claimant's testimony that he delayed giving notice
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of his accident because he was unaware of workers' compensation
laws was not a sufficient excuse.
Based upon this record, we cannot find as a matter of law
that claimant's evidence sustained his burden of proving that he
gave timely written notice of his accident as required by Code
§ 65.2-600; that employer had actual notice of his work-related
accident; or that claimant had a reasonable excuse for giving
late notice.
III.
Employer's burden of proving prejudice caused by a
claimant's delay in giving notice is not applicable until the
claimant has established a reasonable excuse for the delay to
the satisfaction of the commission. See 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 his January 12,
1997 work-related accident within thirty days of its occurrence,
the commission did not err in not requiring employer to show
prejudice.
IV.
Because our holdings with respect to issues I. through III.
raised by claimant dispose of this appeal in employer's favor,
we need not address the additional question raised by employer.
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For the reasons stated, we affirm the commission's
decision.
Affirmed.
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