Gloria Jackson Hicks v. nView Corporation ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
GLORIA JACKSON HICKS
MEMORANDUM OPINION *
v. Record No. 1090-96-1 PER CURIAM
OCTOBER 8, 1996
nVIEW CORPORATION
AND
COMMERCIAL UNION INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Gloria Jackson Hicks, pro se, on briefs).
(Charles F. Midkiff; Scott C. Ford; Midkiff &
Hiner, on brief), for appellees.
Gloria Jackson Hicks ("claimant") contends that the Workers'
Compensation Commission ("commission") erred in finding that (1)
her failure to give timely notice to nView Corporation
("employer") as required by Code § 65.2-600 barred her claim
alleging an April 18, 1995 injury by accident; (2) she failed to
prove an April 18, 1995 injury by accident arising out of and in
the course of her employment; and (3) employer's failure to file
an Employer's First Report of Accident concerning her October 12,
1992 industrial accident did not toll the applicable statute of
limitations. 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.
Code § 65.2-600 prohibits an employee from receiving
compensation or physician's fees unless the employee has given
the employer written notice of the accident, or the employer had
knowledge of the accident. Additionally, an employee must
furnish the employer written notice within thirty days of the
accident in order to receive compensation, "unless reasonable
excuse is made to the satisfaction of the Commission for not
giving such notice and the Commission is satisfied that the
employer has not been prejudiced thereby." Code § 65.2-600(D).
The full commission affirmed by reference the deputy
commissioner's conclusion that claimant failed to meet her burden
of proving timely notice. The deputy commissioner found that
claimant did not give notice to employer of her alleged April 18,
1995 industrial accident until June 28, 1995, more than thirty
days after the accident allegedly occurred.
Claimant testified that on April 18, 1995, she told her
supervisor, Jeanette Weaver, that she was going home due to back
pain. Claimant also stated that she called Weaver later that day
and told her that she would not be coming into work due to back
pain. Claimant admitted that she did not tell Weaver on either
occasion that she had sustained an accident at work that day
resulting in a back injury. Claimant conceded that the first
time she gave employer notice of the alleged April 18, 1995
accident was on June 28, 1995, when she filed her claim for
benefits. Weaver and Carol Wilson, employer's former human
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resources director, testified that claimant told them on April
18, 1995, that she could not work due to back pain related to an
October 1992 injury.
The testimony of claimant, Weaver, and Wilson provides
credible evidence to support the commission's finding that
claimant did not give employer notice of her April 18, 1995
accident within thirty days of its occurrence. Therefore, we may
not disturb this finding on appeal. See James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
The deputy commissioner also found that claimant offered no
excuse or justification for her failure to give timely notice.
The burden for showing a reasonable excuse for failure to give
timely notice is upon the claimant. 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 was
sufficient to sustain her burden proving a reasonable excuse, 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 presented no evidence to explain why she failed to
give employer timely notice of the alleged April 18, 1995
accident. Therefore, we cannot find as a matter of law that she
met her burden of proof. Accordingly, we find that the
commission did not err in ruling that claimant's application
alleging an April 18, 1995 injury by accident was barred because
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claimant failed to give employer timely notice as required by
Code § 65.2-600.
Claimant did not argue before the commission that her April
18, 1995 injury was causally related to an October 12, 1992
injury by accident, and that the statute of limitations with
respect to that accident was tolled because employer failed to
file an Employer's First Report of Accident. Accordingly, we
will not consider these issues for the first time on appeal. See
Green v. Warwick Plumbing & Heating Corp., 5 Va. App. 409, 413,
364 S.E.2d 4, 6 (1988); Rule 5A:18. Moreover, because our ruling
on claimant's first question presented disposes of this appeal,
we need not address claimant's other questions presented.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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