Goodyear Tire, etc. v. Willie R. Moore ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
GOODYEAR TIRE & RUBBER COMPANY
AND
TRAVELERS INDEMNITY COMPANY OF
ILLINOIS MEMORANDUM OPINION *
PER CURIAM
v. Record No. 0946-96-3 OCTOBER 1, 1996
WILLIE R. MOORE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Martha White Medley; Daniel, Vaughan, Medley &
Smitherman, on brief), for appellants.
(Stephen G. Bass; Carter, Craig, Bass, Blair &
Kushner, on brief), for appellee.
Goodyear Tire & Rubber Company and its insurer (hereinafter
collectively referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that (1) Willie R. Moore
proved a reasonable excuse for failing to give his employer
timely notice of his June 10, 1995 injury by accident; and (2)
the employer failed to prove it suffered prejudice due to Moore's
late notice. 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.
Code § 65.2-600(d) requires an employee to give written
notice of an injury by accident within thirty days of the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
accident "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." In
applying the statute, the principles are well established that
"the burden of showing a reasonable excuse for . . . delay in
giving notice is upon the [employee, and, that] . . . the burden
is upon the employer to show that [the employer] has been
prejudiced by the delay." Maryland Cas. Co. v. Robinson, 149 Va.
307, 311, 141 S.E. 225, 226 (1928); see also Lucas v. Research
Analysis Corp., 209 Va. 583, 586, 166 S.E.2d 294, 296 (1969);
Westmoreland Coal Co. v. Coffey, 13 Va. App. 446, 448, 412 S.E.2d
209, 211 (1991).
The evidence proved that Moore sustained a sting or burn on
the left side "down in [his] privates" when he pulled a cable
over a tree as part of his job duties. Moore thought the burning
sensation was caused by sweat irritating his groin. Based upon
credible evidence in the record, the commission made the
following findings:
[Moore] believed that the groin discomfort
was a dermatological problem. He treated it
with rubbing alcohol. On July 16, 1995, he
first noticed a protuberance. He then
notified the plant nurse. Notice was
provided within thirty-seven days of the
accident, as soon as [Moore] learned that he
had sustained a hernia. . . . [Moore] was
successfully treated and operated upon on
August 3, 1995, more than two weeks after he
reported the accident.
The commission also found that Moore offered a reasonable excuse
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for failing to provide written notice in accordance with Code
§ 65.2-600 and that the employer did not prove prejudice from the
delay.
In reviewing decisions of the commission with respect to
reasonable excuse under Code § 65.2-600 (formerly 65.1-85), the
Supreme Court has stated that the principal issue is whether
evidence is offered to the satisfaction of the commission. See
Lucas, 209 Va. at 586, 166 S.E.2d at 296. The record contains
credible evidence from which the commission could reasonably find
that Moore's excuse was reasonable. Thus, we may not disturb
those findings on appeal. See James v. Capitol Steel Constr.
Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
Moreover, the employer presented no evidence to show that
the delay of seven days beyond the thirty-day notice period
increased the severity of Moore's injury, extended his recovery
time, or increased his absence from work. Thus, the commission's
finding that the employer suffered no prejudice as a result of
Moore's late notice is binding and conclusive upon this Court on
appeal. See Tomko v. Michael's Plastering Co., 210 Va. 697, 699,
173 S.E.2d 833, 835 (1970).
For these reasons, we affirm the commission's decision.
Affirmed.
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