Fairfax County School Board v. Michael A. Horgan

COURT OF APPEALS OF VIRGINIA
Present: Judges Haley, Powell and Senior Judge Willis
Argued at Alexandria, Virginia
FAIRFAX COUNTY SCHOOL BOARD
MEMORANDUM OPINION * BY
v. Record No. 2121-10-4 JUDGE CLEO E. POWELL
JUNE 7, 2011
MICHAEL A. HORGAN
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Michael N. Salveson (Andrea K. Zizzi; Littler Mendelson, P.C., on
briefs), for appellant.
James E. Swiger (The Law Office of James E. Swiger, PLLC, on
brief), for appellee.
Fairfax County School Board (“the employer”) appeals a decision of the Workers’
Compensation Commission (“the commission”) awarding benefits to Michael A. Horgan
(“Horgan”). The employer argues that the full commission erred in finding that Horgan’s claim
is not barred by his failure to give notice to the employer within the statutory time frame.
Specifically, the employer asserts that 1) Horgan failed to meet his burden to provide a
reasonable excuse for not providing the employer with timely notice of his injury, and 2) that
Horgan’s failure to provide notice prejudiced the employer because the employer was denied the
opportunity to investigate the accident and provide medical care to minimize the extent of the
injury. For the reasons that follow, we affirm the commission’s decision.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I. BACKGROUND
On November 12, 2008, Horgan injured his right knee while at work. He initially
believed that it was not a serious injury and would heal in time. After the injury, Horgan
attempted to run recreationally several times but pain prevented him from doing so. In March,
when his knee did not improve, he sought medical treatment. He then learned that he tore his
right medial meniscus and needed surgery to repair it. On April 17, 2009, he reported to his
employer that he must have torn his meniscus when he hurt his knee on November 12, 2008
because that was the only injury that he had preceding the pain.
At the hearing before the deputy commissioner, Horgan testified that when he initially
injured himself,
I thought it was something like a strain or a stretch and I walked it
off and as an old athlete with previous injuries or hurts and pains, I
just didn’t think it was serious and just thought I’d walk it off, I’d
be okay, I’d just take it easy. I was also the workman’s comp rep
in my building, so I knew if there was an issue I should report it
right away, and . . . I just didn’t think it was serious.
He stated that he reported the injury as soon as he went to the doctor and learned the severity of
it. The deputy commissioner found that Horgan’s belief that his injury was insignificant
“reasonably excuses the failure to provide notice within thirty days.” The deputy commissioner
further found that the employer failed to meet its burden to demonstrate that Horgan’s delay
prejudiced it.
Employer appealed to the full commission. The full commission found that Horgan
provided a reasonable excuse for not giving timely notice of his injury, reasoning that
[i]n this case, claimant testified that he initially thought that his
injury was not serious. He self-treated with activity limitation and
“tincture of time” before seeking medical care. Once he sought
orthopedic care for his knee problem, he reported his injury to the
employer 23 days after Dr. McMahon diagnosed the meniscal tear.
His recorded statement suggests that he first contacted the
workers’ compensation insurer even before notifying his employer.
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As to prejudice, the majority of the full commission 1 determined that “there was no question that
this was a compensable accident, so the employer did not lose the opportunity to investigate the
claim or prepare its defense.” The majority of the full commission further found that
[t]he employer offered no evidence of prejudice at the hearing. If
prejudice resulted from the claimant’s delay in reporting and in
seeking medical care, it is that his activity may have worsened the
claimant’s condition. In its written statement, the employer
speculates that the claimant might not have needed surgery for his
injured knee had he refrained from running. The employer offered
no medical evidence that claimant’s knee injury would have been
worsened by his activities while he attempted to self-treat.
This appeal follows.
II. ANALYSIS
“On appeal, we view the evidence in the light most favorable to the prevailing party
before the commission.” Central Va. Obstetrics & Gynecology Assoc., P.C. v. Whitfield, 42
Va. App. 264, 269, 590 S.E.2d 631, 634 (2004). “And while we conduct a de novo review of
legal issues on matters arising from the commission, ‘we give great weight to the commission’s
construction of the [Workers’ Compensation] Act, and we defer to the commission’s factual
findings if supported by credible evidence in the record.’” Masonite Holdings, Inc. v. Cubbage,
53 Va. App. 13, 19-20, 668 S.E.2d 809, 812 (2008) (quoting Bay Concrete Constr. Co. v. Davis,
43 Va. App. 528, 538-39, 600 S.E.2d 144, 150 (2004)).
Code § 65.2-600(A) requires that “[e]very injured employee or his representative shall
immediately on the occurrence of an accident or as soon thereafter as practicable, give or cause
to be given to employer a written notice of the accident.” Notice shall be given within thirty
days of the accident “unless reasonable excuse is made to the satisfaction of the [c]ommission
1
Commissioner Williams dissented finding that Horgan failed to provide reasonable
excuse for failing to provide timely notice of his injury and that this delay prejudiced employer.
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for not giving such notice and the [c]ommission is satisfied that the employer has not been
prejudiced thereby.” Code § 65.2-600(D).
In order to give notice, one must have knowledge of the injury for
which a claim is made. Lucas [v. Research Analysis Corp.], 209
Va. [583,] 585, 166 S.E.2d [294,] 296 [(1969)]; Maryland Casualty
Co. [v. Robinson], 149 Va. [307,] 311, 141 S.E. [225,] 226
[(1928)]. Notice is reasonably excused if an accident, first
regarded as trivial, is later learned through medical diagnosis to be
serious. Lucas, 209 Va. at 586, 166 S.E.2d at 296.
Westmoreland Coal Co. v. Coffey, 13 Va. App. 446, 449, 412 S.E.2d 209, 211 (1991).
Here, the full commission found that Horgan provided a reasonable excuse for not giving
his employer timely notice of his injury. This finding is supported by Horgan’s testimony at the
hearing in which he testified that when he initially injured himself, he didn’t think the injury was
serious and thought it would heal on its own in time. He stated that he reported the injury as
soon as he went to the doctor and learned the severity of it. Thus, the commission’s finding that
Horgan provided reasonable excuse for the late reporting is not without evidence to support it.
“Under Code § 65.2-600, after a claimant provides a reasonable excuse for the delay in
notification, the employer has ‘the burden of showing prejudice caused by the delay.’” Batal
Builders, Inc. v. Hi-Tech Concrete, Inc., 18 Va. App. 401, 406, 444 S.E.2d 555, 558 (1994)
(quoting Coffey, 13 Va. App. at 448, 412 S.E.2d at 211).
Here, the commission found that the employer failed to meet its burden to prove
prejudice caused by Horgan’s delay. Indeed, a review of the record supports the commission’s
finding that employer merely argued that it was prejudiced because time and activity could have
worsened Horgan’s injury but provided no evidence to support that argument. Thus, the record
supports the commission’s finding that the employer failed to demonstrate that it was prejudiced.
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III. CONCLUSION
For the foregoing reasons, we affirm the commission’s decision.
Affirmed.
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