COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Kelsey
Argued at Richmond, Virginia
JOHANNA ALLYN
MEMORANDUM OPINION * BY
v. Record No. 1889-02-2 JUDGE D. ARTHUR KELSEY
FEBRUARY 11, 2003
HANOVER COUNTY SOCIAL SERVICES AND
VIRGINIA MUNICIPAL GROUP
SELF-INSURANCE ASSOCIATION
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
William C. Herbert, III, for appellant.
Ralph L. Whitt, Jr. (Michael P. Del Bueno;
Whitt & Associates, on brief), for appellees.
Johanna Allyn appeals a decision of the Virginia Workers'
Compensation Commission denying her claim for benefits because
she did not provide timely notice to her employer as required by
Code § 65.2-600(D) and offered no reasonable excuse for failing
to do so. Finding no error in the commission's decision, we
affirm.
I.
On appeal, "we view the evidence in the light most favorable
to the prevailing party" and grant that party the benefit of all
reasonable inferences. Tomes v. James City (County Of) Fire, 39
Va. App. 424, 429, 573 S.E.2d 312, 315 (2002); Grayson County
* Pursuant to Code § 17.1-413 this opinion is not
designated for publication.
Sch. Bd. v. Cornett, 39 Va. App. 279, 281, 572 S.E.2d 505, 506
(2002).
In 1999, Allyn worked as an Administrative Manager for
Hanover County Social Services ("Hanover"). One of her duties
included managing an emergency shelter for county residents in
the event of a natural disaster. When Hurricane Floyd
approached Virginia on September 16, 1999, Allyn began making
preparations to operate a shelter at Patrick Henry High School.
Early that morning, Allyn's husband drove her to the high school
and helped her unload boxes from the car. While carrying a box
into the shelter, he slipped on the wet floor and suffered a
severe head injury.
Allyn witnessed her husband's fall and claims to have been
emotionally traumatized by it. Shortly after her husband's
accident, Allyn visited her family physician, Dr. Donald Ganley,
complaining of shortness of breath. Dr. Ganley attributed her
symptoms to "'tremendous stress' resulting from her husband's
injury" and referred her to Julia Frischtick, a licensed
clinical social worker.
Frischtick first saw Allyn on October 13, 1999. Frischtick
noted that Allyn had "increased trouble dealing with husband's
accident – PTSD?" After two additional appointments, Frischtick
concluded that Allyn's symptoms were intensifying and referred
her to Dr. Anne Sitarz, a licensed clinical psychologist, for
additional treatment. In making this referral, Frischtick felt
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the condition was "not anything I can deal with, this is trauma
resolution, and I need for you to see somebody else."
During her first appointment with Dr. Sitarz on November 9,
1999, Allyn stated on the Adult Registration Form, "Major reason
for seeking help at this time: 'husband's accident very
unsettling, need help coping w/trauma.'" After evaluating
Allyn, Dr. Sitarz "concurred with Ms. Frischtick that [Allyn]
had indeed post-traumatic stress disorder, and she had all the
symptoms to qualify for that diagnosis." Dr. Sitarz also
concluded that Allyn's condition was "caused by the accident her
husband had at Patrick Henry."
Donna Douglas, Allyn's supervisor, was aware of the injury
sustained by Allyn's husband the day it happened. Douglas,
however, did not learn of any alleged psychological injury to
Allyn until at least January 27, 2000, when Douglas became aware
of the PTSD diagnosis. No other evidence showed that Hanover
knew, prior to January 27, 2000, of any psychological injury to
Allyn arising out of her husband's fall.
The deputy commissioner denied Allyn's claim, finding that
"the evidence establishes without contradiction that the
employer [Douglas] first learned of the claimant's injury [PTSD]
on January 27, 2000, more than four months after the hurricane
events, and more than three months after the diagnosis of PTSD
attributable to the events that day . . . ." (bracketed
material in original). Because Allyn offered no evidence,
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"testimonial or otherwise, to explain or justify this delay in
reporting her injury," the deputy commissioner ruled that the
claim was barred by the 30-day notice requirement of Code
§ 65.2-600. On appeal, the full commission affirmed, holding
that "the deputy commissioner correctly found that the Claim was
barred by Code § 65.2-600."
II.
On appeal, we defer to the commission in its role as fact
finder. VFP, Inc. v. Shepherd, 39 Va. App. 289, 292, 572 S.E.2d
510, 511-12 (2002). "If supported by credible evidence, the
factual findings of the commission are binding on appeal."
Tomes, 39 Va. App. at 430, 573 S.E.2d at 315 (citation omitted).
When "determining whether credible evidence exists," we cannot
"retry the facts, reweigh the preponderance of the evidence, or
make [our] own determination of the credibility of the
witnesses." Wagner Enters. v. Brooks, 12 Va. App. 890, 894, 407
S.E.2d 32, 35 (1991). In addition, the commission's
"conclusions upon conflicting inferences, legitimately drawn
from proven facts, are equally binding on appeal." Watkins v.
Halco Eng'g, Inc., 225 Va. 97, 101, 300 S.E.2d 761, 763 (1983).
Unless it involves a statutory interpretation or other
exposition of legal principle, the issue of timely notice
ordinarily poses a question of fact. See, e.g., State Farm Fire
& Cas. Co. v. Scott, 236 Va. 116, 120-21, 372 S.E.2d 383, 385
(1988) ("[W]hether notice was given within a reasonable time
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after the accident was a question to be resolved by the fact
finder based upon all the facts and circumstances."); Lord v.
State Farm, 224 Va. 283, 284, 295 S.E.2d 796, 797 (1982) (The
"question of timely notice is usually for the fact-finder to
determine . . . .").
III.
Code § 65.2-600(A) requires an employee to "immediately on
the occurrence of an accident or as soon thereafter as
practicable, give or cause to be given to the employer a written
notice of the accident." Under § 65.2-600(B), the notice must
state "the nature and cause of the accident and the injury." 1
Subsection D sets a time limit for the required notice:
No compensation or medical benefit shall be
payable unless such written notice is given
within thirty days after the occurrence of
the accident or death, 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 commission found that Allyn did not give notice to her
employer within this 30-day period. Ample evidence supports the
1
The notice need not be in writing "if the employer has
actual notice through a foreman or other superior officer."
Goodyear Tire & Rubber Co. v. Harris, 35 Va. App. 162, 171, 543
S.E.2d 619, 623 (2001); Newport News Shipbuilding & Dry Dock Co.
v. Barnes, 32 Va. App. 66, 70, 526 S.E.2d 298, 300 (2000); Kane
Plumbing, Inc. v. Small, 7 Va. App. 132, 138, 371 S.E.2d 828,
832 (1988).
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commission's decision on this issue. The finding that Allyn had
"knowledge of the injury" on November 9, l999, rests securely on
Allyn's testimony as well as the records of Ms. Frischtick and
Dr. Sitarz. The evidence also demonstrated that "the employer
first learned of the claimant's injury on January 27, 2000, more
than four months after the hurricane events, and more than three
months after the diagnosis of PTSD attributable to the events
that day . . . ." Though Hanover knew about the accident
involving Allyn's husband on the day it happened, Hanover knew
nothing about Allyn's alleged psychological injury until months
afterwards.
Having failed to give timely notice, Allyn bore the burden
of proving "a reasonable excuse" for the delay. Bogese Builder
v. Robertson, 17 Va. App. 700, 706, 440 S.E.2d 622, 626 (1994);
see also Wagner Enters., 12 Va. App. at 896, 407 S.E.2d at 36;
Lucas v. Research Analysis Corp., 209 Va. 583, 586, 166 S.E.2d
294, 296 (1969). On this issue, the deputy commissioner found
that Allyn "offered no evidence, testimonial or otherwise, to
explain or justify this delay in reporting her injury." The
full commission agreed, noting that no evidence supported
Allyn's claim that "she was prevented by her injury from
providing proper notice." Credible evidence in the record
supports the commission's findings.
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IV.
In its capacity as fact finder, the commission properly
held that Allyn did not provide timely notice under Code
§ 65.2-600(D) and offered no reasonable excuse for failing to do
so. Finding no error in the commission's decision, we affirm. 2
Affirmed.
2
The appellees, Hanover County Social Services and its
insurer, Virginia Municipal Group Self-Insurance Association,
assign cross-error to the commission's finding that Allyn's PTSD
arose from her employment. Given our holding, we need not
address the issues stemming from the assignment of cross-error.
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