COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
PHILIP MORRIS USA AND LUMBERMENS
MUTUAL CASUALTY COMPANY
MEMORANDUM OPINION *
v. Record No. 1610-98-2 PER CURIAM
DECEMBER 8, 1998
MAMIE E. PETERSON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Thomas J. Mitchell; Hunton & Williams, on
brief), for appellants.
(Ruth E. Nathanson; Maloney, Huennekens,
Parks, Gecker & Parsons, on brief), for
appellee.
Philip Morris USA and its insurer (hereinafter referred to
as "employer") contend that the Workers' Compensation Commission
("commission") erred in finding that (1) Mamie E. Peterson
("claimant") proved a reasonable excuse for failing to give
employer timely notice of her February 26, 1997 injury by
accident; and (2) employer's evidence failed to sustain its
burden of proving that prejudice resulted from claimant's failure
to give timely notice of her injury. 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.
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 § 17.1-413, recodifying 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
"[t]he 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).
In ruling that claimant offered a reasonable excuse for her
failure to provide written notice in accordance with Code
§ 65.2-600, the commission made the following findings:
[T]he claimant did not delay in reporting her
injury once its severity was known. On April
16, 1997, the day after her arm became
noticeably swollen and hot, she promptly told
her employer about the injury. It was not
until after April 16, 1997, that Dr.
[Reinaldo] Menendez[, III] excused the
claimant from work because of the injury.
Her actions were consistent and confirm that
she originally thought the injury trivial.
Accordingly, we find that the claimant has
satisfactorily established a reasonable
excuse for late notice.
. . . The record in this case does not
contain sufficient evidence of prejudice.
The employer has not presented any evidence
to show that the lack of notice until
approximately 19 days after the 30-day notice
period had expired caused it any prejudice.
- 2 -
In reviewing decisions of the commission with respect to
reasonable excuse under Code § 65.2-600 (formerly Code
§ 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.
On February 26, 1997, claimant injured her shoulder while
hanging trays during the course of her employment. She felt a
sharp pain in her shoulder, but was able to complete her shift.
At home, she took aspirin and applied heat to her shoulder. She
called in sick the following day, which was the day before her
previously scheduled vacation. Claimant believed that her pain
would go away during her vacation.
During her vacation, claimant visited her primary care
physician, Dr. Menendez, for an unrelated reason. However, due
to her complaints of pain, Dr. Menendez injected claimant's
shoulder and prescribed ibuprofen. After her vacation, claimant
continued to work without interruption and treated her shoulder
at home. She believed that by treating her injury with heat at
home, she would not have to miss work. She had been unemployed
for two and one-half years, and had just returned to her job five
months before the February 26, 1997 incident.
On April 15, 1997, after working a full shift, claimant's
arm was swollen and hot. On April 16, 1997, claimant asked her
supervisor for another job assignment because of the pain in her
arm. Later that day, claimant sought treatment from the on-site
- 3 -
nurse and also talked to the plant manager and union
representative about the February 26, 1997 incident. That was
employer's first notice of the accident, approximately two and
one-half weeks after the expiration of the thirty-day notice
period.
On September 2, 1997, Dr. D. Christopher Young, an
orthopedic surgeon, reported that claimant "felt a pain in her
shoulder but . . . kept walking [sic] and did not think that she
had done any major injury to her shoulder."
The commission found that claimant's excuse was reasonable.
Claimant's testimony, which was corroborated by Dr. Young's
medical history, provides credible evidence from which the
commission could reasonably infer that claimant did not
immediately report the February 26, 1997 accident because she
thought her injury was minor, and, therefore, would improve on
its own with at-home treatment. "Notice is reasonably excused if
an accident, first regarded as trivial, is later learned through
medical diagnosis to be serious." Coffey, 13 Va. App. at 449,
412 S.E.2d at 211. Because credible evidence supports the
commission's finding that claimant had a reasonable excuse for
not reporting the accident to her employer earlier and because no
evidence proved that employer was prejudiced by the delay, we may
not disturb the commission's decision. See James v. Capitol
Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488
(1989).
- 4 -
For these reasons, we affirm the commission's decision.
Affirmed.
- 5 -