COURT OF APPEALS OF VIRGINIA
Present: Judges Koontz, Bray and Senior Judge Hodges
HILLARD HEGGIE THARP
v. Record No. 2494-94-3 MEMORANDUM OPINION *
PER CURIAM
WILLIAM A. HAZEL CONSTRUCTION MAY 23, 1995
AND
ROYAL INSURANCE COMPANY OF AMERICA
FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
(James B. Feinman, on briefs), for appellant.
(Edward H. Grove, III; Brault, Palmer, Grove,
Zimmerman, White & Mims, on brief), for appellees.
Hillard Heggie Tharp (claimant) contends that the Workers'
Compensation Commission erred in finding that (1) his claim was
barred due to his failure to give timely notice to William A.
Hazel Construction ("employer") of his alleged May 10, 1993
accident; and (2) the employer was not required to show that it
was prejudiced due to an incomplete or defective 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 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, "[n]o defect or
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
inaccuracy in the notice shall be a bar to compensation unless
the employer shall prove that his interest was prejudiced thereby
and then only to such extent as the prejudice." Code
§ 65.2-200(E). Unless we can say as a matter of law that the
claimant's evidence sustained his burden of proving that the
employer received timely notice of the claimant's alleged May 10,
1993 accident, 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).
In finding that the claimant failed to meet his burden of
proving notice, the commission found as follows:
The claimant admits that he did not give
timely notice of an accident on May 10, 1993
or even that his back condition at that time
was work-related. His only explanation for
failure to give timely notice is that he was
not asked, that the employer did not ask for
details about his injury and its cause.
However, the employer is under no obligation
to investigate an accident that has not been
reported and the burden is on the employee to
give notice of one, so the employer's failure
to ask for details would not justify the
claimant's failure to report an accident in
this case. Moreover, the claimant's
testimony that he was not asked about the
cause of his injury was effectively rebutted
by Townsend and Sutherland, and we find that
notice was not given until after July 13,
1993 and the late notice was unjustified. It
is irrelevant that the employer has shown no
prejudice as a result of the late notice,
since that burden attaches only where the
late notice was otherwise justified or where
incomplete or defective notice of an accident
was given. Code Ann. § 65.2-600 (D-E).
The claimant admitted that he did not give notice of a work-
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related accident to the employer until July 13, 1993, after he
retained counsel. The claimant testified that, on May 10, 1993,
he told his foreman, Townsend, that "my back was hurting and I
was in bad shape." There is no evidence that the claimant told
Townsend that he slipped as he descended from a construction
equipment vehicle or that he gave Townsend any information
concerning a work-related accident. When the employer's
personnel manager, Sutherland, called the claimant on May 26,
1993, to ask why the claimant was not at work, the claimant did
not tell Sutherland that he had sustained a work accident or a
work-related injury. Townsend and Sutherland testified that the
claimant told them his back was hurting, but that, despite being
asked, he never stated that this condition was due to a work-
related accident. As fact finder, the commission was entitled to
accept the testimony of Townsend and Sutherland to rebut the
claimant's contention that he was not asked about the cause of
his injury.
Based upon this evidence, we cannot say as a matter of law
that the commission erred in finding that the claimant failed to
give timely notice of his alleged accident as required by Code
§ 65.2-600, and that the late notice was unjustified. The
commission was also correct in holding that the employer was not
required to show prejudice. The claimant's evidence did not show
incomplete or defective notice, rather it showed that the
claimant did not report any information concerning his alleged
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May 10, 1993 accident to the employer within thirty days of its
occurrence.
For these reasons, we affirm the commission's decision.
Affirmed.
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