Opinion
Record No. 2364-93-4
Decided: May 10, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
(Peter C. Manson, Jr.; Taylor Walker, on brief), for appellants.
(Lawrence J. Pascal; Ashcraft Gerel, on brief), for appellee.
Present: Judges Benton, Coleman and Willis
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Trump, Inc. and its insurer (collectively referred to herein as "employer") contend that the Workers' Compensation Commission erred in finding that Jim Henry Lee provided a reasonable excuse for his failure to give timely notice of his June 8, 1992 industrial accident. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the commission's decision. Rule 5A:27.
Code Sec. 65.2-600 requires an employee to give written notice of an injury by accident within thirty days of the 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." "The burden of showing a reasonable excuse for delay in giving notice is on the employee; on the other hand, the burden of showing prejudice caused by the delay is upon the employer." Westmoreland Coal Co. v. Coffey, 13 Va. App. 446, 448, 412 S.E.2d 209, 211 (1991).
The commission found that Lee offered a reasonable excuse for his failure to provide written notice in accordance with Code Sec. 65.2-600. In its opinion, the commission made the following findings: "Claimant was able to continue working and did not require medical treatment for a period of some five weeks post-injury. He acknowledged continuing intermittent symptoms during this time which were partially relieved by non-prescription medication (aspirin)." In addition, the commission found that employer was not prejudiced by the delay. Employer does not challenge the latter finding on appeal.
Before the commission, Lee did not dispute that he failed to provide written notice within the required thirty day period following his accident.
In reviewing decisions of the commission with respect to reasonable excuse under Code Sec. 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 v. Research Analysis Corp., 209 Va. 583, 586, 166 S.E.2d 294, 295 (1969).
Lee sustained sudden low back pain while lifting a tire. The pain abated after a few minutes. He was able to work the entire day without further problems. He continued to have a slight nagging pain in his lower back, however, he thought it was just a "common pain" caused by lifting. He did not find it necessary to seek medical treatment, and he continued working without interruption until July 15, 1992. On July 14, 1992, due to his worsening back pain, he notified his supervisor that he had injured his back while lifting a tire on June 8, 1992. He did not discover that he had sustained a herniated disc as a result of the accident until an MRI of his lumbar spine was performed on July 31, 1992. Shortly thereafter, he assisted his employer in filling out the first report of accident.
The commission found that Lee's excuse was reasonable. Credible evidence established that he did not immediately report the accident because the pain diminished and he thought the problem to be trivial. "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 Lee had a reasonable excuse for not reporting the accident to his employer earlier, we may not disturb the commission's decision. See James v. Capitol Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
For the reasons stated, we affirm the commission's decision.
Affirmed.