Opinion
Record No. 0459-92-1
December 15, 1992
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
George J. Dancigers (Heilig, McKenry, Fraim Lollar, on brief), for appellants.
Robert J. Macbeth, Jr. (Rutter Montagna, on brief), for appellee.
Present: Judges Baker, Barrow and Bray.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
This appeal challenges the decision of the Workers' Compensation Commission that an employee had a reasonable excuse for her failure to provide timely written notice of her injury to her employer and that the employer was not prejudiced by this delay. We hold that sufficient credible evidence supports the commission's findings and affirm the decision.
Every employee injured on the job must give written notice of such injury to the employer within thirty days of an accident. Code § 65.1-85 (now Code § 65.2-600). If the employee fails to report the accident, he or she is not entitled to compensation or medical benefits "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 § 65.1-85 (now Code § 65.2-600). The burden of showing a reasonable excuse for delay in giving notice is on the employee, and the burden of showing prejudice caused by the delay is on the employer. Westmoreland Coal Co. v. Coffey, 13 Va. App. 446, 448, 412 S.E.2d 209, 211 (1991). 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). 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, 13 Va. App. at 449, 412 S.E.2d at 211.
The facts underlying the commission's decision are fully described in its opinion. The commission found that, although the employee did not provide a written report of her injury to her employer within the statutory time period, she "had a basis for belief that her injury was trivial, in that she had immediate pain upon injury but that it [the injured area] was only sore in ensuing days." The commission also found that the employer "has not demonstrated any prejudice which resulted from the delay." Based on these findings, the commission found that the employee had given a reasonable excuse for her delay in providing written notice of the injury, and that this delay did not prejudice the employer.
We hold that these findings of the commission are supported by credible evidence and are, therefore, binding on this Court. Code § 65.1-98 (now Code § 65.2-706). See, e.g., James v. Capitol Steel Constr. Co, 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). Accordingly, the decision of the Workers' Compensation Commission is affirmed.
Affirmed.