Opinion
Record No. 1605-94-1
Decided: March 28, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
John J. Beall, Jr., Senior Assistant Attorney General (James S. Gilmore, III, Attorney General; Julia D. Tye, Assistant Attorney General, on brief), for appellant.
Michelle ReDavid Rack (Huff, Poole Mahoney, P.C., on brief), for appellees Time Warner, Inc. and Aetna Casualty Surety Co. No brief or argument for appellee Michael B. Shipp.
Present: Judges Barrow, Koontz and Elder
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
In this workers' compensation case, the Uninsured Employer's Fund (Fund) appeals from the commission's decision to require the Fund, rather than Time Warner, Inc., and its insurance carrier, Aetna Casualty Surety Co., to compensate Michael B. Shipp (claimant) for injuries received. The Fund argues that the commission erred in finding that claimant did not have a reasonable excuse for failing to notify Time Warner of his work-related accident within the statutorily required thirty days. Because credible evidence supports the commission's findings, we affirm its decision.
Claimant, who worked as a cable installer for Kylo Cable, was injured on August 13, 1991, in a work-related accident when a safety belt's metal hook struck him in the jaw. Claimant knew that Kylo Cable had a contract with Time Warner, his statutory employer, which held a cable franchise to install cable television in the area where claimant worked. Claimant testified that he was aware of the relationship between Kylo Cable and Time Warner, that he carried a work identification card with Time Warner's name on it, and that he had met with Time Warner personnel on several occasions.
When he was injured, claimant notified Kylo Cable but did not notify Time Warner, despite the fact that Code Sec. 65.2-600(A) requires an employee to notify his employer of a work-related injury. On August 5, 1993, almost two years after his accident, claimant filed a claim for benefits, which listed Kylo Cable as claimant's employer and listed American Reliance as the insurance carrier. After it was determined that Kylo Cable was an uninsured employer, the Fund (the statutory guarantor) was made a party; it was thereafter learned that Time Warner was the statutory employer. The Fund moved on October 12, 1993, to add Time Warner as a party, more than two years after the accident.
The deputy commissioner found Time Warner to be claimant's statutory employer and found that claimant was entitled to an award for his compensable injury. The deputy commissioner ruled, however, that timely notice was not given to Time Warner, and that the Fund was liable. The commission affirmed the deputy commissioner's decision on July 21, 1994.
The critical issue in this case is whether the evidence supports the commission's finding that claimant lacked a reasonable excuse for failing to notify Time Warner within thirty days of his work-related injury. We hold that there was sufficient evidence to find that claimant lacked a reasonable excuse. "On appeal, we view the evidence in the light most favorable to the party prevailing below." Batal Builders, Inc. v. Hi-Tech Concrete, Inc., 18 Va. App. 401, 404, 444 S.E.2d 555, 557 (1994). "Findings of fact made by the commission are binding on this Court if they are supported by credible evidence." Id. (citing Code Sec. 65.2-706; Jules Hairstylists, Inc. v. Galanes, 1 Va. App. 64, 68, 334 S.E.2d 592, 595 (1985)).
As this Court has stated, "it is well settled that when a claim is made against both actual and statutory employers, notice to each employer is required pursuant to Code Sec. 65.2-600." Batal Builders, 18 Va. App. at 404, 444 S.E.2d at 557; see also Race Fork Coal Co. v. Turner, 237 Va. 639, 644, 379 S.E.2d 341, 343-44 (1989). In this case, although claimant knew of the injury when it occurred, his statutory employer, Time Warner, was not notified of the injury until approximately two years later. See Westmoreland Coal Co. v. Coffey, 13 Va. App. 446, 412 S.E.2d 209 (1991). Credible evidence presented at the evidentiary hearing before the deputy commissioner proved that claimant did not have a reasonable excuse for failing to notify Time Warner of his injury. See C. Richard Bogese Builder, Inc. v. Robertson, 17 Va. App. 700, 706, 440 S.E.2d 622, 626 (1994).
Claimant cannot show that he was unaware of the relationship between Kylo Cable and Time Warner and could not have discovered this relationship within thirty days after his injury. See Race Fork Coal, 237 Va. at 643-44, 379 S.E.2d at 344 (remanding case for determination of whether claimant could show that he was unaware of relationship to statutory employer and if there was reasonable excuse for not giving notice within thirty day period). There is ample evidence that claimant knew first-hand he was employed not only by Kylo Cable but also by Time Warner.
Although appellant asserts that this case is governed by Batal Builders, there are two key distinctions. First, the claimant in Batal Builders had only eight years of education in El Salvador and did not speak English; and second, in this case, claimant was not expressly told by Kylo Cable's employees that notice to Kylo Cable was all claimant had to do to be covered. The commission's holding in Batal Builders also underscores the importance of our standard of review of commission decisions. In Batal Builders, credible evidence supported the commission's findings of fact that there was a reasonable excuse for untimely notification; in this case, credible evidence supports the commission's finding to the contrary. Where this is true, we must affirm the commission's decision.
We need not reach the issue of whether Time Warner was prejudiced by the lack of notice. For these reasons, we affirm the commission's award.
Affirmed.