Danville Regional Medical Center v. Pearce ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
DANVILLE REGIONAL MEDICAL CENTER
AND
VIRGINIA INSURANCE RECIPROCAL
MEMORANDUM OPINION*
v. Record No. 1294-99-3 PER CURIAM
OCTOBER 26, 1999
CLARE LEA S. PEARCE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Martha White Medley; Daniel, Vaughan,
Medley & Smitherman, P.C., on brief), for
appellants.
No brief for appellee.
Danville Regional Medical Center and its insurer
(hereinafter referred to as "employer") contend that the
Workers' Compensation Commission (commission) erred in finding
that Clare Lea S. Pearce (claimant) proved (1) a reasonable
excuse for failing to give timely notice of her accident as
required by Code § 65.2-600; and (2) that she sustained an
injury by accident arising out of and in the course of her
employment on May 8, 1998. Upon reviewing the record and the
briefs of the parties, we conclude that this appeal is without
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
merit. Accordingly, we summarily affirm the commission's
decision. See Rule 5A:27.
I.
Code § 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."
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).
The commission held that claimant offered a reasonable
excuse for her failure to provide written notice in accordance
with Code § 65.2-600. In its opinion, the commission made the
following findings:
The claimant, a registered nurse, had a
reasonable belief that the problem would
resolve itself if she limited her lifting,
rested, used heat, and took medication.
During this period, the claimant was able to
continue working, but did not lift patients.
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However, once she began to experience a
different type of pain and numbness that
went into her right femur, she immediately
reported the accident in order to seek
medical treatment. We note that Dr. [Jacob]
Moll treated the claimant in a similar
manner as she treated herself. He found her
able to continue to perform her regular
duties, with the only difference being that
he provided the claimant with physical
therapy. . . . We note that the claimant
did report the incident within 36 days upon
immediately noting the need for medical
attention. We find that there has been no
prejudice to the employer in that there is
no evidence that different treatment would
have been prescribed than what the claimant
was currently doing on her own initiative.
We also find there is no evidence that this
in any way impeded the employer's ability to
investigate the claim. The failure to
timely report did not affect the claimant's
ability to work or cause her to experience
any disability from work. 1
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.
The commission found that claimant's excuse was reasonable.
Credible evidence, including claimant's testimony and the
medical records, support that finding. Claimant's testimony and
the medical records established that she did not immediately
1
Employer did not challenge the commission's finding that
it was not prejudiced by claimant's untimely notice.
Accordingly, that finding is binding on appeal.
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report the accident because she thought her injury was not
severe enough to warrant seeking medical treatment and that it
would resolve on its own through self-administered treatment.
Accordingly, we may not disturb the commission's decision. See
James v. Capitol Steet Constr. Co., 8 Va. App. 512, 515, 382
S.E.2d 487, 488 (1989).
II.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "In
order to carry [the] burden of proving an 'injury by accident,' a
claimant must prove that the cause of [the] injury was an
identifiable incident or sudden precipitating event and that it
resulted in an obvious sudden mechanical or structural change in
the body." Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858,
865 (1989).
Claimant's uncontroverted testimony was that on May 8, 1998,
at approximately 1:00 p.m., she was working for employer as a
radiology nurse. At that time, she experienced "discomfort" in
her lower right back in the sacroiliac area, as she and a
co-worker moved a patient, who weighed in excess of 200 pounds.
The pain was not severe enough to take claimant to her knees or to
cause her to cry out. However, she had never felt this type of
pain before.
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Claimant's testimony regarding the accident was corroborated
by her incident report and the history she gave to Dr. Moll on
June 12, 1998. On that date, claimant told Dr. Moll that she
experienced "acute severe pain in the R lower back when lifting a
[patient] 4 wks ago."
Claimant's testimony, along with the incident report and Dr.
Moll's medical history, constitute credible evidence to support
the commission's finding that claimant proved she sustained an
identifiable incident that resulted in a sudden mechanical or
structural change in her body on May 8, 1998. Accordingly, we may
not disturb the commission's finding on appeal. See James, 8 Va.
App. at 515, 382 S.E.2d at 488.
For these reasons, we affirm the commission's decision.
Affirmed.
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