Adams Construction Co. v. Clarence Ray Bousman ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
ADAMS CONSTRUCTION COMPANY AND
TRANSPORTATION INSURANCE COMPANY
MEMORANDUM OPINION *
v. Record No. 0642-97-3 PER CURIAM
JULY 29, 1997
CLARENCE RAY BOUSMAN
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Roya Palmer; Law Offices of Richard A.
Hobson, on brief), for appellants.
(Randy V. Cargill; Magee, Foster, Goldstein &
Sayers, on brief), for appellee.
Adams Construction Company and its insurer (hereinafter
collectively referred to as "employer") appeal a decision of the
Workers' Compensation Commission awarding compensation benefits
to Clarence Ray Bousman. Employer contends that the commission
erred in finding that (1) Bousman proved a reasonable excuse for
failing to give timely notice of his March 17, 1995 injury by
accident to employer; and (2) employer failed to prove it
suffered prejudice due to Bousman's late notice. Finding no
error, we affirm the commission's decision.
Code § 65.2-600(D) 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
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
satisfied that the employer has not been prejudiced thereby." In
applying the substantially similar predecessor statute, the
Supreme Court ruled that "the 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).
Credible evidence proved that on March 17, 1995, while
operating a front-end loader on a job site, Bousman struck a dump
truck, which had backed into his path unobserved. Bousman
testified that his head hit the glass enclosure and he became
disoriented. He reported the incident to the employer's safety
director. The safety director inspected the front-end loader and
the truck for damage. However, the safety director testified
that Bousman did not report an injury.
Bousman also reported the accident to his supervisor on the
same day it occurred. Although the supervisor acknowledged
receiving this notice, he testified that Bousman did not report
any injury. Bousman testified that while he experienced a stiff
neck a day after the accident, he did not attribute it or the
onset of shoulder discomfort a short while later to the accident.
Beginning April 16, 1995, Bousman sought medical treatment
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for left shoulder pain. He received follow-up care for his
shoulder condition on April 21 and 24, 1995 and May 7, 1995.
Bousman continued to work until May 10, 1995, when a co-worker
pulled him from the floor onto a platform. Bousman felt a pull
in his neck and sought emergency medical treatment. He was
treated for left shoulder injury. On May 12, 1995, Bousman
reported the March 17, 1995 accident to Dr. B. Titus Allen, his
treating physician, who related Bousman's symptoms to that
accident. On May 12, 1995, Bousman and his wife informed
employer of Dr. Allen's findings and opinion.
Based upon this record, the commission found that Bousman
offered a reasonable excuse for failing to provide written notice
in accordance with Code § 65.2-600 and that employer did not
prove prejudice from the delay.
In reviewing decisions of the commission with respect to
reasonable excuse under Code § 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, 209 Va. at 586, 166 S.E.2d at 295. The record contains
credible evidence from which the commission could reasonably find
that Bousman's excuse was reasonable. Thus, we may not disturb
those findings on appeal. See James v. Capitol Steel Constr.
Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
Moreover, employer presented no evidence to show that the
twenty-six day delay beyond the thirty-day notice period
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increased the severity of Bousman's injury, extended his recovery
time, or increased his absence from work. Thus, the commission's
finding that the employer suffered no prejudice as a result of
Bousman's late notice is binding and conclusive upon this Court
on appeal. See Tomko v. Michael's Plastering Co., 210 Va. 697,
699, 173 S.E.2d 833, 835 (1970).
For the reasons stated, we affirm the commission's decision.
Affirmed.
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