Fairfax Co. School Board v. Louise S. Rostker ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
FAIRFAX COUNTY SCHOOL BOARD
MEMORANDUM OPINION *
v. Record No. 3092-96-4 PER CURIAM
JUNE 10, 1997
LOUISE S. ROSTKER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Michael N. Salveson; Hunton & Williams, on
briefs), for appellant.
(James F. Green; Ashcraft & Gerel, on brief),
for appellee.
Fairfax County School Board (employer) contends that the
Workers' Compensation Commission (commission) erred in finding
that Louise S. Rostker (claimant) proved a reasonable excuse for
failing to give her employer timely notice of her October 10,
1995 injury by accident. Upon reviewing the record and briefs of
the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision. Rule
5A:27.
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
satisfied that the employer has not been prejudiced thereby." In
applying the statute, the principles are well established that
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
"[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 found 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 testified that,
notwithstanding the pain and swelling, she
thought her injury was trivial. The Deputy
Commissioner found the claimant's testimony
credible. We agree and further note that the
claimant did not miss any time from work
after the accident and that Dr. Lofton's
[sic] initial treatment corroborates the
claimant's testimony that the injury was not
severe. When Dr. Lofton [sic] recommended a
bone scan and more aggressive treatment, the
claimant realized her injury was more serious
and she notified her employer. The claimant
has presented a reasonable excuse and there
1
was no evidence of prejudice.
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
1
Employer does not challenge the commission's finding that
it failed to prove it suffered prejudice as a result of
claimant's delay in giving notice.
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evidence is offered to the satisfaction of the commission. See
Lucas, 209 Va. at 586, 166 S.E.2d at 296.
On October 10, 1995, claimant, who worked for employer as a
special education teacher, injured her right foot, when a student
accidentally knocked over a chair, which landed on the top of
claimant's right foot. Claimant continued to work, believing
that her pain "would pass." When the swelling and pain did not
resolve, claimant sought medical treatment from Dr. Charles
Lefton on November 2, 1995. Dr. Lefton took x-rays of claimant's
foot, which she believed were normal. Claimant understood from
Dr. Lefton that she had a bruise, which would go away. Dr.
Lefton prescribed anti-inflammatory medication. When the
medication did not bring the swelling down, Dr. Lefton injected
claimant's foot. The injection made claimant's condition worse,
and Dr. Lefton then prescribed orthotics for claimant's shoes,
which were also ineffective.
At the end of January 1996, Dr. Lefton recommended that
claimant undergo a bone scan. At that time, claimant panicked
because she thought she might need some "extreme kind of medical
care that might prevent working." Claimant reported the accident
to employer on January 31, 1996. Claimant testified that she did
not report the accident earlier because "[i]t didn't seem
necessary. It seemed trivial. And once a couple of weeks had
passed and other people were aware that I was in pain I was told,
you can't report after 24 hours."
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The February 5, 1996 bone scan revealed probable occult
fractures of the second and third metatarsals. Due to these
results, Dr. Lefton prescribed a boot for claimant to wear on her
foot, similar to a cast. Because claimant was still in pain
after the boot was removed, Dr. Lefton referred claimant to Dr.
Mark Myerson for evaluation. Dr. Myerson returned claimant to
Dr. Lefton's care. On June 19, 1996, claimant started physical
therapy.
The commission found that claimant's excuse was reasonable.
Credible evidence established that she did not immediately report
the accident because she thought her injury was 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 claimant had a
reasonable excuse for not reporting the accident to her employer
earlier, we may not disturb the commission's decision. See James
v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d
487, 488 (1989).
For these reasons, we affirm the commission's decision.
Affirmed.
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