NOTICE
See Employee
Code Sec. 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 "[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).
An employee is not entitled to receive compensation or medical expenses unless the
employee has given the employer written notice of the accident within thirty days, unless
the employee had reasonable excuse or the employer had knowledge of the accident. See Code
Sec. 65.2-600.
Where claimant's statements were vague, at times, internally
inconsistent, and conflicted with the testimony of other employees regarding the
occurrence of an accident, a specific event and notice to the employer of an accident, the
Commission was entitled to find that the claimant had failed to meet his burden of
proof. Joseph
Bertram Packett, III v. Potomac Supply Corporation, Record No.
1752-98-2 (January 19, 1999).
"Notice is reasonably excused if an accident, first
regarded as trivial, is later learned through medical diagnosis to be serious."
Westmoreland Coal Co. v. Coffey, 13 Va. App. 446, 449, 412 S.E.2d 209, 211 (1991).
In Kane Plumbing, Inc. v.
Small, 7 Va. App. 132, 371 S.E.2d 828 (1988),
the Court of Appeals recognized that "'where there was no written
notice but
. . . where a foreman or superior officer had actual knowledge
of the
occurrence of an accident . . . within a reasonable time after the
accident
. . . occurred and no prejudice to the
employer's rights was shown, this was sufficient notice under this provision of the statute.'"
Id. at 138, 371 S.E.2d at 832 (quoting Department of Game and Inland
Fisheries v. Joyce,
147 Va. 89, 97, 136 S.E. 651, 654 (1927)). Claimant reported the
accident to his supervisor, who was an eyewitness to the accident. Therefore, the
notice was timely and served as notice to employer pursuant to Code Sec.
65.2-600.Harman
Ceiling and Partitioning Co. v. Lusk, Record No. 0612-99-3 (July
20,1999). WP
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Mistaken Payments by Carrier After Claimant Notifies
Carrier of Return to Work. On June 5, 1991, claimant suffered a
compensable injury by accident and was paid voluntary payments through the end of 1991,
which, according to claimant, were based on an incorrect average weekly wage. Because of
the disputed average weekly wage amount, the filing of a memorandum of agreement was
deferred. Meanwhile,
claimant was released to return to work on January 1, 1992, and he informed Carrier of his
release soon thereafter. Claimant found employment and began working in March 1992.
Claimant filed an application for hearing in August 1992. Claimant's August 1992
application indicated January 1, 1992 as his return to work date. In an August 1992 letter
to Carrier, claimant also made clear that he sought benefits solely
for the period from June 5, 1991, the date of the accident, through December 31, 1991, the
last day before his release to return to work. Carrier sent claimant a
memorandum of agreement reflecting the correction to the average weekly wage that claimant
demanded. The memorandum of agreement indicated that payments would commence,
retrospectively, on June 13, 1991. However, nothing in Carrier's submission, nor in the
subsequent Commission Award, terminated the award on January 1, 1992. By the end
of October 1993, Carrier realized that claimant had in fact returned to work, and that
nevertheless, it had been paying him benefits, so it filed an application for hearing
seeking a determination that claimant had been over-compensated as a result of an alleged
failure to disclose his return to employment as required by Code Sec. 65.2-712.
The Court of Appeals held that claimant had given carrier notice of his return to
work and that carrier was not entitled to a set-off or credit against
future benefits. Although the purpose of Code Sec. 65.2-712
is to place an affirmative duty on employees to disclose their employment status to an
employer or insurer paying compensation, Magic City Motor Corp. v. Helmick, 10 Va.
App. 10, 12, 390 S.E.2d 1, 2 (1990), this duty exists only "so long as an employee
receives payment of compensation under this title." Code Sec. 65.2-712.
The statute cannot be read to place on employees the duty to notify an employer of
a return to employment subsequent to the period for which the employee seeks benefits.
The employer simply has no stake in the employee's changed circumstances after that
point. Carrier
inexplicably agreed to compensate claimant for a period which extended beyond his return
to work date and for which claimant did not seek compensation. Carrier did so at its peril
because, by that time, it had received notice that claimant had returned to work. Pressure Concrete Construction
Company v. Timothy E. Coburn, Record No. 1111-95-1 (February 13, 1996).
It is deemed sufficient notice "where a foreman
or superior officer had actual knowledge of the occurrence of an accident
or death within a reasonable time after the accident or death occurred and
no prejudice to the employer's rights was shown."
Kane Plumbing, Inc. v. Small, 7 Va. App. 132, 138, 371
S.E.2d 828, 832 (1988) (citation omitted).
Claimant's "job foreman" observed her "fall . . . on
her back side . . . [and] asked her several times . . . if she felt like
she needed . . . medical attention."
Although claimant then responded that "she was fine"
and postponed actual notification of her injury to employer, employer had
knowledge of the accident, and the commission correctly concluded that no
prejudice resulted from delayed reporting. Basic
Construction Company v. Hamilton, Record No.
2844-98-1 (August 17, 1999). WP
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Statutory Employers. An employee of a
subcontractor must give the required notice to a statutory employer to hold the statutory
employer liable under the Act. If the employee can show he did not know of the
relationship between his immediate employer and some third party who was his statutory
employer at the time of the accident and could not reasonably have known of the
relationship in the 30 day period, the employee may introduce such evidence to show there
was a reasonable excuse for not giving notice. Race Fork Coal Co. v. Turner, 237
Va. 639, 379 S.E.2d 341 (1989). Note that § 65.2-600
Notice of accident, provides in part:
A. Every injured employee or his representative shall immediately on the occurrence of
an accident or as soon thereafter as practicable, give or cause to be given to the
employer a written notice of the accident. If notice of accident is not given to
any statutory employer, such statutory employer may be held responsible for initial and
additional awards of compensation rendered by the Commission if (i) he shall have had at
least sixty days' notice of the hearing to ascertain compensability of the accident, and
(ii) the statutory employer was not prejudiced by lack of notice of the accident.
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 did not err in
finding claimant proved a reasonable excuse. Claimant, a registered
nurse, was injured when she moved a heavy patient. She did not
immediately 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. When it became
clear to her that she needed medical treatment, she reported the
incident. She was initially treated in a fashion similar to her
self-treatment regimen. 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. The commission also found there is no evidence that the
delay in reporting the incident 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. Danville
Regional Medical Center v. Pearce, Record No. 1294-99-3 (October
26, 1999). WP
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