Adams Construction Co. v. Clarence Ray Bousman

• Court: Court of Appeals of Virginia
• Decided: July 29, 1997
• Docket: 0642973
• Status: Unpublished

Opinion

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

2 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

3 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.