Goodyear Tire, etc. v. Willie R. Moore

• Court: Court of Appeals of Virginia
• Decided: October 1, 1996
• Docket: 0946963
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Willis

GOODYEAR TIRE & RUBBER COMPANY AND TRAVELERS INDEMNITY COMPANY OF ILLINOIS MEMORANDUM OPINION * PER CURIAM v. Record No. 0946-96-3 OCTOBER 1, 1996

WILLIE R. MOORE

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION (Martha White Medley; Daniel, Vaughan, Medley & Smitherman, on brief), for appellants.

(Stephen G. Bass; Carter, Craig, Bass, Blair & Kushner, on brief), for appellee.

Goodyear Tire & Rubber Company and its insurer (hereinafter

collectively referred to as "employer") contend that the Workers'

Compensation Commission erred in finding that (1) Willie R. Moore

proved a reasonable excuse for failing to give his employer

timely notice of his June 10, 1995 injury by accident; and (2)

the employer failed to prove it suffered prejudice due to Moore's

late notice. Upon reviewing the record and the 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

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. 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

"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).

The evidence proved that Moore sustained a sting or burn on

the left side "down in [his] privates" when he pulled a cable

over a tree as part of his job duties. Moore thought the burning

sensation was caused by sweat irritating his groin. Based upon

credible evidence in the record, the commission made the

following findings: [Moore] believed that the groin discomfort was a dermatological problem. He treated it with rubbing alcohol. On July 16, 1995, he first noticed a protuberance. He then notified the plant nurse. Notice was provided within thirty-seven days of the accident, as soon as [Moore] learned that he had sustained a hernia. . . . [Moore] was successfully treated and operated upon on August 3, 1995, more than two weeks after he reported the accident.

The commission also found that Moore offered a reasonable excuse

2 for failing to provide written notice in accordance with Code

§ 65.2-600 and that the 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 296. The record contains

credible evidence from which the commission could reasonably find

that Moore'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, the employer presented no evidence to show that

the delay of seven days beyond the thirty-day notice period

increased the severity of Moore'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

Moore'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 these reasons, we affirm the commission's decision.

Affirmed.