Harman Ceiling and Partitioning Co. v. Lusk

• Court: Court of Appeals of Virginia
• Decided: July 20, 1999
• Docket: 0612993
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Willis

HARMAN CEILING AND PARTITIONING COMPANY, INC. AND VIRGINIA CONTRACTORS GROUP SELF-INSURANCE ASSOCIATION MEMORANDUM OPINION* v. Record No. 0612-99-3 PER CURIAM JULY 20, 1999 MICHAEL L. LUSK

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(William H. Fralin, Jr.; Jolly, Place, Fralin & Prillaman, P.C., on brief), for appellants.

No brief for appellee.

Harman Ceiling and Partitioning Company, Inc. and its

insurer (hereinafter referred to as "employer") contend that the

Workers' Compensation Commission erred in finding that

Michael L. Lusk proved that (1) he gave employer notice of his

December 5, 1995 injury by accident as required by Code

§ 65.2-600; and (2) his medical treatment was causally related

to his December 5, 1995 injury by accident. Upon reviewing the

record and appellants' opening brief, we conclude that this

appeal is without merit. Accordingly, we summarily affirm the

commission's decision. See Rule 5A:27.

*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. I. Notice

In Kane Plumbing, Inc. v. Small, 7 Va. App. 132, 371 S.E.2d

828 (1988), we 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)).

Lusk testified without contradiction that his supervisor,

Elmer Smith, was "right beside" him at the time of the December

5, 1995 accident. Lusk testified that he immediately reported

the accident to Smith. Smith said he would report the accident

and told Lusk "to take it easy." The fact that Lusk asked Smith

not to report the accident does not equate with a failure to

give notice of the accident. The commission's factual findings

that Lusk reported the accident to his supervisor, who was an

eyewitness to the accident, are supported by credible evidence.

Therefore, the notice to Smith was timely and served as notice

to employer pursuant to Code § 65.2-600.

II. Causation

On appeal, we view the evidence in the light most favorable

to the prevailing party below. See R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "The

- 2 - actual determination of causation is a factual finding that will

not be disturbed on appeal if there is credible evidence to

support the finding." Ingersoll-Rand Co. v. Musick, 7 Va. App.

684, 688, 376 S.E.2d 814, 817 (1989).

Dr. Scott Hayes recorded a history that Lusk's pain after

the December 5, 1995 accident was of abrupt onset, that it

affected Lusk's lumbar spine, and that it had a radicular

quality. Lusk testified that although he had suffered from

previous back pain, the pain he felt after the December 5, 1995

accident was much more intense than anything he had ever

experienced before. Dr. Laurence I. Kleiner, a neurosurgeon,

diagnosed a disc herniation at the L3-4 level. Lusk testified

that although some of his pain abated after the surgery, he

still suffers from back symptoms and has not fully recovered.

The commission found that the medical treatment received by

Lusk after the December 5, 1995 accident was causally related to

that accident. Lusk's testimony and the medical records provide

credible evidence to support the commission's finding.

Therefore, that finding is binding upon us on appeal.

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

Affirmed.

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