COURT OF APPEALS OF VIRGINIA

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COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Frank and Clements

ELIZABETH C. SMITH
MEMORANDUM OPINION*
v. Record No. 0029-01-3 PER CURIAM
MAY 15, 2001
AUGUSTA MEDICAL CENTER AND
VIRGINIA INSURANCE RECIPROCAL

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Frankie C. Coyner, on brief), for appellant.

(Cathleen P. Welsh; Wharton, Aldhizer &
Weaver, P.L.C., on brief), for appellees.

Elizabeth C. Smith (claimant) contends that the Workers'
Compensation Commission erred in finding that her claim was
barred because she failed to give Augusta Medical Center
(employer) timely notice of her September 20, 1999 injury by
accident, as required by Code 65.2-600(D). 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. See Rule 5A:27.
Code 65.2-600(D) requires that an employee 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 found that claimant's delay in notifying the
employer was not reasonable. In its opinion, the commission
made the following findings:
The injury by accident occurred on
September 20, 1999. The claimant testified
to knowing on November 3, 1999, that her
back condition arose from the work-related
accident. She stated that: "I knew exactly
the day and exactly the place that I had
caused this disk to rupture. Absolutely. I
had no question in my mind." (Tr. at 15).
If the claimant had reported the accident
shortly after this alleged knowledge, notice
would have been given within seven weeks of
the incident, albeit after the 30-day
requirement. She did not inform the
employer of the accidental injury until
November 29, 1999, three and one-half weeks
later. After the accident, the claimant
attended multiple medical examinations,
underwent x-rays and an MRI, participated in
physical therapy, was restricted to bed
rest, received medications and injections,
and discussed surgery. Thus, we are not
persuaded that her injury was trivial. In
fact, the claimant testified that on
September 20, 1999, her back "hurt a lot"
and that she thought that she suffered "a
good back strain." Lastly, while she
explained her belief that she only had 72
hours to report an accident, ignorance of
the law is not a reasonable excuse.
In reviewing the commission's determination as to whether a
claimant has proven a reasonable excuse under Code 65.2-600
(formerly 65.1-85), the principal issue is whether evidence
was offered to the satisfaction of the commission. See Lucas,
209 Va. at 586, 166 S.E.2d at 296.
The commission found that claimant's excuse for not
reporting her injury to employer until approximately seventy
days after it occurred was not reasonable. The commission's
findings are supported by claimant's testimony and the medical
records, which established that claimant did not report her
injury even after she unequivocally knew or should have known on
November 3, 1999 that it was not trivial and that it was related
to the September 20, 1999 incident. Moreover, she testified
that at the time of the incident her back pain was
"excruciating" and she believed that she had suffered a "good
back strain."
In its role as fact finder, the commission was entitled to
give little weight to claimant's testimony that she failed to
give timely notice because she believed that she only had
seventy-two hours to do so. Claimant, a nurse anesthetist,
testified that she did not know where she got this idea. In
addition, Susan Krzastek, employer's Vice President of Human
Resources, testified that employer informed its employees
through the use of postings and an employee handbook of the
thirty-day notice requirement.
Based upon this record, we cannot find as a matter of law
that claimant's evidence sustained her burden of proving a
reasonable excuse for her delay in giving timely notice, as
required under Code 65.2-600(D).
Because we affirm the commission's finding that claimant
did not prove a reasonable excuse for her delay in giving
notice, we need not address the issue of whether employer proved
prejudice.
For these reasons, we affirm the commission's decision.
Affirmed.
* Pursuant to Code 17.1-413, this opinion is not
designated for publication.

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