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Wheeler v. Roanoke Memorial Hospital and Pennsylvania Manufacturers'' Association Insurance Co.3/18/1997
MEMORANDUM OPINION
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Sandra A. Wheeler (claimant) contends that the Workers' Compensation Commission (commission) erred in finding that (1) the notice requirements contained in Code § 65.2-600 applied to her claim for a back injury arising out of her August 17, 1995 compensable injury by accident; (2) she did not provide a reasonable excuse for her failure to give timely notice of her back injury to Roanoke Memorial Hospital (employer); and (3) employer was not required to show that it was prejudiced by claimant's failure to give timely notice of her back injury. 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.
I.
On August 17, 1995, claimant tripped and fell at work, sustaining a right ankle fracture. Employer accepted the ankle fracture as compensable. Thereafter, the parties executed a memorandum of agreement with respect to the ankle fracture. On January 23, 1996, the commission entered an award pursuant to the memorandum of agreement.
Claimant testified that at the time of her accident, she also felt immediate low back pain. However, she did not report her back pain to any physician until December 1995. In addition, she did not notify employer of her back injury until she filed a change in condition application for a back injury on February 28, 1996, six months after her accident and two and one-half months after she had undergone back surgery.
"'The "change in condition" which justifies reopening and modification is ordinarily a change, for better or worse, in claimant's physical condition. This change may take such form as progression, deterioration, or aggravation of the compensable condition. . . .'" Board of Supervisors v. Martin, 3 Va. App. 139, 141, 348 S.E.2d 540, 541 (1986) (quoting Leonard v. Arnold, 218 Va. 210, 214, 237 S.E.2d 97, 99 (1977) (other citation omitted)).
The commission correctly held that claimant's back injury was not a change in condition. The evidence established that claimant's back injury existed before the commission's award for compensation and medical expenses related to claimant's compensable ankle fracture. The back injury did not arise after the award as a progression, deterioration, or aggravation of claimant's compensable ankle fracture. Moreover, no evidence showed that claimant's back injury was a compensable consequence of the ankle fracture. Rather, the evidence established that the back injury was a separate and distinct injury, which occurred immediately upon the happening of the accident. Accordingly, the commission did not err in finding that the notice provisions contained in Code § 65.2-600 applied to claimant's back injury.
II.
Code § 65.2-600 prohibits an employee from receiving compensation or medical benefits unless the employee has given the employer written notice of the accident within thirty days of its occurrence. The notice must state the name and address of the employee, the time and place of the accident, the nature and cause of the accident, and the injury. Id. A claimant's failure to give timely notice is not a bar to an award of compensation and medical benefits if the claimant shows a reasonable excuse to the satisfaction of the commission for not giving such notice and the commission is satisfied that the employer has not been prejudiced thereby. Id.
"The employee [bears] the burden of proving a reasonable excuse for failing to give timely notice of any injury." Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 896, 407 S.E.2d 32, 36 (199
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