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Wheeler v. Roanoke Memorial Hospital and Pennsylvania Manufacturers'' Association Insurance Co.3/18/1997
1). Unless we can say as a matter of law that claimant's evidence sustained her burden of proof, the commission's findings are binding and conclusive upon us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
Claimant testified that she did not give timely notice of her back injury to employer because she and her physician focused on her more painful ankle injury. In addition, she stated that she did not realize that the back injury was related to her fall until December 1995 when her physician took her off her crutches, and she was uncertain as to whether the back injury was the result of the fall or of a prior back condition.
The commission did not find these explanations satisfactory to excuse claimant's failure to give timely notice pursuant to Code § 65.2-600. In so ruling, the commission found as follows:
"The claimant testified that she was aware of low back pain immediately after the fall. If so, there was no reason that this complaint could not have been made known to her employer and the treating physicians at that time, or certainly within 30 days of the occurrence. Instead, no complaint was made for three and one-half months after the fall. This is not a defect or inaccuracy in her notice of accident to the employer, as argued by counsel for the claimant, but rather is an omission. Moreover, it is an omission which is not satisfactorily explained . . . ."
Based upon this record, we cannot say as a matter of law that claimant's evidence sustained her burden of proving that she had a reasonable excuse for failing to give timely notice of her back injury to employer as required by Code § 65.2-600.
III.
The burden of proving prejudice caused by a claimant's delay in giving notice does not shift to the employer unless the claimant has established a reasonable excuse for the delay to the satisfaction of the commission. Lucas v. Research Analysis Corp., 209 Va. 583, 586, 166 S.E.2d 294, 296 (1969); Maryland Cas. Co. v. Robinson, 149 Va. 307, 311, 141 S.E. 225, 226 (1928). Because claimant did not establish a reasonable excuse for failing to give employer notice of her back injury within thirty days of its occurrence, the commission did not err in not requiring employer to show prejudice.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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