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Vu v. John Morrell & Co.8/9/2000
compensation claimant had repeated doctor visits for an injury to her elbow, but was now claiming she had a reasonable excuse for failing to give timely notice to his employer. See 1996 SD 89, -6, 551 NW2d at 818-19. We concluded that this evidence supported the finding that claimant had no reasonable excuse for not timely notifying employer. See id., 1996 SD 89, , 551 NW2d at 822. Further, in Loewen, claimant had hurt his back and suffered acute pain while at the workplace. See 1997 SD 2, -4, 557 NW2d at 765. Claimant was aware of the acute nature of the back injury at its occurrence. We held that no timely notice was given to employer based upon this fact. See id., 1997 SD 2, , 557 NW2d at 768. In the present case, Vu's knowledge of the acute pain at the time of her injury and her history of doctor visits support the fact that she had knowledge of the compensable nature of her injury long before reporting it.
[ ] We previously noted in Vaughn, "the purpose of the notice requirement ... is 'to give the employer opportunity to investigate the injury while the facts are accessible.'" 2000 SD 31, , 606 NW2d at 923 (quoting Loewen, 1997 SD 2, , 557 NW2d at 768). For approximately thirty-two months, Vu had back pain, but never advised her employer of her condition. With this lapse of time between the injury and the filing of the claim, I submit that employer has been totally thwarted from having a meaningful opportunity to investigate Vu's claim.
[ ] The record supports Department's findings and I would affirm.
[ ] MILLER, Chief Justice, joins this dissent.
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