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Grayson Mitchell Inc. v. Hamlette9/23/1997
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Grayson Mitchell, Inc. and Twin City Fire Insurance Company (collectively "appellant") appeal an order of the Workers' Compensation Commission (commission) awarding temporary total disability benefits to Ernest John Hamlette, Jr. (claimant). Appellant contends that the commission erred when it awarded temporary total disability benefits to claimant because (1) claimant failed to give written notice of his injury in accordance with Code § 65.2-600 and (2) the evidence was insufficient to support the findings that claimant's disability was total or that he made a reasonable effort to market his residual capacity to work. For the reasons that follow, we affirm in part and reverse in part.
I. NOTICE UNDER CODE § 65.2-600
Under Code § 65.2-600(A) and (D), an injured employee is required to give his or her employer a "written notice of the accident" "within thirty days after the occurrence of the accident . . . ." The written notice must state "the name and address of the employee, the time and place of the accident, and the nature and cause of the accident and the injury ." Code § 65.2-600(B) (emphasis added).
Claimant, a truck driver, was involved in a traffic accident in North Carolina. During and after the accident, claimant "felt a pain around back." After being informed by a paramedic at the scene that he had pulled a muscle in his back, he chose not to go to the hospital. Claimant immediately reported the accident to appellant by using a device in his truck that communicated with appellant by satellite. Claimant also wrote a note at the accident scene which included the details of the accident and the fact that he pulled a "muscle in lower back." It is not disputed that this note was retrieved from the truck by claimant's supervisor the following day. The issue is whether a report of a pulled muscle in the lower back area after a traffic accident is sufficient notice of what is later diagnosed to be a more serious back injury .
We hold that claimant's description of his back injury was sufficient to provide appellant with notice of the "nature" of his injury under Code § 65.2-600. The purpose of the notice requirement of Code § 65.2-600 is to enable the employer to provide immediate medical treatment to the injured employee in order to reduce the seriousness of the injury and to investigate the employee's claim and prepare its defense. See Winston v. City of Richmond, 196 Va. 403, 408, 83 S.E.2d 728, 731 (1954) (citing Whitmyre v. International Bus. Mach. Corp., 267 N.Y. 28, 30, 195 N.E. 539, 540 (1935)). We have held that the failure to give any notice of an injury is reasonably excused when the employee first regards the injury as trivial but later learns through medical diagnoses that it is serious. See Westmoreland Coal Co. v. Coffey, 13 Va. App. 446, 449, 412 S.E.2d 209, 211 (1991) (citing Lucas v. Research Analysis Corp., 209 Va. 583, 586, 166 S.E.2d 294, 296 (1969)). In a situation where an employee's failure to give notice is reasonably excused, the employer prevails if he can show that he was prejudiced. See id. at 448, 412 S.E.2d at 211; Code § 65.2-600(D). In the case before us, the commission found the notice to be "timely and proper" and went on to find that there was no prejudice to appellant. It follows logically that, if failing to give notice of an injury is reasonably excused because the employee believed that the injury was trivial, then giving timely notice of an injury that inadvertently minimizes its seriousness should also satisfy the purposes of Code § 65.2-600.
In this case, appellant's description of his back injury as a "pulled muscle" satisfied the pur
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