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Tactical Group Inc. v. Lucas12/29/1995
G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). Lucas testified that, on September 20, 1993, he sustained a back injury when he fell while carrying lockers down a flight of stairs. The commission, in its role as fact finder, reviewed the witnesses' testimony and the medical records, and resolved any inconsistencies in favor of Lucas. Lucas' testimony is consistent with the history he reported to Dr. Frederick Fox, his treating physician. Lucas' testimony, the medical records, and McDole's testimony (that Lucas notified him of the accident several days after it occurred) provide credible evidence to support the commission's finding that Lucas sustained a compensable back injury on September 20, 1993. Thus, we are bound by this finding on appeal.
THE FUND'S CROSS-APPEAL: RECORD NO. 1635-95-3
I. and II. Pence's Notice Defense
The Fund contends that the commission erred in allowing Pence to raise a lack of notice defense, Code § 65.2-600, at the July 27, 1994 hearing because Pence did not list lack of notice as one of its defenses in its answers to interrogatories. The record supports the commission's finding that, at the beginning of the July 1994 hearing, Pence adopted all of Tactical's defenses, which included a lack of notice. Thus, the Fund knew from the beginning of the hearing that Pence intended to rely upon lack of notice as a defense. The record also shows that the deputy commissioner provided the Fund with an adequate opportunity to take further evidence on Pence's defense at the second evidentiary hearing held on January 12, 1995. Because the record shows that Pence's course of action did not result in prejudice to the Fund, we cannot say that the commission abused its discretion in allowing Pence to rely upon the lack of notice as a defense.
Moreover, credible evidence, including the testimony of Lucas and McDole, supports the commission's finding that Pence did not receive timely notice of Lucas' accident as required by Code § 65.2-600. Although McDole testified that he informed Pence's general manager that someone had been injured on a Stafford County job , he did not testify that he specifically notified Pence of Lucas' September 20, 1993 accident on the Spotsylvania County job. When Stephen P. Hawkins, vice president of Pence, was questioned concerning the notice issue, Lucas stipulated that he did not give Pence timely notice of his accident.
Because credible evidence supports the commission's finding that Pence did not receive timely notice of Lucas' accident as required by Code § 65.2-600, the commission did not err in dismissing Pence as a party defendant.
III. Lucas' Failure to Appear at Second Hearing
The Fund also contends that the commission erred in not dismissing Lucas' application because he failed to appear at the second hearing on January 12, 1995. The record shows that the commission informed all parties that the purpose of the second hearing was to resolve the Show Cause Order against Tactical and to take additional evidence on the notice issue.
Lucas stipulated at the first hearing that he did not give timely notice of his accident to Pence. Thus, because Lucas had no further evidence to offer on the notice issue and the show cause issue did not concern him, Lucas' counsel informed the deputy commissioner that he and Lucas would not appear at the second hearing unless ordered to do so. If the Fund wanted to take additional evidence from Lucas concerning the notice issue, the Fund could have ensured Lucas' attendance at the second hearing. The Fund
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