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COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Fitzpatrick and Annunziata
Argued at Richmond, Virginia
GRAYSON MITCHELL, INC., ET AL.
Record No. 0269-97-2
ERNEST JOHN HAMLETTE, JR.
MEMORANDUM OPINION * BY
JUDGE LARRY G. ELDER
SEPTEMBER 23, 1997
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Cecil H. Creasey, Jr. (Mark M. Caldwell, III;
Sands, Anderson, Marks & Miller, on brief),
Zenobia J. Peoples for appellee.
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.
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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."
§ 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 [his] 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.
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.
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
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 purposes of the notice
requirement and therefore provided sufficient notice under Code
Although claimant underestimated the seriousness of
his back injury in his note to appellant, his note was sufficient
to enable appellant to begin both medical treatment of claimant's
injured back and an investigation of the accident.
aware that claimant was not a medical professional and that an
examination by a physician would more accurately diagnose the
extent of his back injury.
However, despite the notice provided
by claimant, appellant decided against offering claimant a panel
A subsequent medical examination initiated by
claimant revealed that he had seriously injured his spine during
EXTENT OF CLAIMANT'S DISABILITY
Appellant also contends that the commission erred when it
found that claimant was entitled to total disability benefits
commencing on June 5, 1995.
Appellant argues that the evidence
only established that claimant was partially disabled beginning
on this date and that the record does not support the
commission's finding that claimant reasonably marketed his
remaining capacity to work from June 5 until the date of the
hearing on his claim.
Although we agree that the commission
erroneously awarded claimant total disability benefits from June
5, 1995 until July 31, 1995, we conclude that the evidence was
sufficient to support the finding that claimant has been totally
disabled since August 1, 1995.
The amount of compensation for injuries covered by the
Workers' Compensation Act is set forth in chapter five of the
If the injury has caused the employee to be "totally"
incapacitated, then the amount of compensation is determined by
applying Code § 65.2-500.
If the employee is only "partially"
incapacitated by his or her injury, then the amount of
compensation is determined by applying Code § 65.2-502.
The extent of earning capacity must be
ascertained from the evidence, and such is
not limited to any special class of proof.
All legal facts and circumstances surrounding
the claim should properly be considered and
due weight given them by the Commission.
Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 441, 339
S.E.2d 570, 573 (1986) (citing J. A. Foust Coal Co. v. Messer,
195 Va. 762, 766, 80 S.E.2d 533, 535 (1954)).
An employee who is partially disabled is entitled to
benefits as if his incapacity was total under Code § 65.2-500 if
he proves that he was unable to procure selective employment
after making a reasonable effort to market his remaining capacity
See Washington Metro. Area Transit Auth. v. Harrison,
228 Va. 598, 601, 324 S.E.2d 654, 655-56 (1985) (citing
Pocahontas Fuel Co. v. Barbour, 201 Va. 682, 684, 112 S.E.2d 904,
"What constitutes a reasonable marketing effort
depends upon the facts and circumstances of each case."
Companies (GENESCO) v. Sipe, 16 Va. App. 709, 715, 434 S.E.2d
314, 318 (1993).
[I]n deciding whether a partially disabled
employee has made reasonable effort to find
suitable employment commensurate with his
abilities, the commission should consider
such factors as: (1) the nature and extent
of employee's disability; (2) the employee's
training, age, experience, and education; (3)
the nature and extent of employee's job
search; (4) the employee's intent in
conducting his job search; (5) the
availability of jobs in the area suitable for
the employee, considering his disability; and
(6) any other matter affecting employee's
capacity to find suitable employment.
National Linen Service v. McGuinn, 8 Va. App. 267, 272, 380
S.E.2d 31, 34 (1989).
"On appeal, we view the evidence in the light most favorable
to the prevailing party.
Findings of fact made by the commission
are binding on appeal if they are supported by credible
Georgia Pacific Corp. v. Dancy, 17 Va. App. 128,
133-34, 435 S.E.2d 898, 901 (1993) (citations omitted); see also
Celanese Fibers Co. v. Johnson, 229 Va. 117, 120-21, 326 S.E.2d
687, 690 (1985).
EXTENT OF CLAIMANT'S DISABILITY
FROM JUNE 5, 1995 TO JULY 31, 1995
We hold that the commission erred when it awarded claimant
total disability benefits for the period of time beginning on
June 5, 1995 and ending on July 31, 1995.
First, the evidence
does not support a finding that claimant was "totally" disabled
during this period of time.
The only evidence in the record
regarding claimant's capacity during this time is the medical
records of Dr. Prince, which indicate that claimant was only
Following his examination of claimant on
June 5, Dr. Prince concluded that claimant suffered from a "right
lumbar sacral radiculopathy [and] . . . underlying disc disease"
and restricted claimant from lifting any objects in excess of ten
However, the doctor did not conclude that claimant was
incapable of working altogether.
Dr. Prince examined claimant
again on June 19, July 6, and July 25 and his notes indicate that
he did not modify the restriction he had earlier placed on
In addition, the evidence is insufficient to support the
commission's conclusion that claimant reasonably marketed his
residual capacity to work from June 5 through July 31.
evidence in the record regarding claimant's marketing effort is
claimant's testimony at the hearing before the deputy
He testified that between June 5, 1995 and the
date of the hearing on May 1, 1996, he registered with the
Virginia Employment Commission (VEC) and unsuccessfully sought
work within his capacity at high schools, a hospital, a filling
station and a grocery store.
However, when appellant's counsel
asked claimant to specify the exact dates of these efforts, his
testimony did not establish that he had made any of these
marketing efforts between June 5, 1995 and July 31, 1995.
testified that he last contacted the VEC in April 1996 and that
he sought employment at the grocery store between January 1996
and April 1996.
Otherwise, claimant testified that he was unable
to remember the "exact dates" of his efforts to find employment.
Because this evidence does not support the conclusion that he
made reasonable efforts to seek employment between June 5, 1995
and July 31, 1995, the commission erred when it awarded claimant
total disability benefits during this time period.
EXTENT OF CLAIMANT'S DISABILITY
FROM AUGUST 1, 1995 TO THE PRESENT
We hold that the evidence was sufficient to support the
finding of the deputy commissioner that claimant was "totally
disabled from August 1, 1995 and continuing." 1
On April 24,
1996, Dr. Salvant issued a "disability certificate" that stated
that claimant was "totally incapacitated from August 1, 1995
thr[ough] August 15, 1996."
At his deposition, Dr. Salvant
stated that interpreting the language of this certificate
literally to mean that claimant "was totally incapacitated from
any type of work until his [next appointment]" was consistent
with the advice the doctor had previously given to claimant.
Viewing the certificate and Dr. Salvant's testimony in the light
In its award, the full commission did not address this
finding by the deputy commissioner. However, it implicitly
affirmed this finding by affirming the deputy commissioner's
award of total disability benefits during this time period.
Thus, on appeal, we review the sufficiency of the evidence
supporting the deputy commissioner's finding that claimant has
been totally disabled since August 1, 1995.
most favorable to claimant, this evidence supports the deputy
commissioner's finding that claimant's incapacity was total
beginning on August 1, 1995 and continuing to the present.
Celanese Fibers Co., 229 Va. at 120-21, 326 S.E.2d at 690.
For the foregoing reasons, we reverse the portion of the
commission's award providing total disability benefits to
claimant from June 5, 1995 through July 31, 1995.
We affirm the
remaining portions of the commission's award.
Affirmed in part and reversed in part.