COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

GLORIA JACKSON HICKS 

 MEMORANDUM OPINION*

v. Record No. 1090-96-1 PER CURIAM 

 OCTOBER 8, 1996 

nVIEW CORPORATION 

AND 

COMMERCIAL UNION INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Gloria Jackson Hicks, pro se, on briefs). 

 (Charles F. Midkiff; Scott C. Ford; Midkiff & 

Hiner, on brief), for appellees. 

 Gloria Jackson Hicks ("claimant") contends that the Workers' 

Compensation Commission ("commission") erred in finding that (1) 

her failure to give timely notice to nView Corporation 

("employer") as required by Code § 65.2-600 barred her claim 

alleging an April 18, 1995 injury by accident; (2) she failed to 

prove an April 18, 1995 injury by accident arising out of and in 

the course of her employment; and (3) employer's failure to file 

an Employer's First Report of Accident concerning her October 12, 

1992 industrial accident did not toll the applicable statute of 

limitations. Upon reviewing the record and the briefs of the 

parties, we conclude that this appeal is without merit. 

Accordingly, we summarily affirm the commission's decision. Rule 

5A:27. 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

 Code § 65.2-600 prohibits an employee from receiving 

compensation or physician's fees unless the employee has given 

the employer written notice of the accident, or the employer had 

knowledge of the accident. Additionally, an employee must 

furnish the employer written notice within thirty days of the 

accident in order to receive compensation, "unless reasonable 

excuse is made to the satisfaction of the Commission for not 

giving such notice and the Commission is satisfied that the 

employer has not been prejudiced thereby." Code § 65.2-600(D). 

 The full commission affirmed by reference the deputy 

commissioner's conclusion that claimant failed to meet her burden 

of proving timely notice. The deputy commissioner found that 

claimant did not give notice to employer of her alleged April 18, 

1995 industrial accident until June 28, 1995, more than thirty 

days after the accident allegedly occurred. 

 Claimant testified that on April 18, 1995, she told her 

supervisor, Jeanette Weaver, that she was going home due to back 

pain. Claimant also stated that she called Weaver later that day 

and told her that she would not be coming into work due to back 

pain. Claimant admitted that she did not tell Weaver on either 

occasion that she had sustained an accident at work that day 

resulting in a back injury. Claimant conceded that the first 

time she gave employer notice of the alleged April 18, 1995 

accident was on June 28, 1995, when she filed her claim for 

benefits. Weaver and Carol Wilson, employer's former human 
 3 

resources director, testified that claimant told them on April 

18, 1995, that she could not work due to back pain related to an 

October 1992 injury. 

 The testimony of claimant, Weaver, and Wilson provides 

credible evidence to support the commission's finding that 

claimant did not give employer notice of her April 18, 1995 

accident within thirty days of its occurrence. Therefore, we may 

not disturb this finding on appeal. See James v. Capitol Steel 

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). 

 The deputy commissioner also found that claimant offered no 

excuse or justification for her failure to give timely notice. 

The burden for showing a reasonable excuse for failure to give 

timely notice is upon the claimant. Wagner Enters., Inc. v. 

Brooks, 12 Va. App. 890, 896, 407 S.E.2d 32, 36 (1991). 

Unless we can say as a matter of law that claimant's evidence was 

sufficient to sustain her burden proving a reasonable excuse, 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 presented no evidence to explain why she failed to 

give employer timely notice of the alleged April 18, 1995 

accident. Therefore, we cannot find as a matter of law that she 

met her burden of proof. Accordingly, we find that the 

commission did not err in ruling that claimant's application 

alleging an April 18, 1995 injury by accident was barred because 
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claimant failed to give employer timely notice as required by 

Code § 65.2-600. 

 Claimant did not argue before the commission that her April 

18, 1995 injury was causally related to an October 12, 1992 

injury by accident, and that the statute of limitations with 

respect to that accident was tolled because employer failed to 

file an Employer's First Report of Accident. Accordingly, we 

will not consider these issues for the first time on appeal. See

Green v. Warwick Plumbing & Heating Corp., 5 Va. App. 409, 413, 

364 S.E.2d 4, 6 (1988); Rule 5A:18. Moreover, because our ruling 

on claimant's first question presented disposes of this appeal, 

we need not address claimant's other questions presented. 

 For the reasons stated, we affirm the commission's decision. 

 Affirmed.