COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

SANDRA A. WHEELER 

v. Record No. 2682-96-3 MEMORANDUM OPINION*

 PER CURIAM 

ROANOKE MEMORIAL HOSPITAL MARCH 18, 1997 

AND 

PENNSYLVANIA MANUFACTURERS' 

 ASSOCIATION INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (William H. Fralin, Jr.; Jolly, Place, Fralin & 

Prillaman, on briefs), for appellant. 

 (Richard D. Lucas; Carter, Brown & Osborne, 

P.C., on brief), for appellees. 

 Sandra A. Wheeler (claimant) contends that the Workers' 

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

the notice requirements contained in Code § 65.2-600 applied to 

her claim for a back injury arising out of her August 17, 1995 

compensable injury by accident; (2) she did not provide a 

reasonable excuse for her failure to give timely notice of her 

back injury to Roanoke Memorial Hospital (employer); and (3) 

employer was not required to show that it was prejudiced by 

claimant's failure to give timely notice of her back injury. 

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. 
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 I. 

 On August 17, 1995, claimant tripped and fell at work, 

sustaining a right ankle fracture. Employer accepted the ankle 

fracture as compensable. Thereafter, the parties executed a 

memorandum of agreement with respect to the ankle fracture. On 

January 23, 1996, the commission entered an award pursuant to the 

memorandum of agreement. 

 Claimant testified that at the time of her accident, she 

also felt immediate low back pain. However, she did not report 

her back pain to any physician until December 1995. In addition, 

she did not notify employer of her back injury until she filed a 

change in condition application for a back injury on February 28, 

1996, six months after her accident and two and one-half months 

after she had undergone back surgery. 

 "'The "change in condition" which justifies reopening and 

modification is ordinarily a change, for better or worse, in 

claimant's physical condition. This change may take such form as 

progression, deterioration, or aggravation of the compensable 

condition. . . .'" Board of Supervisors v. Martin, 3 Va. App. 

139, 141, 348 S.E.2d 540, 541 (1986) (quoting Leonard v. Arnold, 

218 Va. 210, 214, 237 S.E.2d 97, 99 (1977) (other citation 

omitted)). 

 The commission correctly held that claimant's back injury 

was not a change in condition. The evidence established that 

claimant's back injury existed before the commission's award for 
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compensation and medical expenses related to claimant's 

compensable ankle fracture. The back injury did not arise after 

the award as a progression, deterioration, or aggravation of 

claimant's compensable ankle fracture. Moreover, no evidence 

showed that claimant's back injury was a compensable consequence 

of the ankle fracture. Rather, the evidence established that the 

back injury was a separate and distinct injury, which occurred 

immediately upon the happening of the accident. Accordingly, the 

commission did not err in finding that the notice provisions 

contained in Code § 65.2-600 applied to claimant's back injury. 

 II. 

 Code § 65.2-600 prohibits an employee from receiving 

compensation or medical benefits unless the employee has given 

the employer written notice of the accident within thirty days of 

its occurrence. The notice must state the name and address of 

the employee, the time and place of the accident, the nature and 

cause of the accident, and the injury. Id. A claimant's failure 

to give timely notice is not a bar to an award of compensation 

and medical benefits if the claimant shows a reasonable excuse to 

the satisfaction of the commission for not giving such notice and 

the commission is satisfied that the employer has not been 

prejudiced thereby. Id. 

 "The employee [bears] the burden of proving a reasonable 

excuse for failing to give timely notice of any injury." Wagner 

Enters., Inc. v. Brooks, 12 Va. App. 890, 896, 407 S.E.2d 32, 36 
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(1991). Unless we can say as a matter of law that claimant's 

evidence sustained her burden of proof, 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 testified that she did not give timely notice of 

her back injury to employer because she and her physician focused 

on her more painful ankle injury. In addition, she stated that 

she did not realize that the back injury was related to her fall 

until December 1995 when her physician took her off her crutches, 

and she was uncertain as to whether the back injury was the 

result of the fall or of a prior back condition. 

 The commission did not find these explanations satisfactory 

to excuse claimant's failure to give timely notice pursuant to 

Code § 65.2-600. In so ruling, the commission found as follows: 

 The claimant testified that she was 

aware of low back pain immediately after the 

fall. If so, there was no reason that this 

complaint could not have been made known to 

her employer and the treating physicians at 

that time, or certainly within 30 days of the 

occurrence. Instead, no complaint was made 

for three and one-half months after the fall. 

 This is not a defect or inaccuracy in her 

notice of accident to the employer, as argued 

by counsel for the claimant, but rather is an 

omission. Moreover, it is an omission which 

is not satisfactorily explained . . . . 

 Based upon this record, we cannot say as a matter of law 

that claimant's evidence sustained her burden of proving that she 

had a reasonable excuse for failing to give timely notice of her 

back injury to employer as required by Code § 65.2-600. 
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 III. 

 The burden of proving prejudice caused by a claimant's delay 

in giving notice does not shift to the employer unless the 

claimant has established a reasonable excuse for the delay to the 

satisfaction of the commission. Lucas v. Research Analysis 

Corp., 209 Va. 583, 586, 166 S.E.2d 294, 296 (1969); Maryland 

Cas. Co. v. Robinson, 149 Va. 307, 311, 141 S.E. 225, 226 (1928). 

 Because claimant did not establish a reasonable excuse for 

failing to give employer notice of her back injury within thirty 

days of its occurrence, the commission did not err in not 

requiring employer to show prejudice. 

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

 Affirmed.