COURT OF APPEALS OF VIRGINIA 

Present: Judges Koontz, Bray and Senior Judge Hodges 

HILLARD HEGGIE THARP 

v. Record No. 2494-94-3 MEMORANDUM OPINION*

 PER CURIAM 

WILLIAM A. HAZEL CONSTRUCTION MAY 23, 1995 

AND 

ROYAL INSURANCE COMPANY OF AMERICA 

 FROM THE VIRGINIA WORKERS' 

COMPENSATION COMMISSION 

 (James B. Feinman, on briefs), for appellant. 

 (Edward H. Grove, III; Brault, Palmer, Grove, 

Zimmerman, White & Mims, on brief), for appellees. 

 Hillard Heggie Tharp (claimant) contends that the Workers' 

Compensation Commission erred in finding that (1) his claim was 

barred due to his failure to give timely notice to William A. 

Hazel Construction ("employer") of his alleged May 10, 1993 

accident; and (2) the employer was not required to show that it 

was prejudiced due to an incomplete or defective notice. 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. 

 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, "[n]o defect or 

 

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

designated for publication. 
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inaccuracy in the notice shall be a bar to compensation unless 

the employer shall prove that his interest was prejudiced thereby 

and then only to such extent as the prejudice." Code 

§ 65.2-200(E). Unless we can say as a matter of law that the 

claimant's evidence sustained his burden of proving that the 

employer received timely notice of the claimant's alleged May 10, 

1993 accident, 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). 

 In finding that the claimant failed to meet his burden of 

proving notice, the commission found as follows: 

 The claimant admits that he did not give 

timely notice of an accident on May 10, 1993 

or even that his back condition at that time 

was work-related. His only explanation for 

failure to give timely notice is that he was 

not asked, that the employer did not ask for 

details about his injury and its cause. 

However, the employer is under no obligation 

to investigate an accident that has not been 

reported and the burden is on the employee to 

give notice of one, so the employer's failure 

to ask for details would not justify the 

claimant's failure to report an accident in 

this case. Moreover, the claimant's 

testimony that he was not asked about the 

cause of his injury was effectively rebutted 

by Townsend and Sutherland, and we find that 

notice was not given until after July 13, 

1993 and the late notice was unjustified. It 

is irrelevant that the employer has shown no 

prejudice as a result of the late notice, 

since that burden attaches only where the 

late notice was otherwise justified or where 

incomplete or defective notice of an accident

was given. Code Ann. § 65.2-600 (D-E). 

 The claimant admitted that he did not give notice of a work-
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related accident to the employer until July 13, 1993, after he 

retained counsel. The claimant testified that, on May 10, 1993, 

he told his foreman, Townsend, that "my back was hurting and I 

was in bad shape." There is no evidence that the claimant told 

Townsend that he slipped as he descended from a construction 

equipment vehicle or that he gave Townsend any information 

concerning a work-related accident. When the employer's 

personnel manager, Sutherland, called the claimant on May 26, 

1993, to ask why the claimant was not at work, the claimant did 

not tell Sutherland that he had sustained a work accident or a 

work-related injury. Townsend and Sutherland testified that the 

claimant told them his back was hurting, but that, despite being 

asked, he never stated that this condition was due to a workrelated accident. As fact finder, the commission was entitled to 

accept the testimony of Townsend and Sutherland to rebut the 

claimant's contention that he was not asked about the cause of 

his injury. 

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

that the commission erred in finding that the claimant failed to 

give timely notice of his alleged accident as required by Code 

§ 65.2-600, and that the late notice was unjustified. The 

commission was also correct in holding that the employer was not 

required to show prejudice. The claimant's evidence did not show 

incomplete or defective notice, rather it showed that the 

claimant did not report any information concerning his alleged 
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May 10, 1993 accident to the employer within thirty days of its 

occurrence. 

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

 Affirmed.