COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

FAIRFAX COUNTY SCHOOL BOARD 

 MEMORANDUM OPINION*

v. Record No. 3092-96-4 PER CURIAM 

 JUNE 10, 1997 

LOUISE S. ROSTKER 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Michael N. Salveson; Hunton & Williams, on 

briefs), for appellant. 

 (James F. Green; Ashcraft & Gerel, on brief), 

for appellee. 

 Fairfax County School Board (employer) contends that the 

Workers' Compensation Commission (commission) erred in finding 

that Louise S. Rostker (claimant) proved a reasonable excuse for 

failing to give her employer timely notice of her October 10, 

1995 injury by accident. Upon reviewing the record and 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(d) requires an employee to give written 

notice of an injury by accident within thirty days of the 

accident "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." In 

applying the statute, the principles are well established that 

 

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

designated for publication. 
 2 

"[t]he burden of showing a reasonable excuse for . . . delay in 

giving notice is upon the [employee, and, that] . . . the burden 

is upon the employer to show that [the employer] has been 

prejudiced by the delay." Maryland Cas. Co. v. Robinson, 149 Va. 

307, 311, 141 S.E. 225, 226 (1928); see also Lucas v. Research 

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

Westmoreland Coal Co. v. Coffey, 13 Va. App. 446, 448, 412 S.E.2d 

209, 211 (1991). 

 The commission found that claimant offered a reasonable 

excuse for her failure to provide written notice in accordance 

with Code § 65.2-600. In its opinion, the commission made the 

following findings: 

 The claimant testified that, 

 notwithstanding the pain and swelling, she 

thought her injury was trivial. The Deputy 

Commissioner found the claimant's testimony 

credible. We agree and further note that the 

claimant did not miss any time from work 

after the accident and that Dr. Lofton's 

[sic] initial treatment corroborates the 

claimant's testimony that the injury was not 

severe. When Dr. Lofton [sic] recommended a 

bone scan and more aggressive treatment, the 

claimant realized her injury was more serious 

and she notified her employer. The claimant 

has presented a reasonable excuse and there 

was no evidence of prejudice.1

 In reviewing decisions of the commission with respect to 

reasonable excuse under Code § 65.2-600 (formerly 65.1-85), the 

Supreme Court has stated that the principal issue is whether 

 

 1Employer does not challenge the commission's finding that 

it failed to prove it suffered prejudice as a result of 

claimant's delay in giving notice. 
 3 

evidence is offered to the satisfaction of the commission. See

Lucas, 209 Va. at 586, 166 S.E.2d at 296. 

 On October 10, 1995, claimant, who worked for employer as a 

special education teacher, injured her right foot, when a student 

accidentally knocked over a chair, which landed on the top of 

claimant's right foot. Claimant continued to work, believing 

that her pain "would pass." When the swelling and pain did not 

resolve, claimant sought medical treatment from Dr. Charles 

Lefton on November 2, 1995. Dr. Lefton took x-rays of claimant's 

foot, which she believed were normal. Claimant understood from 

Dr. Lefton that she had a bruise, which would go away. Dr. 

Lefton prescribed anti-inflammatory medication. When the 

medication did not bring the swelling down, Dr. Lefton injected 

claimant's foot. The injection made claimant's condition worse, 

and Dr. Lefton then prescribed orthotics for claimant's shoes, 

which were also ineffective. 

 At the end of January 1996, Dr. Lefton recommended that 

claimant undergo a bone scan. At that time, claimant panicked 

because she thought she might need some "extreme kind of medical 

care that might prevent working." Claimant reported the accident 

to employer on January 31, 1996. Claimant testified that she did 

not report the accident earlier because "[i]t didn't seem 

necessary. It seemed trivial. And once a couple of weeks had 

passed and other people were aware that I was in pain I was told, 

you can't report after 24 hours." 
 4 

 The February 5, 1996 bone scan revealed probable occult 

fractures of the second and third metatarsals. Due to these 

results, Dr. Lefton prescribed a boot for claimant to wear on her 

foot, similar to a cast. Because claimant was still in pain 

after the boot was removed, Dr. Lefton referred claimant to Dr. 

Mark Myerson for evaluation. Dr. Myerson returned claimant to 

Dr. Lefton's care. On June 19, 1996, claimant started physical 

therapy. 

 The commission found that claimant's excuse was reasonable. 

Credible evidence established that she did not immediately report 

the accident because she thought her injury was trivial. "Notice 

is reasonably excused if an accident, first regarded as trivial, 

is later learned through medical diagnosis to be serious." 

Coffey, 13 Va. App. at 449, 412 S.E.2d at 211. Because credible 

evidence supports the commission's finding that claimant had a 

reasonable excuse for not reporting the accident to her employer 

earlier, we may not disturb the commission's decision. See James 

v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 

487, 488 (1989). 

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

 Affirmed.