Buehler v. Virginia Beach City Public, 051821 VAWC, VA00001706995

Case DateMay 18, 2021
CourtVirginia
ALICE BUEHLER
v.
VIRGINIA BEACH CITY PUBLIC
VIRGINIA BEACH CITY PUBLIC SCHOOLS, Insurance Carrier
PMA MANAGEMENT CORP, TPA, Claim Administrator
Jurisdiction Claim No. VA00001706995
Virginia in the Workers' Compensation Commission
May 18, 2021
          Date of Injury: December 20, 2019          Claim Administrator File No. 0030W78080           Jamie L. Karek, Esquire For the Claimant.           Robert L. Samuel, Jr., Esquire For the Defendant.           Opinion by MARSHALL Commissioner          REVIEW on the record by Commissioner Marshall, Commissioner Newman, and Commissioner Rapaport at Richmond, Virginia.          The claimant requests review of the Deputy Commissioner's December 2, 2020 Opinion finding she did not provide a reasonable excuse for her delayed reporting of her December 20, 2019 accident. We AFFIRM.          I. Material Proceedings          On June 2, 2020 and July 24, 2020, the claimant filed claims alleging she suffered a compensable injury by accident on December 20, 2019. The claimant sought lifetime medical benefits for injuries to her left ankle and left foot. She also sought authorization and payment for left ankle surgery recommended by Dr. Maloof (Comm.'s Ex. 1.)          Deputy Commissioner Jenkins conducted an evidentiary hearing by WebEx on September 24, 2020. The parties stipulated the claimant earned a pre-injury average weekly wage of $1,116.60. Pertinent to our review, the defendant asserted the claimant failed to provide timely notice of an injury.          The Deputy Commissioner denied the claimant's claim on the basis she did not provide notice required by Virginia Code § 65.2-600. He explained, in pertinent part:
Upon consideration of the evidence of record, we find Claimant failed to provide timely notice of her injury within thirty (30) days to the employer as required by Virginia Code § 65.2-600(D). In light of the Claimant's text message to her co-worker on the day of the accident and Claimant's candid admission that she experienced soreness and swelling after the accident, as well as, ongoing pain and swelling continuing after the accident, we find Claimant has failed to provide a reasonable explanation for waiting until February 21, 2020 to report her December 20, 2019 injury to the employer. Accordingly, pursuant to Virginia Code § 65.2-600(D), Claimant is not entitled to an award of benefits.
         (Op. 5.)          The claimant requests review of the Deputy Commissioner's decision. She contends her reasonable belief that her injury was trivial constituted reasonable excuse.          II. Summary of Evidence[1]          The claimant, a teacher, testified she rolled her ankle on a piece of gravel and fell as she stepped down to exit the building through the back door of her classroom on December 20, 2019. She recalled she was holding her purse, a Chromebook, and a dozen eggs when she fell, and there was no railing to grab. After the fall, the claimant observed she was scraped up, her tights were torn, and the heel of her shoe was twisted. She felt stinging everywhere on her left side, and she saw a little blood on her scraped ankle. She also noticed pieces of gravel and dirt on her hands, shoulder, and side.          The claimant admitted she did not report the accident that day. She explained: "I didn't think that I was hurt. I didn't think I was injured. I thought it was just a little— I fell out the door. I'm sixty years old. I thought maybe I'm going to be a little sore from this. That's it." (Tr. 22.) She treated her ankle with an ice pack and Tylenol for a few days until it was no longer swollen. She was next scheduled to work on January 2, 2020 or January 3, 2020, after Christmas break. She recalled, at that time, her ankle was "sore, tender, scraped up, kind of scabbed up and the normal process of healing started and it was just a little achy, a little sore, but nothing really painful and terrible." (Tr. 23.) During the first six weeks of the year, she did not report her injury because it "wasn't unbearable" or "terribly painful," despite an ache that did not dissipate. (Tr. 24-25.) She did not believe it was worse than a "twisted ankle." (Tr. 25.) She chose to seek medical treatment on February 17, 2020, because her ankle was sore, warm, and inflamed.          The medical record...

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