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...