                    COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton and Kelsey
Argued at Richmond, Virginia


JOHANNA ALLYN
                                          MEMORANDUM OPINION * BY
v.   Record No. 1889-02-2                 JUDGE D. ARTHUR KELSEY
                                             FEBRUARY 11, 2003
HANOVER COUNTY SOCIAL SERVICES AND
 VIRGINIA MUNICIPAL GROUP
 SELF-INSURANCE ASSOCIATION


          FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

            William C. Herbert, III, for appellant.

            Ralph L. Whitt, Jr. (Michael P. Del Bueno;
            Whitt & Associates, on brief), for appellees.


     Johanna Allyn appeals a decision of the Virginia Workers'

Compensation Commission denying her claim for benefits because

she did not provide timely notice to her employer as required by

Code § 65.2-600(D) and offered no reasonable excuse for failing

to do so.    Finding no error in the commission's decision, we

affirm.

                                 I.

     On appeal, "we view the evidence in the light most favorable

to the prevailing party" and grant that party the benefit of all

reasonable inferences.    Tomes v. James City (County Of) Fire, 39

Va. App. 424, 429, 573 S.E.2d 312, 315 (2002); Grayson County


     * Pursuant to Code § 17.1-413 this opinion is not
designated for publication.
Sch. Bd. v. Cornett, 39 Va. App. 279, 281, 572 S.E.2d 505, 506

(2002).

     In 1999, Allyn worked as an Administrative Manager for

Hanover County Social Services ("Hanover").   One of her duties

included managing an emergency shelter for county residents in

the event of a natural disaster.   When Hurricane Floyd

approached Virginia on September 16, 1999, Allyn began making

preparations to operate a shelter at Patrick Henry High School.

Early that morning, Allyn's husband drove her to the high school

and helped her unload boxes from the car.   While carrying a box

into the shelter, he slipped on the wet floor and suffered a

severe head injury.

     Allyn witnessed her husband's fall and claims to have been

emotionally traumatized by it.   Shortly after her husband's

accident, Allyn visited her family physician, Dr. Donald Ganley,

complaining of shortness of breath.   Dr. Ganley attributed her

symptoms to "'tremendous stress' resulting from her husband's

injury" and referred her to Julia Frischtick, a licensed

clinical social worker.

     Frischtick first saw Allyn on October 13, 1999.      Frischtick

noted that Allyn had "increased trouble dealing with husband's

accident – PTSD?"   After two additional appointments, Frischtick

concluded that Allyn's symptoms were intensifying and referred

her to Dr. Anne Sitarz, a licensed clinical psychologist, for

additional treatment.   In making this referral, Frischtick felt
                              - 2 -
the condition was "not anything I can deal with, this is trauma

resolution, and I need for you to see somebody else."

     During her first appointment with Dr. Sitarz on November 9,

1999, Allyn stated on the Adult Registration Form, "Major reason

for seeking help at this time:   'husband's accident very

unsettling, need help coping w/trauma.'"   After evaluating

Allyn, Dr. Sitarz "concurred with Ms. Frischtick that [Allyn]

had indeed post-traumatic stress disorder, and she had all the

symptoms to qualify for that diagnosis."   Dr. Sitarz also

concluded that Allyn's condition was "caused by the accident her

husband had at Patrick Henry."

     Donna Douglas, Allyn's supervisor, was aware of the injury

sustained by Allyn's husband the day it happened.   Douglas,

however, did not learn of any alleged psychological injury to

Allyn until at least January 27, 2000, when Douglas became aware

of the PTSD diagnosis.   No other evidence showed that Hanover

knew, prior to January 27, 2000, of any psychological injury to

Allyn arising out of her husband's fall.

     The deputy commissioner denied Allyn's claim, finding that

"the evidence establishes without contradiction that the

employer [Douglas] first learned of the claimant's injury [PTSD]

on January 27, 2000, more than four months after the hurricane

events, and more than three months after the diagnosis of PTSD

attributable to the events that day . . . ."   (bracketed

material in original).   Because Allyn offered no evidence,
                              - 3 -
"testimonial or otherwise, to explain or justify this delay in

reporting her injury," the deputy commissioner ruled that the

claim was barred by the 30-day notice requirement of Code

§ 65.2-600.   On appeal, the full commission affirmed, holding

that "the deputy commissioner correctly found that the Claim was

barred by Code § 65.2-600."

                               II.

     On appeal, we defer to the commission in its role as fact

finder.   VFP, Inc. v. Shepherd, 39 Va. App. 289, 292, 572 S.E.2d

510, 511-12 (2002).   "If supported by credible evidence, the

factual findings of the commission are binding on appeal."

Tomes, 39 Va. App. at 430, 573 S.E.2d at 315 (citation omitted).

When "determining whether credible evidence exists," we cannot

"retry the facts, reweigh the preponderance of the evidence, or

make [our] own determination of the credibility of the

witnesses."   Wagner Enters. v. Brooks, 12 Va. App. 890, 894, 407

S.E.2d 32, 35 (1991).   In addition, the commission's

"conclusions upon conflicting inferences, legitimately drawn

from proven facts, are equally binding on appeal."      Watkins v.

Halco Eng'g, Inc., 225 Va. 97, 101, 300 S.E.2d 761, 763 (1983).

     Unless it involves a statutory interpretation or other

exposition of legal principle, the issue of timely notice

ordinarily poses a question of fact.   See, e.g., State Farm Fire

& Cas. Co. v. Scott, 236 Va. 116, 120-21, 372 S.E.2d 383, 385

(1988) ("[W]hether notice was given within a reasonable time
                             - 4 -
after the accident was a question to be resolved by the fact

finder based upon all the facts and circumstances."); Lord v.

State Farm, 224 Va. 283, 284, 295 S.E.2d 796, 797 (1982) (The

"question of timely notice is usually for the fact-finder to

determine . . . .").

                              III.

     Code § 65.2-600(A) requires an employee to "immediately on

the occurrence of an accident or as soon thereafter as

practicable, give or cause to be given to the employer a written

notice of the accident."   Under § 65.2-600(B), the notice must

state "the nature and cause of the accident and the injury." 1

Subsection D sets a time limit for the required notice:

          No compensation or medical benefit shall be
          payable unless such written notice is given
          within thirty days after the occurrence of
          the accident or death, 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.

Code § 65.2-600(D).

     The commission found that Allyn did not give notice to her

employer within this 30-day period.   Ample evidence supports the




     1
       The notice need not be in writing "if the employer has
actual notice through a foreman or other superior officer."
Goodyear Tire & Rubber Co. v. Harris, 35 Va. App. 162, 171, 543
S.E.2d 619, 623 (2001); Newport News Shipbuilding & Dry Dock Co.
v. Barnes, 32 Va. App. 66, 70, 526 S.E.2d 298, 300 (2000); Kane
Plumbing, Inc. v. Small, 7 Va. App. 132, 138, 371 S.E.2d 828,
832 (1988).
                              - 5 -
commission's decision on this issue.   The finding that Allyn had

"knowledge of the injury" on November 9, l999, rests securely on

Allyn's testimony as well as the records of Ms. Frischtick and

Dr. Sitarz.   The evidence also demonstrated that "the employer

first learned of the claimant's injury on January 27, 2000, more

than four months after the hurricane events, and more than three

months after the diagnosis of PTSD attributable to the events

that day . . . ."   Though Hanover knew about the accident

involving Allyn's husband on the day it happened, Hanover knew

nothing about Allyn's alleged psychological injury until months

afterwards.

     Having failed to give timely notice, Allyn bore the burden

of proving "a reasonable excuse" for the delay.    Bogese Builder

v. Robertson, 17 Va. App. 700, 706, 440 S.E.2d 622, 626 (1994);

see also Wagner Enters., 12 Va. App. at 896, 407 S.E.2d at 36;

Lucas v. Research Analysis Corp., 209 Va. 583, 586, 166 S.E.2d

294, 296 (1969).    On this issue, the deputy commissioner found

that Allyn "offered no evidence, testimonial or otherwise, to

explain or justify this delay in reporting her injury."    The

full commission agreed, noting that no evidence supported

Allyn's claim that "she was prevented by her injury from

providing proper notice."   Credible evidence in the record

supports the commission's findings.




                               - 6 -
                               IV.

      In its capacity as fact finder, the commission properly

held that Allyn did not provide timely notice under Code

§ 65.2-600(D) and offered no reasonable excuse for failing to do

so.   Finding no error in the commission's decision, we affirm. 2

                                                         Affirmed.




      2
       The appellees, Hanover County Social Services and its
insurer, Virginia Municipal Group Self-Insurance Association,
assign cross-error to the commission's finding that Allyn's PTSD
arose from her employment. Given our holding, we need not
address the issues stemming from the assignment of cross-error.
                              - 7 -
