                    COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Fitzpatrick and Annunziata
Argued at Richmond, Virginia


GRAYSON MITCHELL, INC., ET AL.
                                         MEMORANDUM OPINION * BY
v.         Record No. 0269-97-2           JUDGE LARRY G. ELDER
                                           SEPTEMBER 23, 1997
ERNEST JOHN HAMLETTE, JR.


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           Cecil H. Creasey, Jr. (Mark M. Caldwell, III;
           Sands, Anderson, Marks & Miller, on brief),
           for appellants.
           Zenobia J. Peoples for appellee.



     Grayson Mitchell, Inc. and Twin City Fire Insurance Company

(collectively "appellant") appeal an order of the Workers'

Compensation Commission (commission) awarding temporary total

disability benefits to Ernest John Hamlette, Jr. (claimant).

Appellant contends that the commission erred when it awarded

temporary total disability benefits to claimant because

(1) claimant failed to give written notice of his injury in

accordance with Code § 65.2-600 and (2) the evidence was

insufficient to support the findings that claimant's disability

was total or that he made a reasonable effort to market his

residual capacity to work.   For the reasons that follow, we

affirm in part and reverse in part.



     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
                                  I.

                     NOTICE UNDER CODE § 65.2-600

     Under Code § 65.2-600(A) and (D), an injured employee is

required to give his or her employer a "written notice of the

accident" "within thirty days after the occurrence of the

accident . . . ."    The written notice must state "the name and

address of the employee, the time and place of the accident, and

the nature and cause of the accident and the injury."    Code

§ 65.2-600(B) (emphasis added).
     Claimant, a truck driver, was involved in a traffic accident

in North Carolina.    During and after the accident, claimant "felt

a pain around [his] back."    After being informed by a paramedic

at the scene that he had pulled a muscle in his back, he chose

not to go to the hospital.    Claimant immediately reported the

accident to appellant by using a device in his truck that

communicated with appellant by satellite.    Claimant also wrote a

note at the accident scene which included the details of the

accident and the fact that he pulled a "muscle in lower back."

It is not disputed that this note was retrieved from the truck by

claimant's supervisor the following day.    The issue is whether a

report of a pulled muscle in the lower back area after a traffic

accident is sufficient notice of what is later diagnosed to be a

more serious back injury.

     We hold that claimant's description of his back injury was

sufficient to provide appellant with notice of the "nature" of



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his injury under Code § 65.2-600.    The purpose of the notice

requirement of Code § 65.2-600 is to enable the employer to

provide immediate medical treatment to the injured employee in

order to reduce the seriousness of the injury and to investigate

the employee's claim and prepare its defense.    See Winston v.

City of Richmond, 196 Va. 403, 408, 83 S.E.2d 728, 731 (1954)

(citing Whitmyre v. International Bus. Mach. Corp., 267 N.Y. 28,

30, 195 N.E. 539, 540 (1935)).   We have held that the failure to

give any notice of an injury is reasonably excused when the
employee first regards the injury as trivial but later learns

through medical diagnoses that it is serious.    See Westmoreland

Coal Co. v. Coffey, 13 Va. App. 446, 449, 412 S.E.2d 209, 211

(1991) (citing Lucas v. Research Analysis Corp., 209 Va. 583,

586, 166 S.E.2d 294, 296 (1969)).    In a situation where an

employee's failure to give notice is reasonably excused, the

employer prevails if he can show that he was prejudiced.       See id.

at 448, 412 S.E.2d at 211; Code § 65.2-600(D).   In the case

before us, the commission found the notice to be "timely and

proper" and went on to find that there was no prejudice to

appellant.   It follows logically that, if failing to give notice

of an injury is reasonably excused because the employee believed

that the injury was trivial, then giving timely notice of an
injury that inadvertently minimizes its seriousness should also

satisfy the purposes of Code § 65.2-600.

     In this case, appellant's description of his back injury as




                                 3
a "pulled muscle" satisfied the purposes of the notice

requirement and therefore provided sufficient notice under Code

§ 65.2-600.   Although claimant underestimated the seriousness of

his back injury in his note to appellant, his note was sufficient

to enable appellant to begin both medical treatment of claimant's

injured back and an investigation of the accident.   Appellant was

aware that claimant was not a medical professional and that an

examination by a physician would more accurately diagnose the

extent of his back injury.    However, despite the notice provided

by claimant, appellant decided against offering claimant a panel

of physicians.   A subsequent medical examination initiated by

claimant revealed that he had seriously injured his spine during

the accident.
                                 II.

                  EXTENT OF CLAIMANT'S DISABILITY

     Appellant also contends that the commission erred when it

found that claimant was entitled to total disability benefits

commencing on June 5, 1995.   Appellant argues that the evidence

only established that claimant was partially disabled beginning

on this date and that the record does not support the

commission's finding that claimant reasonably marketed his

remaining capacity to work from June 5 until the date of the

hearing on his claim.   Although we agree that the commission

erroneously awarded claimant total disability benefits from June

5, 1995 until July 31, 1995, we conclude that the evidence was




                                  4
sufficient to support the finding that claimant has been totally

disabled since August 1, 1995.

       The amount of compensation for injuries covered by the

Workers' Compensation Act is set forth in chapter five of the

Act.   If the injury has caused the employee to be "totally"

incapacitated, then the amount of compensation is determined by

applying Code § 65.2-500.   If the employee is only "partially"

incapacitated by his or her injury, then the amount of

compensation is determined by applying Code § 65.2-502.
          The extent of earning capacity must be
          ascertained from the evidence, and such is
          not limited to any special class of proof.
          All legal facts and circumstances surrounding
          the claim should properly be considered and
          due weight given them by the Commission.


Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 441, 339

S.E.2d 570, 573 (1986) (citing J. A. Foust Coal Co. v. Messer,

195 Va. 762, 766, 80 S.E.2d 533, 535 (1954)).

       An employee who is partially disabled is entitled to

benefits as if his incapacity was total under Code § 65.2-500 if

he proves that he was unable to procure selective employment

after making a reasonable effort to market his remaining capacity

to work.    See Washington Metro. Area Transit Auth. v. Harrison,

228 Va. 598, 601, 324 S.E.2d 654, 655-56 (1985) (citing

Pocahontas Fuel Co. v. Barbour, 201 Va. 682, 684, 112 S.E.2d 904,

906 (1960)).   "What constitutes a reasonable marketing effort

depends upon the facts and circumstances of each case."       Grief

Companies (GENESCO) v. Sipe, 16 Va. App. 709, 715, 434 S.E.2d



                                  5
314, 318 (1993).
          [I]n deciding whether a partially disabled
          employee has made reasonable effort to find
          suitable employment commensurate with his
          abilities, the commission should consider
          such factors as: (1) the nature and extent
          of employee's disability; (2) the employee's
          training, age, experience, and education; (3)
          the nature and extent of employee's job
          search; (4) the employee's intent in
          conducting his job search; (5) the
          availability of jobs in the area suitable for
          the employee, considering his disability; and
          (6) any other matter affecting employee's
          capacity to find suitable employment.


National Linen Service v. McGuinn, 8 Va. App. 267, 272, 380

S.E.2d 31, 34 (1989).

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

to the prevailing party.   Findings of fact made by the commission

are binding on appeal if they are supported by credible

evidence."   Georgia Pacific Corp. v. Dancy, 17 Va. App. 128,

133-34, 435 S.E.2d 898, 901 (1993) (citations omitted); see also

Celanese Fibers Co. v. Johnson, 229 Va. 117, 120-21, 326 S.E.2d

687, 690 (1985).

                                  A.
                   EXTENT OF CLAIMANT'S DISABILITY

                FROM JUNE 5, 1995 TO JULY 31, 1995

     We hold that the commission erred when it awarded claimant

total disability benefits for the period of time beginning on

June 5, 1995 and ending on July 31, 1995.   First, the evidence

does not support a finding that claimant was "totally" disabled

during this period of time.   The only evidence in the record



                                  6
regarding claimant's capacity during this time is the medical

records of Dr. Prince, which indicate that claimant was only

partially disabled.   Following his examination of claimant on

June 5, Dr. Prince concluded that claimant suffered from a "right

lumbar sacral radiculopathy [and] . . . underlying disc disease"

and restricted claimant from lifting any objects in excess of ten

pounds.   However, the doctor did not conclude that claimant was

incapable of working altogether.       Dr. Prince examined claimant

again on June 19, July 6, and July 25 and his notes indicate that

he did not modify the restriction he had earlier placed on

claimant's work.
     In addition, the evidence is insufficient to support the

commission's conclusion that claimant reasonably marketed his

residual capacity to work from June 5 through July 31.      The only

evidence in the record regarding claimant's marketing effort is

claimant's testimony at the hearing before the deputy

commissioner.   He testified that between June 5, 1995 and the

date of the hearing on May 1, 1996, he registered with the

Virginia Employment Commission (VEC) and unsuccessfully sought

work within his capacity at high schools, a hospital, a filling

station and a grocery store.   However, when appellant's counsel

asked claimant to specify the exact dates of these efforts, his

testimony did not establish that he had made any of these

marketing efforts between June 5, 1995 and July 31, 1995.      He

testified that he last contacted the VEC in April 1996 and that




                                   7
he sought employment at the grocery store between January 1996

and April 1996.    Otherwise, claimant testified that he was unable

to remember the "exact dates" of his efforts to find employment.

 Because this evidence does not support the conclusion that he

made reasonable efforts to seek employment between June 5, 1995

and July 31, 1995, the commission erred when it awarded claimant

total disability benefits during this time period.

                                  B.
                   EXTENT OF CLAIMANT'S DISABILITY
                  FROM AUGUST 1, 1995 TO THE PRESENT

     We hold that the evidence was sufficient to support the

finding of the deputy commissioner that claimant was "totally

disabled from August 1, 1995 and continuing." 1   On April 24,

1996, Dr. Salvant issued a "disability certificate" that stated

that claimant was "totally incapacitated from August 1, 1995

thr[ough] August 15, 1996."    At his deposition, Dr. Salvant

stated that interpreting the language of this certificate

literally to mean that claimant "was totally incapacitated from

any type of work until his [next appointment]" was consistent

with the advice the doctor had previously given to claimant.

Viewing the certificate and Dr. Salvant's testimony in the light

     1
      In its award, the full commission did not address this
finding by the deputy commissioner. However, it implicitly
affirmed this finding by affirming the deputy commissioner's
award of total disability benefits during this time period.
Thus, on appeal, we review the sufficiency of the evidence
supporting the deputy commissioner's finding that claimant has
been totally disabled since August 1, 1995.




                                  8
most favorable to claimant, this evidence supports the deputy

commissioner's finding that claimant's incapacity was total

beginning on August 1, 1995 and continuing to the present.    See

Celanese Fibers Co., 229 Va. at 120-21, 326 S.E.2d at 690.

     For the foregoing reasons, we reverse the portion of the

commission's award providing total disability benefits to

claimant from June 5, 1995 through July 31, 1995.   We affirm the

remaining portions of the commission's award.
                           Affirmed in part and reversed in part.




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