Jeffrey L Williams v. Gloucester Sheriff's Dept, et

• Court: Court of Appeals of Virginia
• Decided: August 27, 2002
• Docket: 0905024
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bumgardner, Humphreys and Senior Judge Hodges

JEFFREY L. WILLIAMS MEMORANDUM OPINION* v. Record No. 0905-02-4 PER CURIAM AUGUST 27, 2002 GLOUCESTER (COUNTY OF) SHERIFF'S DEPARTMENT AND VIRGINIA MUNICIPAL GROUP SELF-INSURANCE ASSOCIATION

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Michael A. Kernbach; Burgess, Kernbach & Perigard, PLLC, on briefs), for appellant.

(Ralph L. Whitt, Jr.; Whitt & Associates, on brief), for appellees.

Jeffrey L. Williams (claimant) contends the Workers'

Compensation Commission erred in (1) finding that the

presumption under Code § 65.2-402(B) provides the presumed last

injurious exposure, pursuant to Code § 65.2-404, in claims

involving multiple employers; (2) presuming where the last

injurious exposure occurred; and (3) finding there was

sufficient credible medical evidence to support the conclusion

that the last injurious exposure, pursuant to Code § 65.2-404,

causing or contributing to the development of heart disease,

occurred while claimant was employed with the Virginia Peninsula

Regional Jail Authority, a non-presumptive employer pursuant to

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Code § 65.2-402(B). Upon reviewing the record and briefs of the

parties, we conclude claimant failed to preserve these issues

for consideration on appeal. See Rule 5A:18. Accordingly, we

summarily affirm the decision of the commission. See Rule

5A:27.

The deputy commissioner denied claimant's claim on the

ground that the Gloucester (County of) Sheriff's Department

("employer") rebutted the statutory presumption contained in

Code § 65.2-402(B). The deputy commissioner also determined the

date of diagnosis of claimant's heart disease was August 5,

1997.

On review, the full commission affirmed the deputy

commissioner, but on different grounds. The full commission

found that no basis existed for bringing a claim against

employer because claimant's last injurious exposure to the

causative hazards of heart disease occurred while he was working

for a different employer, the Virginia Peninsula Regional Jail.

Claimant did not file a motion for reconsideration after

the full commission issued its decision on different grounds

from the deputy commissioner nor did claimant request a

rehearing in order to allow the commission the opportunity to

correct the alleged error prior to appeal to this Court.

Accordingly, claimant did not preserve the arguments he raises

for the first time on appeal and, therefore, we cannot consider

- 2 - them. See Henrico County Public Utilities v. Taylor, 34 Va.

App. 233, 241 n.4, 540 S.E.2d 501, 506 n.4 (2001); Rule 5A:18.

For these reasons, we summarily affirm the commission's

decision.

Affirmed.

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