Jeffrey L Williams v. Gloucester Sheriff's Dept, et ( 2002 )

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
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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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