Greater Wise, Inc. and Rockwood Casualty Insurance Co. v. Jackie R. Yates ( 2007 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Beales and Senior Judge Fitzpatrick
GREATER WISE, INC. AND
ROCKWOOD CASUALTY INSURANCE CO.
MEMORANDUM OPINION*
v. Record No. 1728-07-3 PER CURIAM
NOVEMBER 20, 2007
JACKIE R. YATES
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Anne L. Musgrove; Penn, Stuart & Eskridge, on brief), for
appellants.
(D. Allison Mullins; Lee & Phipps, P.C., on brief), for appellee.
Greater Wise, Inc. and its insurer (hereinafter referred to as “employer”) appeal a
decision of the Workers’ Compensation Commission finding that Jackie R. Yates proved he
sustained an injury by accident arising out of and in the course of his employment on July 15,
2006. Employer contends the commission erred in making that finding.1 We have reviewed the
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Employer did not preserve for appellate review the issue it raises in its second question
presented, i.e., that the nature of the commission’s decision prevents this Court from affirming its
award due to an absence of factual resolution on disability or causation isses. Employer did not
raise that issue before the full commission in its written statement on review nor did it raise that
issue in a timely-filed motion for rehearing or reconsideration after the full commission issued its
June 18, 2007 opinion. Thus, Rule 5A:18 bars our consideration of that issue because employer
did not provide the commission with the opportunity to correct any perceived error. See
Williams v. Gloucester Sheriff’s Dep’t, 266 Va. 400, 411, 587 S.E.2d 546, 548 (2003); Rule
5A:18.
Although Rule 5A:18 allows exceptions for good cause or
to meet the ends of justice, [employer] does not argue that we
should invoke these exceptions. See e.g., Redman v.
Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272
(1997) (“In order to avail oneself of the exception, a defendant
must affirmatively show that a miscarriage of justice has occurred,
record and the commission’s opinion and find that this appeal is without merit. Accordingly, we
affirm for the reasons stated by the commission in its final opinion. See Yates v. Greater Wise,
Inc. et. al., VWC File No. 229-68-81 (June 18, 2007). We dispense with oral argument and
summarily affirm because the facts and legal contentions are adequately presented in the
materials before the Court and argument would not aid the decisional process. See Code
§ 17.1-403; Rule 5A:27.
Affirmed.
not that a miscarriage might have occurred.” (emphasis added)).
We will not consider, sua sponte, a “miscarriage of justice”
argument under Rule 5A:18.
Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc).
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