Heyward Joseph Tumlin v. Goodyear Tire, etc. ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
HEYWARD JOSEPH TUMLIN
v. Record No. 2232-95-3 MEMORANDUM OPINION *
PER CURIAM
GOODYEAR TIRE & RUBBER COMPANY FEBRUARY 20, 1996
AND
TRAVELERS INDEMNITY COMPANY OF ILLINOIS
FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
(H. J. Tumlin, pro se, on briefs).
(Gregory T. Casker; Daniel, Vaughan, Medley &
Smitherman, on brief), for appellees.
Heyward Joseph Tumlin contends that the Workers'
Compensation Commission erred in (1) not awarding him penalties,
interest, and cost-of-living supplements from May 18, 1990, the
date of his compensable injury by accident; (2) not awarding him
treble compensatory damages and punitive damages; (3) refusing to
allow him to submit a second medical opinion on review; (4)
refusing to consider his argument that the selective employment
provisions of the Workers' Compensation Act ("the Act") are
unconstitutional; and (5) in not awarding him attorneys' fees and
costs. Upon reviewing the record and the briefs of the parties,
we conclude that this appeal is without merit. Accordingly, we
summarily affirm the commission's decision. Rule 5A:27.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I. Penalties, Interest and Cost-of-Living Supplements
Pursuant to Code § 65.2-524, the commission may assess a
twenty percent penalty against an employer if compensation "is
not paid within two weeks after it becomes due." Under this
section, compensation is due on the date of the award. Audobon
Tree Serv. v. Childress, 2 Va. App. 35, 38-39, 341 S.E.2d 211,
213-14 (1986).
Tumlin's permanent partial disability benefits did not
become due until the commission entered its award on March 30,
1995. Tumlin did not dispute that employer paid him all sums due
for permanent partial disability benefits by check dated March
20, 1995. Because employer paid to Tumlin accrued compensation
before the fourteen-day period expired, the commission did not
err in finding that employer's payment was timely and in denying
Tumlin's request for an award of penalties.
Pursuant to Code § 65.2-713, the commission may assess
interest at the judgment rate against an employer on benefits
accruing from the day they should have been paid, even absent an
award, but only if voluntary payment of such benefits was delayed
or denied without reasonable grounds. The record amply supports
the commission's finding that employer reasonably defended
against Tumlin's claim. Indeed, we noted in a prior opinion that
employer's defense presented an issue of first impression for
this Court. Tumlin v. Goodyear Tire & Rubber Co., 18 Va. App.
375, 381, 444 S.E.2d 22, 25 (1994).
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Interest may also be assessed by the commission when
benefits due under an award are delayed because of an appeal.
Code § 65.2-707. Because no award for permanent partial
disability benefits existed until March 30, 1995, Tumlin's appeal
to this Court did not delay payment of compensation due under an
award. For these reasons, the commission did not err in refusing
to award interest to Tumlin.
Code § 65.2-709, which governs cost-of-living supplements,
does not provide for cost-of-living supplements to be added to
awards of temporary partial or permanent partial disability
benefits. Accordingly, the commission did not err in refusing to
add cost-of-living supplements to Tumlin's award of permanent
partial disability benefits.
II. Treble Compensatory Damages and Punitive Damages
Any argument not raised before the commission will not be
considered for the first time on appeal. Rule 5A:18. See also
Kendrick v. Nationwide Homes, Inc., 4 Va. App. 189, 192, 355
S.E.2d 347, 349 (1987). Tumlin did not ask the commission to
award him treble compensatory and punitive damages. Therefore,
we will not consider this issue for the first time on appeal.
III. Second Medical Opinion
On review before the full commission, Tumlin requested
permission to submit a second medical opinion concerning his
impairment ratings. The commission denied this request because
Tumlin did not first make the request to the deputy commissioner.
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Furthermore, the evidence did not qualify as after-discovered
evidence.
Tumlin filed his initial claim for permanent partial
disability benefits on July 11, 1991. He had ample opportunity
before the August 17, 1992 initial hearing to obtain a second
opinion, but did not do so. Based upon this record, the
commission did not err in refusing to allow Tumlin to submit
additional medical evidence.
IV. Constitutionality of the Act
Tumlin contends that the selective employment provisions of
the Act unconstitutionally discriminate against disabled workers.
Tumlin did not raise this issue at the initial hearing or on
remand to the deputy commissioner after this Court's May 17, 1994
decision. Accordingly, the commission did not err by refusing to
consider this issue for the first time on review.
V. Attorneys' Fees and Costs
On remand to the commission after this Court's May 17, 1994
decision, Tumlin did not request an award of attorneys' fees or
costs. Accordingly, we will not consider this request for the
first time on appeal. Rule 5A:18.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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