Center for Obstetrics etc v. Birth-Related Injury ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Agee and Senior Judge Coleman
THE CENTER FOR OBSTETRICS AND
GYNECOLOGY, INC.
MEMORANDUM OPINION*
v. Record No. 2430-02-1 PER CURIAM
FEBRUARY 11, 2003
VIRGINIA BIRTH-RELATED NEUROLOGICAL
INJURY COMPENSATION FUND, ALISON NICOLE
TODD, AN INFANT, BY PAMELA AND MICHAEL
LEE TODD, HER MOTHER AND FATHER, AND
HENRY C. DEMKOWSKI, M.D.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(John Franklin, III; Christopher J. Wiemken;
Taylor & Walker, P.C., on brief), for
appellant. Appellant submitting on brief.
(John W. Vaughan, Jr.; Hirschler Fleischer,
P.C., on brief), for appellee Virginia
Birth-Related Neurological Injury
Compensation Fund. Appellee Virginia
Birth-Related Neurological Injury
Compensation Fund submitting on brief.
No briefs for appellees Alison Nicole Todd,
An Infant, by Pamela and Michael Lee Todd,
her Mother and Father and Henry C.
Demkowski, M.D.
The Center for Obstetrics and Gynecology, Inc. ("the
Center") appeals from a decision of the Workers' Compensation
Commission awarding benefits pursuant to the Virginia
Birth-Related Neurological Compensation Act ("the Act"). The
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Center contends the commission erred in (1) finding that
pursuant to the terms of the Act the commission did not have
jurisdiction over the Center, a professional corporation; (2)
finding that the April 1, 2000 amendments to Code §§ 38.2-5001
and 8.01-273.1 do not apply retroactively to the present case;
and (3) granting the infant complainant a double recovery, that
is recovery under the Act and recovery through a medical
malpractice action. We grant the Center's motion for an
expedited review, and affirm the commission's decision.
We find that the disposition of the first two questions
raised by the Center is controlled by our decision in Berner v.
Mills, 38 Va. App. 11, 560 S.E.2d 925 (2002). 1 Accordingly, we
affirm the commission's finding that the 2000 amendments to the
Act are not to be applied retroactively, and the Center was not
subject to the jurisdiction of the Act.
With respect to the issue of double recovery, we decline to
address that issue on appeal. The Center did not raise the
double recovery issue at the hearing before the deputy
commissioner nor did the deputy commissioner address that issue
in her opinion. The Center did not raise the double recovery
issue in its Request for Review before the full commission. The
Center first raised the double recovery issue in its written
statement filed with the commission on review. The full
1
We recognize that the Supreme Court has granted an appeal
in Berner.
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commission did not address the double recovery issue in its
opinion. The Center then filed a Motion for Reconsideration,
requesting that the commission reconsider its opinion and
address the double recovery issue raised in the written
statement. The full commission denied the Motion for
Reconsideration "based on review and consideration of the motion
for reconsideration."
In Hervey v. Newport News Shipbuilding & Dry Dock Co., 12
Va. App. 88, 402 S.E.2d 688 (1991), a case similar to this case
in that an issue was first presented to the commission in the
written statement, this Court found as follows:
Since [claimant] failed to raise the
occupational disease issue in the initial
hearing before the deputy commissioner, the
full commission, apparently in accordance
with the established Rules of the Industrial
Commission, refrained from addressing the
issue. We also cannot address [claimant's]
argument that since his injury is an
occupational disease, the statute of
limitations does not bar his claim. He did
not properly raise this issue before the
Industrial Commission. We cannot consider
an issue raised for the first time on
appeal.
Id. at 91-92, 402 S.E.2d at 690 (citing Rule 5A:18).
Accordingly, because the Center failed to properly raise the
double recovery issue before the commission, we cannot consider
it for the first time on appeal.
We do not find that the Motion for Reconsideration cured
the Center's failure to properly raise the double recovery
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issue. The commission denied the Motion for Reconsideration
without addressing the merits of the double recovery issue,
implicitly finding that the double recovery issue was not
properly before it.
For these reasons, we affirm the commission's decision.
Affirmed.
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