Marty D. Foust v. Lawrence Brothers, Inc. and American Interstate Insurance Company

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Malveaux, Athey and Callins
MARTY D. FOUST
MEMORANDUM OPINION*
v. Record No. 0015-22-3 PER CURIAM
FEBRUARY 28, 2023
LAWRENCE BROTHERS, INC. AND
AMERICAN INTERSTATE INSURANCE COMPANY
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Marty D. Foust, on brief), pro se.
No brief for appellees.
Marty D. Foust appeals a decision of the Workers’ Compensation Commission
terminating his January 6, 2012 open award of benefits because he had received the statutory
maximum of 500 weeks of temporary total disability benefits. After examining the briefs and
record in this case, the panel unanimously holds that oral argument is unnecessary because “the
appeal is wholly without merit.” Code § 17.1-403(ii)(a); Rule 5A:27(a). Accordingly, we affirm
the Commission’s judgment.
BACKGROUND
“On appeal from a decision of the Workers’ Compensation Commission, the evidence and
all reasonable inferences that may be drawn from that evidence are viewed in the light most
favorable to the party prevailing below.” Anderson v. Anderson, 65 Va. App. 354, 361 (2015)
(quoting Artis v. Ottenberg’s Bakers, Inc., 45 Va. App. 72, 83 (2005) (en banc)).
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
On April 18, 2011, Foust suffered a compensable injury by accident when he “sustained
second and third degree burns to the chest, left elbow, abdomen/flank area, and left upper
extremity.” The parties stipulated that Foust was entitled to temporary total disability benefits and
that his pre-injury average weekly wage was $605. Accordingly, on January 5, 2012, a deputy
commissioner awarded Foust lifetime medical benefits and $403.33 per week in temporary total
disability benefits based on the stipulated average weekly wage. Foust’s employer at the time of the
accident paid Foust the statutory maximum of 500 weeks of temporary total disability benefits from
April 19, 2011, through November 16, 2020. See Code § 65.2-518 (“The total compensation
payable under this title shall in no case be greater than 500 weeks . . . .”).
Since the original award, the parties have litigated numerous issues before the Commission,
the history of which is recited in a March 5, 2021 opinion from the deputy commissioner in the
record of a related appeal. The present appeal involves only the Commission’s decision to
terminate Foust’s award because he had received the statutory maximum of 500 weeks of
temporary total disability benefits.
On October 27, 2021, the Commission issued a “Notification of Terminated Awards” to
Foust. The notification informed Foust that “[t]he open Award entered on January 6, 2012
providing for benefits beginning April 19, 2011 is hereby terminated effective November 16, 2020
based on the expiration of 500 weeks.” Foust timely requested review by the Commission. His
request for review asserted no reason why the notification was issued in error. On November 23,
2021, the Commission acknowledged receipt of the request for review and informed the parties that,
absent a joint request for written statements and oral argument, its review would be based solely on
the record. On December 2, 2021, the Commission affirmed the “Notification of Terminated
Awards.” Foust appeals.
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ANALYSIS
Although Foust noted an appeal from the Commission’s decision that he had received 500
weeks of temporary total disability benefits, his assignments of error contest the Commission’s
recitation of the procedural history of his case and other issues unrelated to the number of weeks he
received benefits.
Foust asserts that the Commission erred by stating that it held his “pre-injury average
weekly wage was $605, not $900.” Foust also claims that “he was unaware that his attorney had
agreed [his] pre-injury average weekly wage” was $605. He contends further that the Commission
erred by stating that he sought a cost-of-living adjustment for wage loss benefits received in 2020
and that a “[d]eputy [c]ommissioner denied his entitlement to such by opinion dated April 22,
2021.” Moreover, he maintains that the Commission erred by stating that he failed to produce
evidence demonstrating “improper actions on the part of the defendants in the calculation of wages”
or that his pre-injury wage was $900. The only assignment of error relating to the number of weeks
Foust received benefits is his assertion that the Commission misstated that “the dates of payment
encompassed April 19, 2011 through November 16, 2020” and that it erred by ruling that he had
offered no argument or evidence to the contrary.
Even assuming that Foust’s arguments on appeal address the Commission’s decision
affirming the termination of his benefits, his arguments were not presented to the Commission in
support of his request for review. “No ruling of . . . the Virginia Workers’ Compensation
Commission will be considered as a basis for reversal unless an objection was stated with
reasonable certainty at the time of the ruling, except for good cause shown or to enable this Court to
attain the ends of justice.” Rule 5A:18. “Procedural-default principles require that the argument
asserted on appeal be the same as the contemporaneous argument at trial.” Bethea v.
Commonwealth, 297 Va. 730, 743 (2019). “[N]either an appellant nor an appellate court should
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‘put a different twist on a question that is at odds with the question presented to the [lower
tribunal].’” Id. at 744 (quoting Commonwealth v. Shifflett, 257 Va. 34, 44 (1999)). The
Commission “must be alerted to the precise ‘issue’ to which a party objects.” Kelly v.
Commonwealth, 42 Va. App. 347, 354 (2004) (quoting Neal v. Commonwealth, 15 Va. App. 416,
422 (1992)). “Although Rule 5A:18 contains exceptions for good cause or to meet the ends of
justice, [Foust] does not argue these exceptions and we will not invoke them sua sponte.”
Williams v. Commonwealth, 57 Va. App. 341, 347 (2010); see also Hampton Inn & Selective Ins.
Co. of Am. v. King, 58 Va. App. 286, 301 (2011) (same).
Accordingly, appellate review of Foust’s arguments is barred by Rule 5A:18.
CONCLUSION
For the foregoing reasons, we affirm the Commission’s judgment.
Affirmed.
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