Lynn J. Dempsey v. Enerfab Corporation

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
LYNN J. DEMPSEY
MEMORANDUM OPINION *
v. Record No. 1894-98-2 PER CURIAM
FEBRUARY 2, 1999
ENERFAB CORPORATION AND NATIONAL
FIRE INSURANCE COMPANY OF HARTFORD
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Lynn J. Dempsey, pro se).
(Jennifer G. Marwitz; Law Offices of Roya
Palmer Ewing, on brief), for appellees.
Lynn J. Dempsey ("claimant") contends that the Workers'
Compensation Commission ("commission") erred in (1) denying his
request made on the day of the hearing to introduce into evidence
the March 27, 1997 medical report of Dr. H.L. Phillips and two
office notes of Dr. Frank J. Grady; (2) finding that claimant
failed to prove that his non-ischemic central retinal vein
occlusion of the left eye was causally related to his compensable
November 16, 1995 injury by accident; and (3) failing to apply
the "two causes" rule. 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. See
Rule 5A:27.
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
I. and III.
Claimant contends that the deputy commissioner abused her
discretion and denied him due process by refusing to allow him to
introduce into evidence on the day of the hearing Dr. Phillips's
medical report and Dr. Grady's office notes. Claimant also
contends that the commission erred in failing to apply the "two
causes" rule.
Claimant did not request that the full commission review the
deputy commissioner's denial of his request to introduce the
medical reports, nor did he argue before the commission that it
should have applied the "two causes" rule. Decisions of a deputy
commissioner that are not reviewed by the full commission cannot
be brought before this Court. See Southwest Architectural
Prods., Inc. v. Smith, 4 Va. App. 474, 478, 358 S.E.2d 745, 747
(1987). Furthermore, an issue that is not disputed before the
commission will not be considered on appeal. See Green v.
Warwick Plumbing & Heating Corp., 5 Va. App. 409, 413, 364 S.E.2d
4, 6 (1988); Rule 5A:18. Accordingly, we cannot consider these
issues on appeal.
II.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
In denying claimant's application, the commission found as
follows:
We have reviewed the medical record in detail
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and can find no statement from any doctor
that the claimant's non-ischemic central
retinal vein occlusion in his left eye was
caused by exposure to welding flashes on
November 16, 1995, or was the result of the
corneal abrasions sustained at that time.
The closest any doctor comes on this record
to such a statement is the statement of Dr.
[W. Wynn] McMullen that claimant's retinal
condition "appeared to develop in association
with Mr. Dempsey's ocular injury." (Emphasis
added). In the immediately preceding
sentence, Dr. McMullen states that central
retinal vein occlusion is often of unknown
cause. We conclude that at most, Dr.
McMullen was stating no more than a temporal
association between the claimant's corneal
abrasions and the development of the central
retinal vein occlusion. In fact, . . . the
claimant, during a period of approximately
two and one-half months, continued to engage
in his regular duties and responsibilities
without further complaint. At most, we can
conclude that there is an undefined temporal
association between the two conditions. Such
a conclusion is not sufficient to find the
necessary causal relationship between the
claimant's corneal abrasions and his retinal
condition.
The commission's factual findings are supported by the
record. In light of the lack of any persuasive medical opinion
causally relating claimant's retinal condition to his compensable
November 16, 1995 injury by accident, we cannot say as a matter
of law that claimant's evidence sustained his burden of proof.
Accordingly, the commission's findings are binding and conclusive
upon us. See Tomko v. Michael's Plastering Co., 210 Va. 697,
699, 173 S.E.2d 833, 835 (1970).
For these reasons, we affirm the commission's decision.
Affirmed.
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