Newport News Shipbuilding and Dry Dock Company v. Alonza Wilson, Jr.

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Clements and Senior Judge Annunziata
NEWPORT NEWS SHIPBUILDING
AND DRY DOCK COMPANY
MEMORANDUM OPINION*
v. Record No. 1493-06-1 PER CURIAM
OCTOBER 17, 2006
ALONZA WILSON, JR.
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Benjamin M. Mason; Mason, Mason, Walker & Hedrick, P.C., on
brief), for appellant.
(Richard B. Donaldson, Jr.; Justin M. Sizemore; Jones, Blechman,
Woltz & Kelly, P.C., on brief), for appellee.
Newport News Shipbuilding and Dry Dock Company (employer) appeals a decision of
the Workers’ Compensation Commission finding that (1) because employer did not seek timely
review, pursuant to Code § 65.2-706(A), of the deputy commissioner’s January 21, 2005
decision awarding Alonza Wilson (claimant) permanent partial disability (PPD) benefits, that
decision was final and not reviewable by the commission; (2) employer was responsible for
payment of a twenty-percent penalty on unpaid compensation pursuant to Code § 65.2-524; and
(3) employer was responsible to pay claimant’s attorneys’ fees in the amount of $1,000.
On appeal, the sole Question Presented by employer challenges the underlying merits of
the deputy commissioner’s findings in the January 21, 2005 opinion awarding claimant PPD
benefits. However, because employer failed to seek timely review before the full commission of
that decision, as the commission stated in its May 12, 2006 opinion, that decision is final.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Therefore, it is not subject to appellate review in this Court. See Code § 65.2-706; Boys & Girls
Clubs of Va. v. Marshall, 37 Va. App. 83, 85 n.1, 554 S.E.2d 104, 105 n.1 (2001) (issues not
properly preserved before the commission cannot be raised on appeal). Accordingly, we will not
consider the questions and arguments raised by employer in its brief related to the merits of the
commission’s award of PPD benefits to claimant.1
Employer includes an argument in its brief that the commission erred in assessing $1,000
in attorneys’ fees against it. However, employer did not raise that issue in its Questions
Presented. In addition, employer did not include a Question Presented or any argument with
regard to the commission’s assessment against employer of a twenty-percent penalty.
Accordingly, to the extent that employer argues those issues, we will not address them on appeal
as they were not part of the Questions Presented that were designated for appeal. See Rule
5A:20(c)-(e); Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31, 39 n.4, 542 S.E.2d
785, 789 n.4 (2001) (finding “an issue [was] not expressly stated among the ‘questions
presented,’ . . . we, therefore, decline to consider [it] on appeal”).
Based upon the foregoing reasons, we summarily affirm employer’s appeal. See Rule
5A:27. We grant claimant’s request for an award of attorneys’ fees and costs incurred in
connection with this appeal. Accordingly, we remand this case to the commission for it to
determine and enter an appropriate award of such attorneys’ fees and costs in favor of claimant.
Affirmed and remanded.
1
We note, as noted by claimant in his brief, employer does not address the commission’s
holding that employer’s challenges to the January 21, 2005 decision awarding claimant PPD
benefits were untimely, nor does employer attempt to explain why Code § 65.2-706 does not
preclude further review of the award. Instead, employer ignores the issue.
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