Terrence Allen McCrady v. Valley Redi Mix Co., Inc.

COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Beales and Senior Judge Fitzpatrick

TERRENCE ALLEN McCRADY
MEMORANDUM OPINION*
v. Record No. 0571-06-3 PER CURIAM
NOVEMBER 7, 2006
VALLEY REDI MIX CO., INC. AND
COMPANION PROPERTY & CASUALTY
INSURANCE CO.

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

(Terrence A. McCrady, pro se, on brief).

(Frederick T. Schubert; Angela C. Fleming; Midkiff, Muncie &
Ross, P.C., on brief), for appellees.

Terrence Allen McCrady (claimant) appeals a decision of the Workers’ Compensation

Commission denying his claim for benefits. In his claim, appellant alleged he sustained an

injury by accident on September 23, 2003, when he was assaulted by his supervisor, which

resulted in his emotional distress.1 In its February 7, 2006 opinion, the commission ruled that

(1) even accepting as accurate claimant’s testimony and evidence regarding the September 23,

2003 altercation, he failed to prove the type of “shock or fright” necessary for establishing an

emotional injury claim associated with that incident; and (2) to the extent claimant sought

benefits associated with his termination in December 2003, no such benefits were awardable as

purely psychological disability resulting from disagreements over managerial decisions and

*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Claimant stipulated before the commission that he was not claiming physical injury.
conflicts with supervisory personnel resulting in purely psychological disability are not

compensable.

On appeal, claimant contends (1) the commission erred in denying him a remedy where

his civil suit was barred under the exclusivity provisions of the Workers’ Compensation Act;

(2) the deputy commissioner had an obligation to ask him at the hearing whether he experienced

“sudden shock or fright”; (3) it was not mandatory for him to formally aver “sudden shock or

fright” in his claim for it to be compensable; (4) he was not required to formally request benefits

associated with an occupational disease as opposed to an injury by accident, in order to be

compensated under the Act; and (5) he was not required to prove that he was “medically

removed from work to receive compensation,” where he was unemployed.

Claimant did not preserve questions (1) and (2) for appellate review. With respect to

question (1), while claimant raised this argument before the full commission on review, the

commission did not address it in its February 7, 2006 opinion and claimant failed to obtain any

ruling on this issue thereafter. He did not file a motion for reconsideration or rehearing so as to

allow the commission the opportunity to address that issue and to correct any perceived error.

Accordingly, we are barred from considering it for the first time on appeal. See Williams v.

Gloucester Sheriff's Dep’t, 266 Va. 409, 411, 587 S.E.2d 546, 548 (2003); Rule 5A:18.

With respect to question (2), we have reviewed the record and the citations provided by

claimant as to where he preserved this question for appellate review, but have not found that the

question was raised before the commission. Thus, we will not consider it for the first time on

appeal. See Rule 5A:18.

Although Rule 5A:18 allows exceptions for good cause or
to meet the ends of justice, appellant does not argue that we should
invoke these exceptions. See e.g., Redman v. Commonwealth, 25
Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (“In order to avail
oneself of the exception, a defendant must affirmatively show that a
miscarriage of justice has occurred, not that a miscarriage might
-2-
 have occurred.” (emphasis added)). We will not consider, sua
sponte, a “miscarriage of justice” argument under Rule 5A:18.

Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc).

Assuming without deciding that claimant has preserved the issues raised by questions (3)

and (4), we have reviewed the record and the commission’s opinion and find that this appeal is

without merit. Accordingly, we affirm for the reasons stated by the commission in its final

opinion. See McCrady v. Valley Redi Mix Co., Inc., VWC File No. 220-62-75 (Feb. 7, 2006).

We dispense with oral argument and summarily affirm because the facts and legal contentions

are adequately presented in the materials before the Court and argument would not aid the

decisional process. See Code § 17.1-403; Rule 5A:27.

Finally, in light of our summarily affirming the commission’s opinion with respect to the

compensability issues, we need not address the disability issue raised by claimant in question (5).

Affirmed.

-3-