Carlene Wynn v. Department of Military Affairs/Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA

Present: Judges O’Brien, Russell and Senior Judge Clements
UNPUBLISHED

Argued by teleconference

CARLENE WYNN
MEMORANDUM OPINION* BY
v. Record No. 0640-19-2 JUDGE JEAN HARRISON CLEMENTS
DECEMBER 10, 2019
DEPARTMENT OF MILITARY AFFAIRS/
COMMONWEALTH OF VIRGINIA

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

Carlene Wynn, pro se.

Adam L. Katz, Senior Assistant Attorney General (Mark R. Herring,
Attorney General; Samuel T. Towell, Deputy Attorney General;
Tara Lynn R. Zurawski, Section Chief, on brief), for appellee.

Carlene Wynn (claimant) appeals the Workers’ Compensation Commission’s denial of

her claim for benefits based on an injury by accident, occupational disease, or ordinary disease of

life resulting from exposure to mold at her workplace. We do not reach the merits of her claim,

however, because we find that she failed to comply with the applicable Rules of Court.

BACKGROUND1

Claimant is employed with the Department of Military Affairs (employer), located at Fort

Pickett in Blackstone, Virginia. She testified at a hearing before a deputy commissioner that

after she was relocated from the headquarters building to building 1695 in June 2016, she

experienced a runny nose, watery eyes, headaches, wheezing, and fatigue. She had received

*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
We view the facts in the light most favorable to employer, the party who prevailed
below. See Hess v. Virginia State Police, 68 Va. App. 190, 194 (2017).
medical treatment for sinus problems before moving to building 1695, and her primary care

doctor told her on June 17, 2016, that her runny nose was “just sinus.”

According to claimant, on July 16, 2018, she saw mold growing on the wrist and arm

pads of her computer and also on one of her chairs. She said that she previously had seen raw

sewage on the floor of the building and felt that the “environment just was unsafe.” She reported

the mold to her employer and was seen by her primary care doctor on July 30, 2018, and by a

Workers’ Compensation Commission panel physician on August 1, 2018. Claimant was referred

to an allergist and was diagnosed with asthma and allergies to both indoor and outdoor mold.

The allergist reported that it was “possible” the mold exposure at claimant’s workplace

contributed to her respiratory symptoms. The doctor also said that although claimant’s

symptoms were “exacerbated by exposure to mold,” it was “difficult to definitely connect the

molds [for which claimant had a positive skin reaction] with the exposure history.”

Claimant was moved to another building in July 2018, but her duties required her to

return to building 1695 several times a week. She said that she experienced breathing issues

whenever she was in building 1695.

Employer asked an environmental scientist to inspect building 1695. The scientist made

a visual inspection on August 8, 2018, and took numerous air samples and temperature and

humidity readings. He did not observe any mold, and he determined the building’s humidity was

so low there was no likelihood mold would grow. He noted that the air samples showed a small

amount of a common type of mold, but he did not consider the amount significant and said that it

could have been transplanted from another location. As a preventive measure, the scientist

suggested that an “air handling unit” be run inside the office to clean out the mold spores that

had been found.

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 Claimant filed for medical benefits and permanent partial disability benefits on August

14, 2018. The deputy commissioner held a hearing on December 3, 2018, and denied her claim.

On April 1, 2019, the Commission affirmed the deputy commissioner’s decision, finding that

claimant had failed to prove that she had suffered an injury by accident because she had

experienced sinus symptoms for two years before she saw mold in her office on July 16, 2018.

The Commission also found that the equivocal medical evidence did not establish that claimant

had suffered a compensable ordinary disease of life or an occupational disease as a result of mold

exposure because the evidence “did not sufficiently relate the claimant’s conditions to her work

environment,” and the “mere aggravation” of her respiratory symptoms was not compensable.2

ANALYSIS

Claimant filed her opening brief in this Court on June 4, 2019, but she failed to file an

appendix, as required by Rule 5A:25(a), which provides that an appellant “shall file” an

appendix “in all cases no later than the time of filing [her] opening brief.” The Court ordered

claimant to show cause on or before July 13, 2019, regarding why the appeal should not be

dismissed for failure to file an appendix. The Court also directed claimant to file an amended

opening brief that complied with the requirements set forth in Rules 5A:4, 5A:19, 5A:20, and

5A:24. The Court later granted claimant an extension of time until September 15, 2019, to

respond to the show cause order and file an amended brief and appendix. Claimant filed her

amended brief and appendix on August 30, 2019. This Court made a preliminary ruling that the

appeal could proceed but noted in its order issued on September 11, 2019, that the ruling did not

bind the panel that ultimately considered the case.

2
We note that a claimant always bears the burden of proof and must establish all facets
of the claim. See Arthur Larson et al., Larson’s Workers’ Compensation Law § 130.06(3)(a)
(2019). Further, “[d]ecisions of the commission as to questions of fact, if supported by credible
evidence, are conclusive and binding upon this Court.” VFP, Inc. v. Shepherd, 39 Va. App. 289,
292 (2002) (quoting WLR Foods v. Cardosa, 26 Va. App. 220, 230 (1997)).
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 Even though appellant is acting pro se, she still “must comply with the rules of court.”

Francis v. Francis, 30 Va. App. 584, 591 (1999); see Townes v. Commonwealth, 234 Va. 307,

319 (1987) (holding that issues the pro se defendant had not preserved at trial were barred on

appeal, as a pro se litigant “is no less bound by the rules of procedure and substantive law than a

defendant represented by counsel” (quoting Church v. Commonwealth, 230 Va. 208, 213

(1985))); see also McNeil v. United States, 508 U.S. 106, 113 (1993) (holding that claimant’s

suit under the Federal Tort Claims Act was properly dismissed for failure to exhaust

administrative remedies, as required under the Act, and stating that “we have never suggested

that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by

those who proceed without counsel”).

In addition to not timely filing the appendix, claimant also failed to comply with other

requirements of Rule 5A:25. The appendix claimant submitted has 114 pages, but the pages are

not numbered individually and sequentially. Rather, she grouped the items she included by

category and numbered only each category. Claimant included only part of the transcript of the

hearing before the deputy commissioner and included other items that were not considered by the

Commission when it made its decision and are not properly part of the record on appeal. 3

Claimant’s amended opening brief cured some of the deficiencies in her initial opening

brief, but the brief still contains significant violations of Rule 5A:20. The brief does not comply

with Rule 5A:20(c), which requires that the assignments of error noted in the brief address the

rulings of the Commission that claimant is challenging and cite to the record where the claims

were preserved. Claimant lists sixteen items as “assignments of error,” but rather than

specifically identifying the alleged erroneous rulings of the Commission, claimant sets forth

3
On October 31, 2019, this Court denied claimant’s petition for a writ of certiorari to
include those items in the record.
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argumentative statements espousing her view that she should not have been denied benefits.4 As

the appellant, claimant must “lay [her] finger on the error” so that opposing counsel and the

Court know the grounds on which she “intends to ask a reversal of the judgment, and to limit

discussion to these points.” Carroll v. Commonwealth, 280 Va. 641, 649 (2010) (quoting Yeatts

v. Murray, 249 Va. 285, 290 (1995)).

Liberally construed, five of claimant’s “assignments of error” arguably address rulings of

the Commission. In assignments three and thirteen, claimant contends that the Commission

erroneously referred to her condition as “allergic rhinitis” rather than “asthma.” In assignments

nine and fourteen, she asserts that the Commission failed to address her claim that employer gave

her misleading information about the payment of her medical expenses. In assignment sixteen,

she states that the Commission’s April 1, 2019 opinion adopted the deputy commissioner’s

decision without considering the documents that she submitted in seeking review by the full

Commission.

However, claimant provides no governing standard of review for the assignments of error

and the “argument” section of her brief contains no principles of law or authorities relevant to

workers’ compensation. Rather, she discusses landlord-tenant law, property damage, and

personal injury based on mold in military housing. She concludes by asserting a lack of due

process and a violation of statutes and administrative regulations.5 Thus, the brief does not

comply with Rule 5A:20(e).

“Unsupported assertions of error do not merit appellate consideration.” Fadness v.

Fadness, 52 Va. App. 833, 850 (2008) (quoting Jones v. Commonwealth, 51 Va. App. 730, 734

4
Further, two of the claims rely on materials that were not before the Commission when
it decided the case and are not part of the record.
5
Claimant did not make the same arguments before the Commission and cannot raise
them for the first time on appeal. See Rule 5A:18.
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(2008)). It is incumbent upon a claimant who asserts that the Commission erred “to present that

error to us with legal authority to support [her] contention.” Ceres Marine Terminals v.

Armstrong, 59 Va. App. 694, 708 (2012) (quoting Fadness, 52 Va. App. at 851). “[I]t is not the

function of this Court to ‘search the record for error in order to interpret the appellant’s

contention and correct deficiencies in a brief.’” West v. West, 59 Va. App. 225, 235 (2011)

(quoting Buchanan v. Buchanan, 14 Va. App. 53, 56 (1992)).

Rules of Court are not mere “suggestions,” and all litigants are expected to follow them.

Bartley v. Commonwealth, 67 Va. App. 740, 746 (2017). We find that claimant’s failure to

adhere to the applicable Rules of Court is significant, and thus we hold that she has waived her

claims on appeal. See, e.g., Atkins v. Commonwealth, 57 Va. App. 2, 20 (2010). See also Rule

5A:1A (stating that an appeal may be dismissed for failure to comply with the Rules of Court).

CONCLUSION

Because we find that the claims raised on appeal are waived, we affirm the ruling of the

Commission.6

Affirmed.

6
We also deny claimant’s request to strike employer’s brief.
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