COURT OF APPEALS OF VIRGINIA
Present: Judges Russell, Malve aux and Senior Judge Clements Argued at Richmond, Virginia

TRICIA HAYES MEMORANDUM OPINION * BY v. Record No . 1610-18-2 JUDGE MAR Y BENNETT MALVEAUX APRIL 30, 2019 NOBILITY INVEST MENTS, LLC AND FLORIDA HOSPI TALITY MUTUAL INSURANCE

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Michael J. Beste (Reinhardt Harper Davis, PLC, on briefs), fo r appellant. Roberta Ann Perko (Christopher M. Kite; Lucas & Kite, PLC, on brief), for appellee.
Tricia Hayes (“claimant”) appeals a decision of the Virginia W orkers’ Compensation Commission (“the Commi ssion”) denying her claim for benefits. She argues the Commission erred in three ways: by not precluding Nobility Investments, L LC (“employer”) from arguing that climbing ladders was beyond the scope of her pre-injury jo b; in holding that she is able to return to her pre-injury job whe n she remains unable to performcertain tasks she performed prior to her injury; and in ho lding that several pr e-injury tasks whi ch she performed were beyond the scope of her pre-injury job duties. For the following reasons, we affirm the Commission’s decision.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - I. BACKGROUND “On appeal from a decision of the . . . Commission, the evidenc e 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 )). So viewed, the evidence established that claimant worked as a n ight auditor at employer’s hotel. During the night shif t on May 18, 2015, a guest complai ned about a beeping smoke detector in their room. Claiman t went to the room to remove th e device’s batte ry. While doing so, she fell off a ladder and sus tained an injury to her left k nee. Claimant received treatment fr om Dr. William Beach, who perform ed surgery on her left knee in August 2015. She returned to light-duty work in Decemb er 2015 and remained with employer until February 2016. Following a series of claims fil ed by claimant, and pursuant to an agreement between the parties , the Commission entered an agreed order on January 12, 2017. Under the terms of that order, the parties stipulated that clai mant sustained a compensable accident involving a left knee injury on May 18, 2015. Further , they agreed that a July 2016 functional capacity evaluation indicated a permanent partial di sability rating of twenty-five percent and released claimant to medium-duty work. The parties additionally stip ulated that Dr. Beach had adopted and affirmed the twenty-five percent disability rating and indicated claimant had reached maximum medical improvement as of July 26, 2016. The order also memorialized the parties’ agreeme nt that claimant was entitled to a lifetime medical award and payment of temporary total disab ility benefits, temporary parti al disability benefits, and permanent partial disability be nefits for certain finite period s. The subject of this appeal is cl aimant’s subsequent claim seeki ng a resumption of temporary total disability bene fits for her left knee injury be ginning July 10, 2017 and- 3 - continuing. 1 Employer defended the claim, i n part, by arguing that any res trictions on claimant’s work activities were consiste nt with her pre-injury job duties, and thus claimant is not entitled to payment of any lost wages. In deposition and hearing testimony, claimant testified about h er pre-injury job duties. She stated that as a night aud itor, she “took care of the [fron t] desk” by herself from 11:00 p.m. to 7:00 a.m. This entailed “tak[i ng] care of the customers as they came and went” and “tak[ing] care of the computer work.” There were no chairs at the front desk, but when customers were not around, claimant could sit i n an office behind the front de sk to “do other things,” including paperwork and other auditing work. Claimant testified that alt hough checking guests into and out of the hotel was the prim ary function of her job, she also “ha[d] to do” other tasks as well. These included helping to “st art up . . . the kitchen for the m orning” and restocking the hotel’s “sweet shop” and customer reward s center. While restocking, cl aimant had to crouch down to retrieve items from storage and then place them on shelves. Cl aimant also testif ied that prior to her accident, she had changed the batteries in smoke detectors “[m]any times” and was never told not to do so. Claimant stated that when she returned to work in December 2015 , she understood her work restrictions to include prohibitions on lifting or pulling more than twenty-five pounds, standing for longer than twenty- five minutes, or kneeling, squa tting, and “reaching up high.”

1 Claimant had previously filed a c laim for benefits in which sh e sought to add right knee and right leg injuries as compensable consequences of her accid ent. When she filed the claim at issue here, claimant initially s ought temporary total and tempo rary partial disability benefits beginning May 28, 2017 and continuing. A t a hearing before the deputy commissioner, claimant withdrew her claims for right l eg injuries and temporary partia l disability benefits. She proceeded on her right knee and temporary total disability bene fits claims after amending the date from which she sought tempor ary total disability benefits. The Commission majority held that claimant had failed to prove a compensable consequence inj ury to her right knee. Claimant did not appeal that decision, and m atters pertaining to her rig ht knee are not at issue in this appeal.- 4 - Claimant agreed with employer’s c ounsel that when she returned to work, employer accommodated and provided her with w ork within those restrictio ns. Claimant was moved from the night shift to daytime hour s, during which she was not the only front desk employee, and employer provided her with a chair at the front desk. Claimant testified that by us ing the chair, she could perform the essential functions of her job. When counsel for employer asked claimant whether, “from the standpoi nt of doing your pre[-]injury job, y ou could do it just as easily from the chair as not[,]” claimant replied, “Yes.” However, claiman t also testified that because of her work restrictions, there were ot her pre-injury tasks she could not have performed, including preparing for breakfast and res tocking the sweet shop and rewar d station. Raymond Ledo, the hotel’s general manager during claimant’s emp loyment, testified about claimant’s job duties. He stated that front desk staff w ere responsible for checking guests into and out of the hotel, answ ering telephone calls, and makin g reservations. In addition to these tasks, the night auditor wa s also responsible for process ing certain paperwork. Ledo noted that all of the job’s “essentia l functions” could be performed from computer terminals which were located at the front des k and in an adjacent office equipp ed with sitting desks. At the office terminals, claimant could both make reservations and check in g uests. Ledo also testified that the adjacent office contained chairs and was “always available” for use by the front desk staff and that during slow periods sta ff would “hang out [there] and . . . watch the camera and [when] they see people come in, they c ome up [front] right away and at tend to the guests.” Working at the front desk did not “necessarily mean . . . physically being up there,” because with “all the off time that [front desk staff] have in a shift they do sit back [ in the office] and they do have an option to sit and rest. They eve n eat back there.” When Ledo was asked whether claimant ever would have had to stand, or ever had stood, at the front desk f or more than twenty-five minutes at a time, Ledo replied, “maybe by choice.”- 5 - Ledo specifically denied that w orking in the kitchen and restoc king items were part of claimant’s job requirements. A “ breakfast team” would arrive a t the hotel at 5:00 a.m., and although night auditors with avail able time would “tend to get . . . started for them,” such conduct was not required. Had c laimant not assisted the kitche n staff, Ledo testified, she would not have been reprimanded for f ailing to do so. Likewise, rest ocking items was not one of claimant’s job requirements, a nd she would not have been reprim anded had she not engaged in such activity. Although Ledo “abso lutely” appreciated claimant ’s efforts, claimant “kind of initiated that” and simply “te nded to do it,” even though “[i]twasn’t anything that anyone ever told her to do.” Further, Ledo s pecifically denied that climbi ng ladders to remove smoke detector batteries was an essent ial function of claimant’s job; rather, “she just took it upon herself to do what she did.” Cla imant’s options when confronte d with a room problem were either to move the complaini ng guest to another room or to cont act the hotel’s on-call maintenance engineer. Ledo also de nied that working at the fro nt desk would require a person to lift more than twenty-five pounds. In addition to her testimony, claim ant also submitted her July 2016 functional capacity evaluation in support of her clai m. The evaluation indicated a twenty-five percent permanent impairment of claimant’s left kn ee and residual functional capa city limited to “performance of work with medium-light physical demand characteristics.” Becau se no formal job description had been provided for claimant’s position, the evaluation relie d upon published occupational reference works to “identify the essential job tasks and physic al demand characteristics associated with [claimant’s] premorbid job as a Night Auditor .” Based upon those sources, the evaluation concluded that wo rk as a night auditor entails assisting hotel custome rs and reconciling the hotel’s b ooks during the evenings. The Night Auditor is responsible for auditing rooms being occupied and determin ing availabilit y at the hotel. Maintaining attractive and orde rly desk and lobby areas is also- 6 - required. Performance of the esse ntial job tasks requires freq uent sitting, handling and fingeri ng. Occasional stooping, walking and standing are also be necessary [ sic ]. Occasional lifting and carrying of weight loads of up to 20 pounds is necessary with occasional pushing and pulling of rolling carts. The job is identified as a light physical d emand occupation based on the U .S. Department of Labor criteria. The evaluation concluded that clai mant’s residual functional ca pacity was adequate for performance of her pre-injury j ob as a night auditor provided that certain recommended restrictions could be “integrat ed into her job description.” T hose restrictions included prohibitions on kneeling, squa tting, and crouching. In additio n, claimant was not to walk for more than fifteen minutes or sta nd for more than twenty-five mi nutes at a time; lift more than thirty pounds or carry more thantwenty-five pounds; climb stai rs with loads; or push or pull more than ninety-two pounds or s ixty pounds, respectively. Claimant also submitted medical records from Dr. Beach, includi ng treatment notes from office visits on July 26 and October 11, 2016. In notes from the former visit, Beach acknowledged claimant’s permanen t partial disability rating and stated that claimant could “work within the[] parameters” outlin ed by the functional capacity ev aluation. In notes from the latter visit, Beach indicated that he had provided claimant with docum entation for her to work subject to the restrictions specified i n the functional capacity evaluation and that she should avoid any climbing, squatting, stooping, and kneeling. The deputy commissioner denied c laimant’s claim after finding t hat any restrictions placed upon her did not prevent he r from doing her pre-injury j ob. Claimant requested review by the full Commission. On review, a majority of the Commission a ffirmed the deputy commissioner’s decision. The C ommission noted the restrictions described in the functional capacity evaluation and Dr. Beach’s July 26 and October 11, 201 6 treatment records. Relying upon Ledo’s testimony, including his statements that claimant w as not required to change- 7 - batteries, restock the sweet shop, or assist in preparing for b reakfast, the Commission concluded that although it “recognize[d]” th at “claimant’s performance of the extra duties was for [employer’s] benefit,” it was “notconvinced” that claimant’s p re-injury job position “required these particular tasks.” Cons equently, the Commission found th at “claimant’s work restrictions do not prevent her from preform ing her pre-injury work.” Claimant appealed the Commissi on’s decision to this Court.
II. ANALYSIS A. Issue Preclusion Claimant argues the Commissi on erred when it did not preclude e mployer from arguing that her pre-injury job tasks e xcluded climbing ladders. Claim ant notes the Commission’s agreed order of January 12, 2017, whi ch states that she sustain ed a compensable accident involving a left knee injur y on May 18, 2015. She also notes t hat to be compensable under the Virginia Workers’ Compensation A ct (“the Act”), an injury by ac cident must arise out of and in the course of the claimant’s employment. See Code § 65.2-101. Thus, claimant argues, since she was climbing a ladder when she suffered her injury by accid ent, climbing ladders was necessarily “adjudicat ed” as a required condition of her pre-in jury job when the Commission “determined that her accident ‘arose out of’ her employment.” Consequently, claimant maintains that under principles of issue preclusion, employer should not have been permitted to argue that climbing ladders was not among he r pre-injury work duties. Issue preclusion, or collateral estoppel, is a species of res judicata , AKAK Corp. v. Commonwealth, 38 Va. App. 634, 638-39 ( 2002), and “[t]he doctri ne of res judicata is applicable to decisions of deput y commissioners and the full [C ]ommission,” Tyco Elecs. v. Vanpelt, 62 Va. App. 160, 170 (2013) ( quoting Rusty’s Welding S erv., Inc. v. Gibson, 29 Va. App. 119, 128 (1999) ( en banc )). “Issue preclusion bars ‘su ccessive litigation of an issue of- 8 - fact or law actually litigate d and resolved in a valid court de termination essential to the prior judgment,’ even if the issue r ecurs in the cont ext of a differe nt claim.” Starbucks Coffee Co. v. Shy, 61 Va. App. 229, 241 (2012) (quoting Brock v. Voith Siemen s Hydro Power Generation, 59 Va. App. 39, 45 (2011)). See also AKAK, 38 Va. App. at 638-39. “[T]he relationship of the [C]ommission to an award is thatof a court to a judgment,” and thus, “[a]n order by the [C]ommission awarding benefits t o a claimant by agreement of th e parties is a final determination of the matters which were actually, or might have been , litigated in that suit.” Advance Auto and Indem. Ins. C o. of N. Am. v. Craft, 63 Va. App . 502, 515-16 (2014) (first and third alterations i n original) (first quo ting Brock, 59 Va. App . at 47; then quoting Shy, 61 Va. App. at 240). We are unpersuaded by claimant’s ar gument. Claimant is correctin noting that the agreed order states that she s uffered a compensable injury by a ccident on May 18, 2015, and that the order thus provides that he r injury arose out of and in the course of her employment. She is also correct in noting that she w as climbing a ladder when she suffered the injury by accident which was the basis for the Comm ission’s award of benefits. Ho wever, claimant is incorrect in arguing that these facts, take n together, amount to an adjudica tion that climbing ladders was a required condition of her pr e-injury employment. To be compensable under the Act , an injury must “aris[e] out of and in the course of” the injured employee’s employme nt. Code § 65.2-101; see also Vital Link, Inc. v. Hope, 69 Va. App. 43, 54 (2018). The expres sions “‘[a]rising out of’ an d ‘in the course of’ [employment] are used conjunctively and are not synonymous.” Va. Polytechni c Inst. and St. Univ. v. Wood, 5 Va. App. 72, 75 (1987) (quoting C onner v. Bragg, 203 Va. 204, 2 08 (1962)). The phrase “arising out of” refers to the inj ury’s nature or cause, while the phrase “in the c ourse of” refers to “the time, place and circumstances under which the accident occ urred.” Id. at 75-76. “[A]n- 9 - accident occurs in the ‘course of employment’ when it takes pla ce within the period of employment, at a place where the employee may be reasonably exp ected to be, and while he is reasonably fulfilling the duties of his employment or is doing something which is reasonably incidental thereto.” Clift on v. Clifton Cable Contracting, L.L .C., 54 Va. App. 532, 539 (2009). With respect to activities whic h are reasonably incidental to f ulfilling employment duties, if an employee’s “voluntary act . . . whi ch causes an injury is suffi ciently related to what [he] is required to do in fulfilling his c ontract of service, or is one in which someone in a like capacity may or must do in the interest of his employer’s business,” his right to receive compensation will not be impaired even though he was not required to perform the act. Lucas v. Lucas, 212 Va. 561, 564 (1972) (quoting 7 Sneider, Workmen’s Compensation § 16 62(a) (1945)). Thus, compensable injuries by accident that occur in the course of em ployment may result either from a claimant’s acts performed in f ulfillment of their required jo b duties, or from their voluntary acts which are reasonably related to the fulfillment of those r equired job duties. In the instant case, it is unc ontested that the act of climbing a ladder to remove a smoke detector battery was the act out of which claimant’s injury aro se— i.e. , that it was causally related to her injury. Further , it is clear from th e Commission’s agre ed order awarding benefits that that act occurred in the course of cla imant’s employment. However, the order is silent on whether that act occurred in the course of claimant’s employment becaus e it was one of claimant’s required job duties, or because i t was a voluntary act that was reasonably incidental to the performance of her required j ob duties. Consequently, it canno t be said that the agreed order “adjudicated” ladder climbing as a required condition of claima nt’s pre-injury job. Absent such an adjudication, we hold that t he Commission did not err when i t did not preclude employer from arguing that claimant’s pre-injury job tasks excluded climbing ladders.- 10 - B. Claimant’s Ability to Retur n to her Pre-injury Employment Claimant further argues the Co mmission erred in holding that sh e is able to return to her pre-injury job even though she rem ains unable to perform certai n tasks which she performed prior to her injury. Specifica lly, she contends that climbing ladders to change smoke detector batteries, helping to prepare for breakfast, squatting, crouchi ng, and kneeling to restock the hotel sweet shop, and standing for longer than twenty-five minutes we re required tasks of her pre-injury employment. Because she remains restricted from per forming those tasks, claimant argues, she is unable to return to her pre-injury job and is thus entitled to com pensation under the
Act. “A [claimant] seeking workers’ compensation bears the burden of proving his disability and the periods of that disability,” and whether a claimant suf fered a continuing disability is a question of fact. Vital Link, 69 V a. App. at 64. “In a worker s’ compensation case, ‘[t]he threshold test for compensabilityis whether the employee is ‘a ble fully to perform the duties of his pre[-]injury employment. ’” Clinchfield Coal Co. v. Parrott , 22 Va. App. 443, 446 (1996) (quoting Celanese Fibers Co. v. Johnson, 229 Va. 117, 120 (1985 )). “[W]e are bound by the [C]ommission’ s factual findings where th ose findings are supported by credible evidence in the record,” Pruden v. Plasse r Am. Corp., 45 Va. App. 566, 574 (2005), and “[t]he fact that th ere is contrary evidence in the record is of no consequence,” Herbert Clements & Sons, Inc. v. Harris, 52 Va. App. 447, 452 ( 2008) (quoting Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 673 (1998)). “In determining whether credible evidence exists, the appellate court does not ret ry the facts, reweigh the prepo nderance of the evidence, or make its own determination of the credi bility of the witnesses.” Sm ith-Adams v. Fairfax Cty. Sch. Bd., 67 Va. App. 584, 590 (2017) (quoting W agner Enters., Inc. v. Brooks, 12 Va. App. 890, 894 (1991)).- 11 - We are not persuaded by claimant’s argument. The Commission fo und that none of the tasks specified by claimant were requirements of her pre-injuryjob as a night auditor, and credible evidence in the r ecord supports that finding. With respect to the first three tasks described by claimant—cli mbing ladders to change smoke detector batteries, helpi ng to prepare for breakfast, and squatting, crouching, and kneeling to restock the hotel sweet shop—the hotel’s general manager, Ra ymond Ledo, specifically testified that claimant was not r equired to perform those tasks and would not have been sanctioned had she not performed them. Further, the functional capacity evaluation submitted by claimant did not identify them as essential job tasks of a nigh t auditor. With respect to standing for l onger than twenty-five minutes, L edo testified that the essential functions of claimant’s night auditor job could be pe rformed at computer terminals located at the front desk and in an adjacent office which conta ined sitting desks. At the office terminals, claimant could both c heck in guests and make reserva tions. Ledo stated that the office contained chairs and was always available for use by the front desk staff, who would “hang out” and even eat there during slow pe riods. Staff could monitor th e hotel’s video cameras from the office, and if they saw a guest approach the front desk, they c ould “come up [front] right away” and attend to them. Ledo made cl ear that working at the front desk did not continuously require “physically being up there,” because there was “off time” durin g shifts when staff had “an option to sit and rest” and did sit and r est in the office. Claimant herself testified she could sit in the office to do various things includ ing paperwork and other audit ing tasks. Further, when Ledo was asked whether claimant woul d ever have had to stand or did stand at the front desk for more than twenty-five minutes at a time, he replied, “maybe by choic e.”- 12 - Based upon the record, we conclude the Commission did not err i n finding that the tasks described by claimant were not r equired by her pre-injury job, and thus that her restriction from performing those tasks does not pr event her from performing her pre-injury work. C. Employer’s Acquiescence to a nd Benefit from Claimant’s Voluntary Acts Claimant also argues that eve n if employer did not require her to stand for longer than twenty-five minutes, climb la dders, or squat, crouch, and kneel to restock the hotel sweet shop, the Commission erred in holding t hat these tasks were not part of her pre-injury job duties. She contends that such tasks shoul d have been considered job duties for purposes of determining compensability because employer knowingly acquiesced to and ben efitted from them. As noted above, compensable injuries may arise from acts volunt arily performed by an employee if those acts are reason ably incidental to the employe e’s fulfillment of their job duties. See Clifton, 54 Va. App. at 539; Lucas, 212 Va. at 564. Here, the Commission, while it “recognize[d]” that claimant’s “performance of the extra duties was for [employer’s] benefit,” ruled only that it was unconvince d that claimant’s pre-injury j ob position “ required these particular tasks.” (Emphas is added). Thus, the Commission onl y made a finding with respect to what pre-injury tasks were requ ired of claimant by employer. I t did not make a finding with respect to whether any non-requi red tasks performed by claimant were sufficiently incidental to the performance of her require d work duties that they could pot entially support a compensation award for any resulting injuries . “[O]n appeal to this Court, [where] we have no [C]ommission ruling to review on the issue,” appellate review is barred by R ule 5A:18. Mouhssine v. Crystal Cty. Laundry, 62 Va. App. 65, 82 (2013) (quoting Hodnett v. Sta nco Masonry, Inc., 58 Va. App. 244, 253 (2011)). See also Rule 5A:18 (“No ruling of the . . . Commission will be considered as a basis for reversal unless a n objection was stated with reason able certainty at the time of the ruling.”). Consequently, because the Commission never ruled onthe specific legal issue now- 13 - presented by claimant, we will not consider that issue. Furthe r, although Rule 5A:18 contains exceptions for good cause or to meet the ends of justice, claim ant does not argue that those exceptions apply and this C ourt will not invoke them sua sponte . See Friedman v. Smith, 68 Va. App. 529, 544 (2018).
III. CONCLUSION We hold that the Commission did no t err in not precluding emplo yer from arguing that climbing ladders was beyond the sco pe of claimant’s pre-injury job. Further, the record supports the Commission’s finding that cl aimant’s work restrictions do n ot prevent her from performing her pre-injury work as a night auditor. Consequently, we affirm the Commission’s decision denying claimant’s claim for temp orary total disability benefit s. Affirmed.