COURT OF APPEALS OF VIRGINIA

Present: Judges Annunzia ta, Frank and McClanahan Argued at Chesapeake, Virginia

DENNIS R. BYRD MEMORANDUM OPINION ∗ BY v. Record No. 2346-03-1 JUDGE ELIZABETH A. McCLANAHAN APRIL 20, 2004 OASIS SERVICES, INC. AND HARTFORD FIRE INSURANCE COMPANY

FROM THE VIRGINIA WORKER S’ COMPENSATION COMMISSION Gerald G. Poindexter for appellant. William C. Walker (Donna White Kearney; Kevin D. Sharp; Taylor & Walker, P.C., on brief), for appellees.

Dennis R. Byrd (claimant) appeals from a decision of the Virginia Workers’ Compensation Commission determini ng that his injury did not arise out of his employment. Claimant raised five questions on appeal: (1) wh ether claimant suffered an injury by accident in the course of his employment; (2) whether a circ umstance described in the record bars claimant from compensation under Code § 65.2-306, or any relevant provisi on of the Workers’ Compensation Act (“Act”); (3) whether there is any reason claimant ’s accident is not compensable; (4) whether the commission’s in terpretation of the Act constitutes denial of claimant’s due process and equal protection rights under the Virginia and United States Constitutions; and (5) whether the denial of comp ensation to claimant is consistent with the

∗ Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - purpose of the Act. 1 For the reasons that follow, we c onclude that the record supports the commission’s decision, and affirm. I. Background “On appeal, ‘we view the evidence in the li ght most favorable to the prevailing party’

before the commission.” Clinchfield Coal Co. v. Reed , 40 Va. App. 69, 72, 577 S.E.2d 538, 539 (2003) (citing Tomes v. Ja mes City (County of) Fire , 39 Va. App. 424, 429, 573 S.E.2d 312, 315 (2002)). Claimant was employed as a truck driver by Oasis Services of Smithfield, Virginia. Oasis operates a commercial laundry for manufactu ring plants in Tidewater, Virginia. Six mornings a week, starting at 3:00 a.m., claimant drove between Smithfield and Tidewater making deliveries and pickups. One morning, wh ile he was returning from Tidewater, he experienced an accident in his truck. Claimant suffered multiple injuries from the accident.

The matter was heard ore tenus by a deputy commissioner, at which claimant testified.

Oasis offered no witnesses. Claimant does not remember how the accident transpired, where it occurred, or any knowledge of the facts surr ounding the accident. Claimant does not know whether he lost consciousness, suffered a seiz ure or fell asleep. He has no recollection of speaking to the police following the accident.

1 Claimant has waived appellate review of que stions two, four and five. “The Court of Appeals will not consider an argument on appeal which was not presented to the trial court.” Ohree v. Commonwealth , 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998) (citing Jacques v. Commonwealth , 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991) (citing Rule 5A:18)). The rule applies to all type s of cases, including those with consti tutional rights at issue. Upon our review of the record, appellant did not present question two re lative to Code § 65.2-306 to the trial court. Questions four and five were first raised in claima nt’s notice of appeal, which was filed on September 10, 2003. Listing an issue in a notice of appeal does not properly bring the issue to the trial court’s attention or preserve the issue for appeal. See Rule 5A:18. Accordingly, Rule 5A:18 bars our consideration of these quest ions on appeal. Moreover, the record does not reflect any reason to invoke the good cause or ends of justice exceptions. See id.- 3 - Claimant acknowledged that he is a diabetic , but that he had no history of blackouts or

seizures. He testified that he took his medicatio n on the morning of the accident and that he felt

“fine” before the accident. Claimant stated: [T]he doctor said my sugar level wa s fine. . . . According to the lab test there [were] no signs of low suga r or none of that kind of stuff. He said it had to be low sugar or something like that if you blacked out or something, if that happe ned, but he said there were[] no signs of that. The deputy commissioner found that clai mant did not prove that he suffered a compensable injury by accident arising out of and in the course of his employment as contemplated by the Act, and denied the clai m. Upon a request for review by the full commission, the deputy commissi oner’s decision was affirme d. This appeal followed. II. Analysis “In order to establish entitlement to compen sation benefits, the claimant must prove, by a preponderance of the evidence, an injury by accident which arose out of and in the course of his employment.” Classic Floors, Inc. v. Guy , 9 Va. App. 90, 95, 383 S.E.2d 761, 764 (1989) (citation omitted). Unless the evidence carried that burden of proof as a matter of law, the commission’s findings are bindi ng and conclusive upon us. See Tomko v. Michael’s Plastering

Co. , 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970). A claimant who suffers an unexplained acci dent on the job and cannot recall how the accident occurred is not entitled to the presumpti on that the injury arose out of his employment. Pinkerton’s, Inc. v. Helmes , 242 Va. 378, 381, 410 S.E.2d 646, 648 (1991). 2 In an unexplained

2 Claimant argued that the case at bar is sim ilar to that of Spec ht v. Sisson Excavating, Inc. , VWC File No. 188-93-26 (April 23, 1999). That workers’ compensation case addresses an idiopathic condition that resulted in an accident. That opinion is non-binding on this Court and, therefore, we decline to consider it. Further, we do not address whethe r an idiopathic condition in an automobile accident is compensable. See Immer & Co. v. Brosnahan , 207 Va. 720, 152 S.E.2d 254 (1967); Virginia De p’t of Transp. v. Mosebrook , 13 Va. App. 536, 413 S.E.2d 350 (1992).- 4 - accident case in Virginia, a claimant must prove by a preponderance of the evidence that the accident “arose out of” the employment by esta blishing a causal connecti on between his or her employment and the accident. See PYA/Monarch and Reliance Ins. Co. v. Harris , 22 Va. App. 215, 224, 468 S.E.2d 688, 692 (1996). Claimant suggests that either his diabetic condition caused him to black out, or he fell asleep. However, he fails to provide any eviden ce that either of these conditions were causally connected to his employment. In fact, claimant ’s testimony supports neithe r of these theories.

Claimant said he took his medication and that his doctor told him that his sugar level was fine. He also testified that he felt “fine” on the morning of the accident. He could not trace the accident to any condition or risk related to his employment.

III. Conclusion The record supports the commi ssion’s findings. In the abse nce of a showing that the injuries “arose out of” his employment, Byrd ’s claim for workers’ compensation benefits must be denied. Based upon this record, we hold that claimant failed to prove as a matter of law that his injury arose out of his employment. Accordingl y, we affirm the commission’s decision to deny benefits.

Affirmed.