COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Humphreys and Millette Argued by teleconference

CITY OF NORFOLK SCHOOL BOARD MEMORANDUM OPINION ∗ BY v. Record No. 0253-08-1 JUDGE LeROY F. MILLETTE, JR. JULY 22, 2008 DIANNE MITCHELL

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Joan E. Mahoney, Deputy City Attorney (Bernard A. Pishko, City Attorney; Norfolk C ity Attorney’s Office, on brief), for appellant. Charlene A. Morring (Montagna, Klein, Camden LLP, on brief), for appellee.

City of Norfolk School Board (employer) appeals from a decision of the Workers’ Compensation Commission (commission) awarding benefits to Dianne Mitchell (Mitchell). The relevant issue on appeal is whether the fu ll commission erred in ruling that the deputy

commissioner found Mitchell was not te rminated for cause pursuant to Chesapeake & Potomac Tel. Co. v. Murphy , 12 Va. App. 633, 406 S.E.2d 190 (1990). For the following reasons, we affirm the decision of the commission. The partie s being familiar with the record below, we refer only to those fact s necessary to a dispos ition of this appeal. Supreme Court Rule 5A:18 governs appeals from the commission and states, in part, that “[n]o ruling of . . . the Virginia Workers’ Co mpensation Commission will be considered as a basis for reversal unless the objectio n was stated together with the grounds therefor at the time of the ruling . . . .” On appeal, this Court cons iders only those issues raised before the full

∗ Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - commission and properly app ealed to it from the deputy commissioner’s opinion. See TBC Corp. v. Stephens , 49 Va. App. 650, 658, 644 S.E.2d 84, 88 (2007) (citing Boys and Girls Club of Virginia v. Marshall , 37 Va. App. 83, 85 n.1, 554 S.E.2d 104, 105 n.1 (2001) (“[I]ssues which were not properly preserved before the co mmission cannot be raised on appeal.”)). While employer asserts on appeal that the commission erred in holding the deputy

commissioner found no termination for cause under Murphy , employer failed to assert a “termination for cause” objection upon its appeal to the full commission. 1 Murphy , 12 Va. App. 633, 406 S.E.2d 190. Indeed, the full commission noted employer’s error in this regard when it stated in its case decision, “The Deputy Co mmissioner found no termination for cause under C & P Telephone v. Murphy . . . because the claimant was no t engaged in selective employment

at the time of her termination. This finding was not appealed and is final .” (Emphasis added).

As the issue of termination for cause was neve r appealed to the full commission, we cannot now consider it on appeal. Thus, based on the finding that Mitchell was not terminated for cause

under Murphy , we are unable to consider employer’s re lated assignment of error that presumes

1 Employer’s two “Questions Presented” upon appeal to the full commission were as follows: May an employer demonstrate a constructive refusal of selective employment by a claimant under no restrict ions at the time of her termination for cause, by showing that it later would have made selective employment available to her but for her earlier termination? Must an employer prove it made an actual, bona fide offer of selective employment to an employee after she received work restrictions that she actually or constructi vely refused? (Emphasis added).- 3 - Mitchell was terminated for cause. 2 Therefore, we hold employe r’s arguments on appeal are defaulted and affirm the commission’s holding.

Affirmed.

2 Employer’s second “Question Presented” on ap peal to this Court is, “[w]hether the Commission erred in ruling that the employer could not prove a constructive refusal of selective employment by showing that it would have offered the claimant light duty work, but for her earlier termination for cause ?” (Emphasis added).