FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Joseph F. Cunningham; Laura J. Johnston; Robert J. Gastner; Cunningham & Associates, PLC, on briefs), for appellant.
(Kenneth T. Cuccinelli, II, Atttorney General; Wesley G. Russell, Jr., Deputy Attorney General; Peter R. Messitt, Senior Assistant Attorney General; Scott John Fitzgerald, Senior Assistant Attorney General, on brief), for appellee.
Present: Judges Petty, Chafin and Senior Judge Aunnunziata.
MEMORANDUM OPINION [*]
Balwant Singh Goraya (claimant) appeals a July 26, 2013 decision of the Workers' Compensation Commission affirming a deputy commissioner's letter ruling concluding claimant failed to request a review of a June 7, 2011 deputy commissioner decision denying his claim for permanent total disability benefits. Claimant contends the commission "violated [his] due process rights by failing to provide him with adequate notice of its adverse decision with respect to his request for permanent total disability benefits."
We have reviewed the record and the commission's opinion and find that this appeal is without merit.
In its July 26, 2013 opinion, the commission affirmed the deputy commissioner's conclusion that claimant had failed to request a review of the deputy commissioner's June 7, 2011 decision.
At no point did claimant argue before the commission, as he now does on appeal to this Court, that he was denied due process by not being provided adequate notice of the deputy commissioner's adverse decision. He never alleged a due process violation and did not challenge the statutes governing the commission's dissemination of decisions.
Under Rule 5A:18,
No ruling of . . . the Virginia Workers' Compensation Commission will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice.
"The primary function of Rule 5A:18 is to alert the [commission] to possible error so that the [commission] may consider the issue intelligently and take any corrective actions necessary to avoid unnecessary appeals [and] reversals . . . ." Martin v. Commonwealth, 13 Va.App. 524, 530, 414 S.E.2d 401, 404 (1992) (en banc) (citing Campbell v. Commonwealth, 12 Va.App. 476, 480, 405 S.E.2d 1, 2 (1991) (en banc)). Here, the commission was not provided the opportunity to consider the arguments claimant now makes on appeal.
In his reply brief, claimant asserts we should address this issue under the "ends of justice" exception to Rule 5A:18.
"Rule 5A:18 allows exceptions for good cause or to meet the ends of justice . . . ." Edwards v. Commonwealth, 41 Va.App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc). "[T]he ends of justice exception is narrow and is to be used sparingly" by the appellate court. Brown v. Commonwealth, 8 Va.App. 126, 132, 380 S.E.2d 8, 11 (1989). "In order to avail [oneself of the exception, ] the [claimant must] affirmatively show that 'a miscarriage of justice has occurred, not . . . that a miscarriage might have occurred' [thus requiring] that the error be clear, substantial and material." Id. (quoting Mounce v. Commonwealth, 4 Va.App. 433, 436, 357 S.E.2d 742, 744 (1987)). In applying this exception, the Supreme Court of Virginia has held that it "requires a determination not only that there was ...