ANALYSIS OF JANUARY 31, 2012 CAV OPINIONS[Posted January 31, 2012] We get three published decisions today from the Court of Appeals, and somehow, none of them involves even a single crook.
Virginia’s Workers’ Comp statutes contain a fairly straightforward jurisdictional requirement of a nexus between the injury, or at least the employment, and the Commonwealth. You wouldn’t expect a Ford Motor Company assembly-line worker who was injured in Dearborn to file a Virginia comp claim, after all. Today, we find out what happens when a Virginian contracts here to perform work out-of-state, and is injured there. The decision is Anagua v. Sosa.
The employee met the employer, who worked out of his Fairfax County home, and secured work installing drywall at a project in Delaware. While on the job, the employee fell from a ladder and was injured. He filed a comp claim, but the commission ruled that it had no jurisdiction, since, it found, the contract of employment was not for work in Delaware. A Virginia statute provides coverage for accidents that happen in other jurisdiction, but not if the work is exclusively out-of-state.
On appeal, the employer benefits from the benevolent standard of review here. The appellate court presumes that the commission got the facts right, and on those facts, the CAV today agrees with the commission, ruling that this just isn’t a Virginia claim. The employee argued in vain that the absence of jurisdiction is the employer’s burden, but the court quickly disposes of that contention, citing previous opinions that pin that obligation on the claimant’s lapel.
I was pleased by the number of plot turns that fit into Bagley v. DSS, a very short opinion (just over three pages) with an almost-surprise ending. It’s a proceeding to terminate residual parental rights, and the mother assigned error to the fact that the trial court didn’t consider placement with relatives as an alternative to termination. The decisive issue in this case is whether they really were relatives.
Let’s set the dramatis personae first. Mom has a child; there’s no Dad in the picture. Mom has a brother that we’ll call Uncle Bubba. Bubba has a girlfriend, and Mom asserted that the girlfriend’s parents would have been suitable custodians for her child.
Upon reading this, I’m thinking, Oh, come on. A tenuous relationship like that would never support any legitimate suggestion that these folks are actually relatives, and I wondered how this claim ever got this far. But then, in a moment of illumination that’s tucked into a footnote on the last page, the answer comes: Uncle Bubba and his girlfriend have a child together. That means that Bubba’s kid is Mom’s niece or nephew (the opinion doesn’t disclose the sex of either child), and the proposed custodians are therefore dimly, faintly, related to Mom.
Except they aren’t, a panel of the Court of Appeals rules today in affirming the trial court. Reaching back to no less august an authority than William Blackstone, the court holds that Mom and the proposed custodians wouldn’t be related even if Bubba and his beloved were wed: “Centuries-old common law holds ‘the consanguinei of the husband are not at all related to the consanguinei of the wife.’” (For those of you who’ve forgotten your courses of descent and distribution, relatives can be those of affinity – related only by marriage – or of consanguinity – literally, with the same blood. Virginia law adds adoption to this otherwise-exclusive list of relations.)
Based on this ruling, I’m now going to have to go home to The Boss and explain that I’m not actually related to her sister. I’ll let you know how that conversation comes out; as a precaution, I’m going to go ahead and arrange with the US Postal Service to have my mail forwarded to the doghouse, to save time.
The final decision issued today is Smith v. VEC, an unemployment-compensation appeal that I believe is published for one reason only – to elevate VEC precedent to the level of an appellate decision. Smith worked for a trucking company, and according to today’s opinion, she wasn’t very good at it. She made several routing mistakes that cost the company money. Her employer gave her several warnings – some oral and some in writing – and after a year on the job, she figured she could read the writing on the wall, so she resigned.
You may be surprised to learn that, after having quit, she sought unemployment compensation. Citing longstanding precedent within the VEC, the commission denied her claim because “’anticipation of being discharged’ is not good cause for leaving a job.” That premise, sensible as it is, has never made its way into an appellate decision in Virginia, but as of today, practitioners don’t have to go hunting through old VEC decisions to cite the doctrine, the court affirms in a published opinion.