ANALYSIS OF APRIL 21, 2009 CAV OPINIONS[Posted April 21, 2009] Today is the anniversary of the traditional date for the founding of Rome by Romulus – April 21, 753 BCE. What does that have to do with today’s two published opinions from the Court of Appeals? Well, nothing, actually. But as a fan of ancient and classical Roman history, I’d be remiss if I didn’t give this esoteric interest of mine an occasional plug at suitable times. On to today’s rulings:
Deadlines are deadlines; miss them and you may suffer some unpleasant consequences. There’s a deadline for filing a Workers’ comp claim – two years after the date of the injury. But a helpful statute (well, it’s helpful from the employee’s viewpoint, anyway) provides a respite, in that the time can be tolled where the employer somehow prejudices the employee with regard to the filing of the claim. The Court of Appeals evaluates just what it takes to constitute that prejudice in Jones v. Gwaltney of Smithfield, decided today.
Jones suffered an injury when he fell on the job in January 2005. He let his supervisor know about it immediately, and the supervisor sent him to the Gwaltney medical clinic. Now, at this point, what supposed to happen is that the employer files a first report of accident and lets the employee know about his rights to pursue relief under the Comp Act. But that didn’t happen here.
Two years and (gulp!) four months after the injury, Jones finally got around to filing a claim. The employer filed a first report of accident a few weeks later. The deputy commissioner and the full commission both ruled that the claim was time-barred. The commission ruled that the employee was not prejudiced by any of the employer’s actions (or in this case, failure to act):
“In this case, the claimant never stated that the employer or insurer told him not to file a claim. The evidence does not show that they purposefully misled or wrongly acted towards him to entice him not to file a claim.”
Today, the Court of Appeals reverses, holding that this analysis by the commission misinterprets the tolling statute. Nothing in that statute requires that the employer have acted maliciously or wrongfully to prevent the filing of a claim, the court rules today. It’s enough if the employer’s acts have the effect of prejudicing the employee by delaying the filing of a claim. The court sends the case back to the commission to determine whether Jones met his burden to show prejudice resulting from the long delay in filing the employer’s first notice.
Assault and battery is a misdemeanor. Assault and battery of a law enforcement officer is a felony, a much more serious proposition. The appellant in Cline v. Commonwealth was convicted of the felony, and does what he can to get that knocked down to a misdemeanor.
Several types of law enforcement officers fall within the aegis of the felony assault statute; they’re listed in the body of the Code section. They include police, sheriff’s deputies, conservation officers, auxiliaries, and certain DMV enforcement division officers. The victim in this case was pretty clearly a law enforcement officer – an ABC Board special agent – but he wasn’t among those specifically listed in the statute. No matter; the trial court found that he was enough of a law enforcement officer to merit special protection, so the court convicted Cline of the felony count.
Today the Court of Appeals turns to the ancient Latin phrase expressio unius est exclusion alterius (the mention of one thing is the exclusion of all others) to reverse the conviction and remand for sentencing on simple (misdemeanor) assault and battery. Since the statute specifies who’s protected, courts can’t go adding other folks that seem to have been good candidates, but just weren’t listed. If courts were free to throw in other helpful language where the legislature seems to have inadvertently omitted it, that would make the courts a sort of super-legislature, and that ain’t happenin’ on this court’s watch.
in any of these case areas – must be prepared to show that one actually exists.