ANALYSIS OF RECENT CAV OPINIONS[Posted February 21, 2012] It’s been a particularly busy season around here, between brief filings, oral arguments, and travel to look at trial-court records. Accordingly, I’ve fallen behind in providing analysis of the published opinions of the Court of Appeals of Virginia. Let’s catch up on what’s been going on, starting with today’s two published opinions.
The court avoids some potentially perplexing Due Process issues today in Minor v. Aramark/VCU. This case reflects the intersection of two legal arenas – Comp and child support.
Minor was injured at work and negotiated a $30,000 settlement of his indemnity claim. After factoring in a 20% legal fee and a few dollars in costs, he expected to get a check for almost $24,000. To his surprise, he instead opened the envelope to find less than $1,200 inside. The rest had been diverted to the Division of Child Support Enforcement, pursuant to an administrative order from DCSE to pay support arrearages.
The problem from Minor’s perspective was that he had never received a support order, and he thought it was inappropriate to take away 95% of his award without even giving him a chance to complain about it. He asked for a hearing, arguing that his employer had overpaid DCSE.
A deputy commissioner dismissed the application, finding that the employer had no authority to ignore or modify orders from DCSE. The full commission agreed, noting that the employer had to pay the DCSE order or face the prospect of double payment.
The Court of Appeals affirms today. It finds that the validity of the DCSE order does not arise under the Workers’ Comp statutes, so the commission had no authority to modify what DCSE had ordered. This holding also covers the Due Process argument; while the issue may have merit, it’s brought in the wrong forum.
Today’s opinion is published because previous decisions along these lines, while uniform, had all come from the commission, so this is the first judicial determination of this question in Virginia.
The panel in Dunham v. Commonwealth never seems to run out of reasons why the judgment below should be affirmed. This is a proceeding for revocation of a suspended sentence. The original sentence of fifteen years, with fourteen suspended, was imposed in 1996. The sentencing order placed the defendant on terms of good behavior for ten years.
Two years later, Dunham was found to be in violation of the good-behavior provision. His sentence was reimposed, but then the whole thing was resuspended, this time on terms of good behavior for fourteen years.
Dunham managed to keep clean for almost the entire time, but he just couldn’t make it to the finish line; in 2010, less than two years shy of the 14-year period, he got convicted again. The suspended sentence was again reimposed, and most of it was resuspended. Dunham appealed, saying that he’d finished the original ten-year period, and the 1998 order that tacked up an extra four years of good behavior was improper.
This appeal dies an ignoble death, as the appellate panel identifies not one, not two, but three separate grounds upon which to affirm. The primary problem is that instead of appealing the 2010 finding, Dunham was really contending that the 1998 order was problematic. Maybe it was; but the time for asserting that complaint was back then, not in what amounts to a collateral attack on the order over a decade later.
Dunham conceded that he didn’t preserve the issue under the contemporaneous-objection rule, but asked that the court consider it under the ends-of-justice exception. Normally that flaw would prove fatal, but that isn’t the approach the panel takes today. Nor is the merits-based ground; the opinion explains in a footnote that trial courts have the discretion to “extend the length of the period of suspension upon the resuspension of some or all of a previously suspended sentence.” This last holding is noteworthy because it conflicts with language in a 2008 published opinion from the same court; today’s panel finds that language to have been dictum.
In the end, the court selects the collateral-attack bar as the ultimate basis for affirming.
Let’s step back a week to February 14, when the court handed down four published opinions. In one, Carrington v. Commonwealth, the court affirms a conviction for child neglect despite the fact that the defendant was not the child’s father or custodian. The court notes that the statute applies to any “parent, guardian, or other person responsible for the care of” a minor can be convicted. Importantly, prior CAV caselaw holds that one can become responsible for a minor by a voluntary course of conduct, and the trial court was permitted to find in this instance that the defendant had done so.
There’s a fair measure of dispute in Hines v. Commonwealth, involving convictions for robbery and companion firearms charges. The trial court imposed a ten-year sentence for the firearms conviction. On appeal, Hines argued that the firearms statute contains a mandatory three-year minimum, but was otherwise unclassified, so the minimum was also the maximum, and the most he could be sentenced was three years.
Normally I’d tell you that that argument got nowhere in the trial court, but in this instance, that’s not true; Hines didn’t raise the issue at all below. Ordinarily that’s fatal to appellate review (see the Dunham discussion above for an example), but in this case the CAV panel takes the highly unusual step of applying the ends-of-justice exception to consider the merits. It then takes the even-more-unusual step of reversing, at least on the three-year-maximum issue. The court finds that interpreting the statute to impose a minimum but no maximum would effectively render a life sentence the maximum punishment for a violation of this provision.
One member of the panel is unconvinced: Judge Kelsey authors a dissent that begins with the powerful phrase, “Minimum Means Minimum.” He has no stomach for the majority’s revision of the word to include a coincidental maximum. “The common, ordinary, and accepted understanding of the word “minimum” means minimum —not maximum. To me, the analysis begins and ends there.” I strongly encourage my readers to take the time to review this decision for two reasons – to understand the very interesting philosophical and linguistic debate over this term, and to get a better idea of what kind of circumstances justify, in the court’s view, invocation of the ends-of-justice exception.
The protagonist (or antagonist, depending on your point of view) in Haftsavar v. All American Carpet and Rugs has got to be one of the luckiest people in the Commonwealth. He was fortunate enough to sustain a hernia while at work, lifting a large box. If that doesn’t sound particularly lucky to you, you need to know more: during his pre-operative evaluation, doctors discovered significant obstruction in his coronary arteries. They rapidly decided to postpone the hernia surgery they had contemplated, in favor of a vastly more urgent coronary bypass grafting.
In all probability, this injury by accident thus saved the employee’s life. After a period of recovery of several months, he then underwent hernia surgery. The employer agreed to pay for the latter surgery, but refused the employee’s request to fund the cardiac treatment, since it wasn’t caused by the employment.
A divided full commission agreed with the employer, and a panel of the Court of Appeals affirms. The court reaffirms that in general, an employee must show a causal connection between the employment and the medical condition, but there are two exceptions: the doctrine of compensable consequences and the “two causes rule,” both of which will be familiar to Comp practitioners. In this opinion, the court applies those rules and holds that they don’t afford coverage under the Act “for a pre-existing condition that has no causal connection whatsoever to a compensable workplace injury.”