ANALYSIS OF SEPTEMBER 25, 2007 CAV OPINION[Posted September 25, 2007] This morning, the Court of Appeals of Virginia hands down a single published opinion, in the Workers’ Compensation case of Wainwright v. Newport News Shipbuilding.
Wainwright sustained what must have been a painful injury on the job in 1996, when a forklift struck him from behind. He submitted a timely notice of claim 30 days later, and noted that he was also pursuing available relief under federal law (the Longshore and Harbor Workers’ Comp Act). The employer eventually accepted the claim as compensable, and agreed to pay benefits under the federal act. Accordingly, there was no need to schedule a state Workers’ Comp hearing at the time.
But two years after the injury, Wainwright became concerned that the employer was sticking its corporate nose into his private business, by “attempting to medically manage” his case and by refusing to authorize treatment by his chosen doctor. The employer essentially agreed – well, not with the meddling part, but it contended that Wainwright’s personal doctor was no longer the appropriate medical professional to manage the care. The parties agreed to convene a hearing that was limited to the issue of just who should be the primary physician in the case.
The employer won that dispute, as the deputy commissioner found that Wainwright’s care should be turned over to a chronic pain management specialist. She directed the employer to give Wainwright three names to choose from. But that wasn’t the key fact in today’s opinion. That key fact is coming right up:
Nothing. Nothing happened in the case, at least on the commission’s records, for 4 ½ years. No one objected to the deputy’s decision, and the parties went on with their lives, until in late 2003, Wainwright sought an award of temporary disability benefits. Keep in mind that the injury had occurred seven and a half years before this request was filed.
If you practice in the field of civil litigation, but don’t handle Workers’ Comp cases, you’re probably thinking this is a statute of limitations issue. If so, you’d be wrong; the only thing the Workers’ Comp Act requires in order to beat the running of the statute is that the employee file a claim within two years after the injury, and Wainwright easily met that deadline. Instead, in the ensuing hearings before a different deputy, the dispositive issue was whether the employee had abandoned his claim. The second deputy concluded that Wainwright had not sought a disability award “for record purposes” from the original deputy, and the passage of time made this request too late. The full commission affirmed this ruling (though it did reverse the deputy’s alternate finding of res judicata, since the issue of disability benefits was not actually litigated before the first deputy).
In today’s ruling, a panel of the Court of Appeals reverses the commission, finding that Wainwright had abandoned nothing. It notes that the sole issue in the first hearing, by agreement of the parties, was the identity of the primary treating physician. The employer had accepted responsibility to pay compensation, and presumably that was being handled nicely the whole time, through the federal act. While under well-established jurisprudence, “issues that are raised and not pursued are deemed abandoned, unless specifically deferred,” the problem here is that the issue of disability benefits was never before the first deputy commissioner. Accordingly, the mere fact that the parties had to litigate an ancillary issue did not make it necessary for Wainwright to bring all possible issues up for hearing at that time.
It may seem unusual for a hearing request to come so very long after the date of the injury. But unlike ordinary civil litigation, in which courts can press to move cases through the docket (see this month’s Supreme Court ruling in Collins v. Shepherd for a fine example of that principle), in Workers’ Comp cases, there is no impetus to force cases through to final adjudication. That means that after filing a timely claim, a claimant can seek a hearing for benefits many years later. That’s the way of the world for Comp practitioners, as strange as it may seem to those who practice in other fields.
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I also want to mention one ruling in particular from among those that were announced last week. Nelson v. Commonwealth presents a fact pattern that, while probably not all that common, provides an interesting lesson in what it means to fail to appear for court.
Nelson got in hot water with Stafford County law enforcement authorities for allegedly uttering a forged note. Figuring that he could achieve by confusion what he might not achieve by candor, he gave the arresting sheriff what may or may not have been a fake ID. Fortunately for him, he made bond the same day. He dutifully appeared for arraignment a few weeks later, and the case was scheduled for trial four months thence.
Between arraignment and trial, however, Nelson’s social life intervened. He traveled to Maryland, perhaps unaware of the fact that law enforcement officials up there wanted to get to know him, too. He was arrested and held in custody for fourteen months. Upon his arrest, he did not call his Virginia attorney; nor did he tell the Maryland gendarmes that he really, really needed to go to Virginia in the near future. Needless to say, his Virginia trial was short; while the lawyer shrugged his shoulders, the judge issued a capias.
Nelson got out of custody in Maryland, and was evidently handed over to the Virginia authorities, he having been indicted in the meantime on a charge of failure to appear. At the trial on that charge, his lawyer interposed the perfectly plausible defense that Nelson could not have “willfully” failed to appear in Virginia, on the entirely reasonable assumption that no one “willfully” goes to prison in Maryland (or elsewhere, for that matter). And since he did not have freedom of movement on the trial date, his failure to appear in the Virginia court was involuntary.
In response, the trial court instructed the jury (over Nelson’s objection) that it could “infer that every person intends the natural and probable consequences of his acts.” The prosecutor evidently took that invitation and ran with it, suggesting to the jury that Nelson should have known that by going to Maryland, where he was wanted, he stood an excellent chance of missing his Virginia court date. The jury found that to be sound reasoning, and convicted Nelson. The court of appeals granted Nelson a writ to review that conviction.
Last week, the appellate court pointed to two key facts in reaching the decision to affirm. The first is the fact that Nelson left the Commonwealth in violation of the terms of his admission to bail; the standard Virginia bond form contains boilerplate language that forbids the defendant from leaving the Commonwealth before judgment is rendered in his case. The second is Nelson’s furnishing the false identity to the arresting officer. (There is one additional fact that tips the balance here, at least implicitly: Nelson’s failure to contact his Virginia lawyer upon being arrested in Maryland.)
The other appellate issue involves the appropriateness of the “natural and probable consequence” instruction. The appellate court declines to address this issue, for a familiar reason that still bears repeating. At trial, Nelson’s lawyer objected to the instruction because, he contended, it wasn’t a reasonable inference to think that going to Maryland could get you stuck there. On appeal, Nelson contended that this instruction presented a (presumably procedural) Due Process violation. But without any mention of the Due Process Clause below, the appellate court won’t take up the issue in the first instance, so this argument is barred under Rule 5A:18.
At first glance, this ruling seems a bit anomalous. With a specific intent crime like failure to appear, it would seem that Nelson’s involuntary act of failing to appear should fall short of the conduct required for conviction. Distilled to its essence, this opinion seems to me to indicate that if Nelson wanted to take advantage of this defense, he had at least an obligation to act reasonably. Instead, he violated the terms of his release, gave the arresting officer a false identity, and decided he didn’t need to let his Virginia lawyer know where he was. These factors, the Court of Appeals rules, were enough to permit a reasonable jury to infer that he “intended the natural and probable consequences” of doing all that, which was to miss his Virginia trial date. One might reasonably read into this fact pattern the very real possibility that if he had been arrested in Virginia, or if he had called his Virginia lawyer from Maryland, he might have evaded this particular charge. (Not the uttering, of course; that’s a separate issue that isn’t addressed in this opinion.)