APPELLANT BRIEF

COURT OF APPEALS OF
COMMONWEALTH OF VIRGINIA:

Court of Appeal of Virginia Record # : 2099 - 16 - 2

MARSHA MAINES
Pro Se, Aggrieved Woman
Appellant/Claimant/Beneficiary
PO BOX 6191
CHARLOTTESVILLE, VA 22906
(434)806-9974

v.

US AIRWAYS GROUP, INC.,

NEW HAMPSHIRE INSURANCE COMPANY
Appellee (s) By Attorney VSB#:
RAFAL, ADAM S., (ESQ.)

On Appeal from the :

VIRGINIA WORKERS COMPENSATION COMMISSION (for itself)
ACTION: Tribunal Case # VA00000849138
 TABLE OF CONTENTS

(A) TABLE OF AUTHORITIES

(B) A BRIEF STATEMENT OF THE NATURE OF THE CASE 1,2

(C) A STATEMENT OF THE ASSIGNMENTS OF ERROR WITH 3,4

REFERENCE TO THE PAGE(S) WHERE EACH ASSIGNMENT
OF ERROR WAS PRESERVED IN THE TRIAL COURT.

(D) STATEMENT OF THE FACTS THAT RELATE TO THE 5 - 15

ASSIGNMENTS OF ERROR, WITH REFERENCES TO THE
PAGES OF THE TRANSCRIPT, WRITTEN STATEMENT,
RECORD, OR APPENDIX.

(E) THE STANDARD OF REVIEW AND THE ARGUMENT 16 -25

(F) CONCLUSION AND RELIEF SOUGHT 26 -29

(G) THE SIGNATURE 29

(H) A CERTIFICATE 30

APPENDIX

RULE 5A:19(g) CERTIFICATE

 (A)
TABLE OF AUTHORITIES

City of Danville against O. Ryland Tate,

Record No. 140011 Circuit Court No. CL11-228

Upon an appeal from a judgment rendered by the Circuit Court of the City of Danville.

The City then filed this action against Tate seeking recovery of his sick leave pay.
The City contended that under its controlling ordinance and regulations Tate was not
entitled to receive both sick leave pay and workers' compensation indemnity benefits for
the same disability period. After conducting an evidentiary hearing and considering the
ordinance and regulations relied upon by the City as authority for recovering Tate's sick
leave pay, the circuit court held that it did not have jurisdiction to decide the City's claim.
The court reasoned that "[t]he City could have availed itself of the remedy under 65.2-
520 but for some reason failed to do so." That is, the City did not ask the Commission
for "a credit against the workers' compensation award for the amounts the City paid [to]
Tate
1 Code 65.2-520 provides in relevant part: Any payments made by the employer
to the injured employee during the period of his disability . . . which by the terms of this
title were not due and payable when made, may, subject to the approval of the
Commission, be deducted from the amount to be paid as compensation for sick leave."2
Moreover, according to the court, "[e]xclusive jurisdiction over the crediting of sick leave
payments against a workers' compensation award lies with the Commission." The court
thus dismissed the City's complaint.

On appeal, the City argues the circuit court erred because the court, not the
Commission, had jurisdiction to decide its claim. Furthermore, the City argues it is
entitled to judgment against Tate for recovery of his sick leave pay pursuant to its
controlling ordinance and regulations. We agree with the City on its jurisdictional
argument but disagree on the merits.
 Under the Virginia Workers' Compensation Act, Code 65.2-100 through -1310
(the "Act"), the Commission does have jurisdiction over whether to credit an employer's
sick leave pay, pursuant to Code 65.2-520.3 However, the Commission's jurisdiction
remains "limited to those issues which are directly or necessarily related to the right of
an employee to [workers'] compensation for a workrelated injury." Hartford Fire Ins. Co.
v. Tucker, 3 Va. App. 116, 120, 348 S.E.2d 416, 418 (1986).

The circuit court nevertheless reached the right result, as a matter of law, in
dismissing the City's complaint. See Deerfield v. City of Hampton, 283 Va. 759, 767,
724 S.E.2d 724, 728 (2012) (applying the right result for the wrong reason doctrine).
The City did not have the authority under the ordinance or regulations upon which it
relied to recover sick leave pay from Tate on the basis that he had also received
workers' compensation for the same disability period. The recovery authorized by those
provisions pertains to a distinct type of claim by the City against an employee's workers'
compensation payment.6 But, here, of course, the City is seeking to recover Tate's sick
leave payments, not his workers' compensation payments.

The majority concludes that "where the employer does not request a credit under
Code 65.2-520, the statute is simply not implicated and, accordingly, no authority of
the Commission relative to sick leave pay is triggered." (Emphasis added.)

The misapprehension of this jurisdictional line is illustrated by the majority's selective

use of language from Hartford Fire Ins. Co. v. Tucker, 3 Va. App. 116, 348 S.E.2d 416
(1986), apparently to stand for the proposition that the Commission's jurisdiction is too
limited to encompass this case. Quoted more fully, the Court of Appeals stated: The
purpose and effect of the Workers' Compensation Act (Act) are to control and regulate
the relations between the employer and the employee. Fauver v. Bell, 192 Va. 518, 521,
65 S.E.2d 575, 577 (1951). While the . . . Commission has jurisdiction "to do full and
complete justice in each case," . . . its jurisdiction does not extend to the litigation and
resolution of issues between two insurance carriers which do not affect an award of the
Commission. Generally, the Commission's jurisdiction is limited to those issues which
are directly or necessarily related to the right of an employee to compensation for a
work-related injury. Id. at 120, 348 S.E.2d at 418 (emphasis in original). The full quote
reveals that the Court of Appeals in Hartford was not stating that jurisdiction of the
Commission is limited to causes of action by employees, but rather that its jurisdiction
addresses relations between employers and employees as opposed to between two
nonemployee entities (insurance carriers). Where, as here, the dispute remains
between employer and employee and the effectual ultimate award amount, jurisdiction
properly remains with the Commission under Code 65.2-700.
This Court has cited with approval the further statement by the Court of Appeals in
Hartford that "[w]hen the rights of the claimant are not at stake, the Act clearly leaves
the litigants to their common law remedies." Bogle Dev. Co. v. Buie, 250 Va. 431, 434,
463 S.E.2d 467, 468 (1995) (quoting Hartford, 3 Va. App. at 121, 348 S.E.2d at 419).
Conversely, where, as here, the claimants rights are at stake, the Act requires litigants
seek remedy before the Commission under Code 65.2-700.

The larger damage to our statutory integrity that should concern this Court is that,
despite the City's limited reason for seeking jurisdiction in the circuit court in this
instance, there is no rational reason to limit this holding to retirees. Today's majority is
an invitation for employers to skirt the long-respected jurisdictional boundaries created
in the Virginia Workers' Compensation Act. Code 65.2-520 is wholly ineffectual if it
pertains merely to requests that employees endorse over a portion of their workers'
compensation awards and not also to pursuits for monetary recovery of those same
funds. The statutory scheme was clearly designed so that these disputes, which affect
the rights of the employee, would be adjudicated before the Commission.

JUSTICE MILLETTE, with whom JUSTICE POWELL joins, concurring.

The majority today affirms the ruling of the circuit court dismissing the City of
Danville's suit against Ryland Tate on alternative grounds. While I would likewise affirm
the ruling of the circuit court, I would hold, as did the circuit court, that it lacked
jurisdiction because exclusive jurisdiction lies with the Virginia Workers' Compensation
Commission.
The Code grants the Commission exclusive jurisdiction over repayment of non-
workers' compensation payments made by employers to injured parties during the
period of their injury.

1-212. Courts of record.

"Courts of record" means the Supreme Court of Virginia, the Court of Appeals of
Virginia, and the circuit courts.
1971, Ex. Sess., c. 49, 1-13.5:1; 2005, c. 839.

Title 8.01. Civil Remedies and Procedure Chapter 5. Venue 8.01-261. Category A
or preferred venue
8.01-261. Category A or preferred venue.
In the actions listed in this section, the forums enumerated shall be deemed preferred
places of venue and may be referred to as "Category A" in this title. Venue laid in any
other forum shall be subject to objection; however, if more than one preferred place of
venue applies, any such place shall be a proper forum. The following forums are
designated as places of preferred venue for the action specified:
1. In actions for review of, appeal from, or enforcement of state administrative
regulations, decisions, or other orders:
a. If the moving or aggrieved party is other than the Commonwealth or an agency
thereof, then the county or city wherein such party:
(1) Resides;
(2) Regularly or systematically conducts affairs or business activity; or
(3) Wherein such party's property affected by the administrative action is located.
b. If the moving or aggrieved party is the Commonwealth or an agency thereof, then the
county or city wherein the respondent or a party defendant:
(1) Resides;
(2) Regularly or systematically conducts affairs or business activity; or
(3) Has any property affected by the administrative action.
c. If subdivisions 1 a and 1 b do not apply, then the county or city wherein the alleged
violation of the administrative regulation, decision, or other order occurred.
2. Except as provided in subdivision 1 of this section, where the action is against one or
more officers of the Commonwealth in an official capacity, the county or city where any
such person has his official office.
3. The county or city wherein the subject land, or a part thereof, is situated in the
following actions:
a. To recover or partition land;
b. To subject land to a debt;
c. To sell, lease, or encumber the land of persons under disabilities;
d. [Repealed.]
e. To sell wastelands;
f. To establish boundaries;
g. For unlawful entry or detainer;
h. For ejectment; or
i. To remove clouds on title.
4. [Reserved.]
5. In actions for writs of mandamus, prohibition, or certiorari, except such as may be
issued by the Supreme Court, the county or city wherein is the record or proceeding to
which the writ relates.
6. In actions on bonds required for public contract, the county or city in which the public
project, or any part thereof, is situated.
7. In actions to impeach or establish a will, the county or city wherein the will was
probated, or, if not probated at the time of the action, where the will may be properly
offered for probate.
8., 9. [Repealed.]
10. In actions on any contract between a transportation district and a component
government, any county or city any part of which is within such transportation district.
11. In attachments,
a. With reference to the principal defendant and those liable with or to him, venue shall
be determined as if the principal defendant were the sole defendant; or
b. In the county or city in which the principal defendant has estate or has debts owing to
him.
12. [Repealed.]
13. a. In any action for the collection of state, county, or municipal taxes, any one of the
following counties or cities shall be deemed preferred places of venue:
(1) Wherein the taxpayer resides;
(2) Wherein the taxpayer owns real or personal property;
(3) Wherein the taxpayer has a registered office, or regularly or systematically conducts
business; or
(4) In case of withdrawal from the Commonwealth by a delinquent taxpayer, wherein
venue was proper at the time the taxes in question were assessed or at the time of such
withdrawal.
b. In any action for the correction of an erroneous assessment of state taxes and tax
refunds, any one of the following counties or cities shall be deemed preferred places of
venue:
(1) Wherein the taxpayer resides;
(2) Wherein the taxpayer has a registered office or regularly or systematically conducts
business;
(3) Wherein the taxpayer's real or personal property involved in such a proceeding is
located; or
(4) The Circuit Court of the City of Richmond.
14. In proceedings by writ of quo warranto:
a. The city or county wherein any of the defendants reside;
b. If the defendant is a corporation, the city or county where its registered office is or
where its mayor, rector, president, or other chief officer resides; or
c. If there is no officer or none of the defendants reside in the Commonwealth, venue
shall be in the City of Richmond.
15. In proceedings to award an injunction:
a. To any judgment or judicial proceeding of a circuit court, venue shall be in the court in
the county or city in which the judgment was rendered or such proceeding is pending;
b. To any judgment or judicial proceeding of a district court, venue shall be in the circuit
court of the county or city in which the judgment was rendered or such proceeding is
pending; or
c. To any other act or proceeding, venue shall be in the circuit court of the county or city
in which the act is to be done, or being done, or is apprehended to be done or the
proceeding is pending.
16. [Repealed.]
17. In disbarment or suspension proceedings against any attorney-at-law, in the county
or city where the defendant:
a. Resides;
b. Has his principal office or place of practice when the proceeding is commenced;
c. Resided or had such principal office or place of practice when any misconduct
complained of occurred; or
d. Has any pending case as to which any misconduct took place.
18. In actions under the Virginia Tort Claims Act, Article 18.1 ( 8.01-195.1 et seq.) of
Chapter 3 of this title:
a. The county or city where the claimant resides;
b. The county or city where the act or omission complained of occurred; or
c. If the claimant resides outside the Commonwealth and the act or omission
complained of occurred outside the Commonwealth, the City of Richmond.
19. In suits for annulment, affirmance, or divorce, the county or city in which the parties
last cohabited, or at the option of the plaintiff, in the county or city in which the
defendant resides, if a resident of this Commonwealth, and in cases in which an order
of publication may be issued against the defendant under 8.01-316, venue may also
be in the county or city in which the plaintiff resides.
20. In distress actions, in the county or city when the premises yielding the rent, or
some part thereof, may be or where goods liable to distress may be found.
1977, c. 617; 1978, c. 334; 1979, c. 331; 1985, c. 433; 1987, c. 567; 1988, c. 766; 1989,
c. 556; 1990, c. 831; 1993, c. 841 .
Every written instrument is by definition the memorialization of an event.
Absent the event in the real world, the instrument is worthless at best, and at worst,
fraudulent. This is derived from the knowledge of generally accepted accounting
principles (GAAP) as enunciated by the Financial Accounting Standards Board (FASB)
supported by the American Institute of Certified Public Accountants (AICPA).
In any audit of bookkeeping and/or accounting records, written instruments are the
starting point for inquiry as to whether the documents represents a true and fair
representation of an actual transaction.

While the auditor may be aware of certain legal presumptions concerning the validity of
a facially valid instrument, the auditor is tasked with testing all transactions
including those that appear to possess the attributes of facial validity

TABLE OF AUTHORITIES
RELEVANT VWC RULES:
Rule 1.2 Employee's Claim on the Ground of Change in Condition or Other Relief
A. A change in condition claim must be in writing and state the change in condition
relied upon. A copy of the claim should be sent to the employer
Rule 1.4 Employer's Application for Hearing applied to EMPLOYER, not
employee.
Rule 1.5 Acceptance or Rejection of Claim or Application
Rule 1.6 Review of Decision Accepting or Rejecting Claim or Application
E. If rejection of a claim or application is affirmed on review, the penalty and interest
provisions of 65.2-524 and 65.2-707 of the Code of Virginia shall apply from the date
the application was initially rejected.
Rule 1.7 Compromise Settlement; Lump Sum Payment
A. A proposed compromise settlement shall be submitted to the Commission in the form
of a petition setting forth:.
D. If the proposed settlement contemplates payment in a lump sum, the petition shall
set forth in detail the facts relied upon to show that the best interests of the employee or
the dependents will be served thereby.
E. The parties shall submit an original proposed order, properly endorsed.
F. Payment shall be due within 10 days after entry of the order approving the
compromise.

RELEVANT VIRGINIA CODES

65.2-105. Presumption that certain injuries arose out of and in the course of
employment. In any claim for compensation, where the employee is physically or
mentally unable to testify as confirmed by competent medical evidence and where the
factual circumstances are of sufficient strength from which the only rational inference to
be drawn is that the accident arose out of and in the course of employment, it shall be
presumed the accident arose out of and in the course of employment, unless such
presumption is overcome by a preponderance of competent evidence tothe contrary.
2011, cc. 229, 304; 2012, c. 841; 2013, c. 169.

65.2-300. Presumption of acceptance of provisions of title; exemptions; notice and

rejection. A. Every employer and employee, except as herein stated, shall be
conclusively presumed tohave accepted the provisions of this title respectively to pay
and accept compensation for personal injury or death by accident arising out of and in
the course of the employment and shallbe bound thereby. Except as otherwise provided
herein, no contract or agreement, written orimplied, and no rule, regulation or
other device shall in any manner operate to relieve any employer in whole or in
part of any obligation created by this title.

65.2-306. When compensation not allowed for injury or death; burden of proof.
A. No compensation shall be awarded to the employee or his dependents for an injury
or death caused by:
1. The employee's willful misconduct or intentional self-inflicted injury;
2. The employee's attempt to injure another;
3. The employee's intoxication;
4. The employee's willful failure or refusal to use a safety appliance or perform a duty
required by statute;
5. The employee's willful breach of any reasonable rule or regulation adopted by the
employer and brought, prior to the accident, to the knowledge of the employee; or
6. The employee's use of a nonprescribed controlled substance identified as such in

Chapter 34
( 54.1-3400 et seq.) of Title 54.1.
B. The person or entity asserting any of the defenses in this section shall have the
burden of proof with respect thereto. However, if the employer raises as a defense the
employee's intoxication or use of a nonprescribed controlled substance identified as
such in Chapter 34 of Title 54.1, and there was at the time of the injury an amount of
alcohol or nonprescribed controlled substance in the bodily fluids of the employee which
(i) is equal to or greater than the standard set forth in 18.2-266, or (ii) in the case of
use of a nonprescribed controlled substance, yields a positive test result from a
Substance Abuse and Mental Health Services Administration (SAMHSA) certified
laboratory, there shall be a rebuttable presumption, which presumption shall not be
available if the employee dies as a result of his injuries, that the employee was
intoxicated due to the consumption of alcohol or using a nonprescribed controlled
substance at the time of his injury. The employee may overcome such a presumption by
clear and convincing evidence. Code 1950, 65-35; 1968, c. 660, 65.1-38; 1991, cc.
166, 355; 1994, cc. 600, 804; 2002, c. 636.

65.2-312. False statements, representations, etc., in connection with an award;

penalties.
A. It shall be unlawful for any person to knowingly make, file or use any writing or
document knowing the same to contain any materially false, fictitious or fraudulent
statement or entry in connection with an award under this title. It shall also be unlawful
for any person to aid or abet another in a violation of this section. B. A violation
of this section shall be punishable as a Class 6 felony.
C. Any person convicted of a violation of this section who is licensed to practice
any of the healing arts as defined in 54.1-2900 or to practice law pursuant to
Chapter 39 ( 54.1-3900 et seq.) of Title 54.1, and who committed the violation while
engaged in such practice, may have such license suspended or revoked in accordance
with the provisions of Chapter 29 ( 54.1-2900 et seq.) and Chapter 39 ( 54.1-3900 et
seq.) of Title 54.1, respectively.
D. Venue for the prosecution of a violation of this section shall lie in the county or city
wherein the injury occurred. 1993, c. 792; 1994, cc. 11, 366.

65.2-700. Jurisdiction of Commission.

All questions arising under this title, if not settled by agreements of the parties interested
therein with the approval of the Commission, shall be determined by the Commission,
except as otherwise herein provided.
Code 1950, 65-89; 1968, c. 660, 65.1-92; 1991, c. 355 .

65.2-703. Interrogatories and depositions.

A. Any party to a proceeding under this title may serve interrogatories or cause the
depositions of witnesses residing within or without the Commonwealth to be taken, the
costs to be taxed as other costs by the Commission. All interrogatories, depositions, or
any other discovery shall conform to rules governing discovery promulgated by the
Commission.
B. The Commission shall adopt rules governing discovery conforming as nearly as
practicable to Part Four of the Rules of the Virginia Supreme Court. Such rules shall be
adopted in accordance with and pursuant to the Administrative Process Act ( 2.2-4000
et seq.). Code 1950, 65-91.1; 1968, c. 660, 65.1-95; 1970, c. 470; 1991, c. 355;
1993, c. 694 .

65.2-705 Review of award; rehearing.

A. If an application for review is made to the Commission within 30 days after issuance
of an award, the full Commission, except as provided in subsection B of 65.2-704 and
if the first hearing was not held before the full Commission, shall review the evidence or,
if deemed advisable, as soon as practicable, hear the parties at issue, their
representatives, and witnesses.
The Commission shall make an award which, together with a statement of the
findings of fact, rulings of law, and other matters pertinent to the questions at
issue, shall be filed with the record of the proceedings.
B. A rehearing convened under this section shall be a public proceeding and, upon
proper request, may, in the discretion of the Commission, be video recorded for public
broadcast at the expense of the requesting party, subject only to the same limitations
and conditions as apply to court proceedings in the Commonwealth.
C. Upon an application for review made pursuant to subsection A, the opposing party at
issue shall have 14 days thereafter to make an independent application for review.
D. When a vacancy on the Commission exists, or when one or more members of the
Commission are absent or are prohibited from sitting with the full Commission to hear a
review, the Chairman may appoint one or more deputy commissioners or recall one or
more retired members of the Commission to participate in the review. The retired
member or members recalled shall be the member or members who occupied the seat
for which such member or members are being recalled, unless the parties otherwise
consent. If retired members of the Commission are recalled as provided in this
subsection, they shall be compensated as provided in 17.1-327.

65.2-710. Enforcement, etc., of orders and awards. Orders or awards of the

Commission may be recorded, enforced, and satisfied as orders or decrees of a circuit
court upon certification of such order or award by the Commission. The Commission
shall certify such order or award upon satisfactory evidence of noncompliance
with the same. 1976, c. 149, 65.1-100.1; 1991, c. 355 .