Judge, Court of Appeals of Virginia
FALLS CHURCH CABINETRY v. Jewell
Court of Appeals of Virginia · 2012-05-01 · cited 1×
In Falls Church Cabinetry v. Jewell, the employer and its insurer appealed a Virginia Workers’ Compensation Commission award of benefits to claimant Thomas Jewell for a May 2007 work-related thumb injury. The employer argued that the claim was barred by the two-year statute of limitations under Code § 65.2-601, that the evidence was insufficient, and that any prejudice from its late-filed accident report was cured by commission notices sent to Jewell about an earlier January 2007 wrist injury. The Court of Appeals affirmed the award, holding that the May 2008 notice—referencing only the wrist injury and a different carrier—did not trigger the per se presumption of non-prejudice under Code § 65.2-602, that Jewell remained unaware of the filing deadline for the thumb injury, and that the employer’s delay in reporting the second accident therefore tolled the limitations period.
labor & employmentprocedure
Wal-Mart v. Poorman
Court of Appeals of Virginia · 2012-04-24 · cited 1×
In Wal-Mart v. Poorman, the employer appealed a Virginia Workers’ Compensation Commission decision denying its application to suspend benefits for claimant Ashley Poorman, who had refused a selective employment offer after a 2007 workplace ankle injury that led to an awarded compensable condition of reflex sympathetic dystrophy (RSD). The commission had ruled that the employer bore the burden of raising and disproving causation for additional conditions (such as seizures and stress) that Poorman cited to justify her refusal, even though those conditions were not part of the existing award. The Court of Appeals reversed and remanded, holding that the employer’s initial burden was only to show it offered suitable work based on the ankle injury and RSD alone; once that was done, the burden shifted to the claimant to prove her refusal was justified, including establishing any causal link between the accident and non-awarded conditions she relied upon. The court reasoned that the commission’s approved award limited review to the compensable injury, and the evidentiary burden on causation could not be shifted to the employer.
labor & employmentprocedure
Virostko v. Virostko
Court of Appeals of Virginia · 2012-03-20 · cited 13×
In Virostko v. Virostko, the father appealed a trial court ruling that he owed $39,000 in child support arrearages to the mother under a Separation and Property Settlement Agreement (PSA) that had been incorporated into their 2009 divorce decree. The PSA required the father to pay $2,300 per month while employed under his Iraq deployment contract with Triple Canopy, after which the amount would be renegotiated or set by a court. The Court of Appeals of Virginia affirmed the trial court’s judgment, holding that the father’s unilateral reduction in payments and any private agreement for lower amounts ($200 or $550 per month) did not relieve his obligation because child support provisions in a court decree cannot be modified without judicial approval. The court further determined that arrearages properly accrued at the PSA rate beginning in October 2009, as no timely petition for modification had been filed and past-due installments vest as they accrue.
family law
Marrison v. Fairfax County Department of Family Services
Court of Appeals of Virginia · 2011-11-08 · cited 9×
Dean and Ashley Marrison appealed a circuit court order adjudicating their three surviving children abused and neglected, arguing that the Fairfax County Juvenile and Domestic Relations District Court lacked subject matter jurisdiction because it failed to hold a preliminary removal hearing within five business days of the children's emergency removal, as required by Code § 16.1-251(B). The delay occurred after the children were removed on February 1, 2010, when multiple court closures due to snow and a holiday pushed the hearing to February 18. The Court of Appeals of Virginia affirmed the denial of the parents' motions to dismiss. It held that the statutory five-day requirement is procedural and directory rather than mandatory and jurisdictional, because the statute contains no explicit penalty for noncompliance, does not state that an untimely hearing is invalid, and does not reflect legislative intent to strip the court of authority. The court further noted that the parents had shown no prejudice from the delay.
family lawprocedure
Flanagan v. Commonwealth
Court of Appeals of Virginia · 2011-08-30 · cited 217×
John Flanagan was convicted under Virginia Code § 18.2-85 for possessing and manufacturing explosive materials after law enforcement found chemicals, fuses, and a batch of the highly volatile substance TATP (triacetone triperoxide) at his business, along with his admissions that he made the materials to experiment and hear explosions. He appealed, claiming the statute was unconstitutionally vague, that the trial court improperly shifted the burden to him to prove a lawful purpose such as education or science, and that the evidence was insufficient to support the conviction. The Court of Appeals of Virginia affirmed the conviction, holding that the statute clearly prohibits the acts in question while providing affirmative defenses that the defendant must prove, establishes a strict-liability offense without requiring proof of malicious intent, and was supported by competent evidence that Flanagan produced TATP without a permit or qualifying lawful purpose. The court further found that the fact-finder could reject Flanagan’s testimony and any claim that the materials were fireworks.
criminal law
Perry v. Commonwealth
Court of Appeals of Virginia · 2011-08-09 · cited 97×
In Perry v. Commonwealth, the defendant was convicted after a jury trial of two counts of attempted robbery and two counts of using a firearm during those attempts, stemming from an incident where he approached two minors at a playground, demanded their belongings while brandishing a gun, and struck one victim. On appeal, Perry challenged the admission of a victim's out-of-court statements to his father under the excited utterance hearsay exception, argued that the admission violated his Sixth Amendment confrontation rights, and claimed the trial court should have granted a mistrial because a juror appeared to fall asleep during testimony. The Court of Appeals of Virginia affirmed the convictions, holding that the statements qualified as excited utterances given the short time frame and the victim's visible injury, that no confrontation violation occurred because the victim testified and was cross-examined at trial, and that the mistrial request was waived because Perry failed to object or seek relief when the juror issue was first raised during trial. The court further declined to apply the ends-of-justice exception to the procedural default rule.
criminal lawprocedure