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Well, that was fast. Last week I said that we would see more about the “plain smell” issue and vehicle searches, but I didn’t expect to it be just one week. We also get opinions on medical-immunity in drug cases and a Worker’s Compensation case that is a must read for that field

| Aug 2, 2022 | The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog |

As we enter the Dog Days of Summer, the Court of Appeals has three published opinion to kick off August. Let’s start off with a Worker’s Compensation appeal where the pro se employee appellee gets a win!  Hooray for the little guy — or in this case gal.  The case has a really interesting twist in that Ms. Casie O’Neil is a sheriff’s deouty and her on the job injury was caused by another law enforcement officer during a training exercise.

County of Henrico and PMA Management Corporation, TPA v. Casie O’Neil involves three questions: Did the Commission err in failing to find that O’Neil’s claim was barred by res judicata, and if not, did it err in finding that her injuries were were causally related to her workplace accident.  Separately, the County also argued that “the Commission erred by refusing to permit the County to participate in oral argument in an unrelated case.” That third issue is a bit of a head-scratcher, isn’t it?  How is an “unrelated case” relevant to O’Neil’s?  As Margo Channing would have it, “Fasten your seatbelts; it’s going to be a bumpy night.”

O’Neil attended a sheriff’s training exercise. During the training, a lieutenant punched her near the throat, causing pain in her collarbone, neck, head, left arm, and ear. Immediately following the punch, O’Neil felt pain on her left side, she could not hear anything, and her jaw hurt. Her supervisors instructed her to go back to her workplace to fill out an incident report. She experienced more pain while driving, so she pulled over and her supervisor drove her to the emergency room where she was treated. Subsequent medical treatment showed that O’Neil was suffering from “multilevel degenerative disc disease in the spine,” how ever in making this diagnosis, the training incident was identified as the “onset” of the condition.

There was no evidentiary hearing on O’Neil’s initial claim for benefits.  She was rated for light duty and received an award that provided temporary total disability due to “sternoclavicular joint strain.”  After being rated to return to full duty, O’Neil continued to suffer pain and hearing loss.  Following additional examinations, she was diagnosed with brachial plexus injury, reactive cervical lymphadenopathy, neuropathic pain, and otalgia of the left ear.  Again, the doctor making the diagnosis traced these conditions to the trauma from the training accident.

O’Neil filed a new claim, which was dismissed by the deputy commissioner as barred by the previous award.  The Commission reversed the res judicata finding and remanded the case to the deputy commissioner, who then denied the claim finding that O’Neil failed to prove that any injuries to her brachial plexus, neck, collarbone, left arm, left ear, or mouth were directly related to the incident or a composable consequence of that incident. The Commission again reversed with respect to the injuries to her brachial plexus, neck, collarbone, and left arm, but not those related to her ear. So, we know the origin of the first two issues . . . but what about the “unrelated case”?  Well, as I said, it’s going to be a bumpy night.

The Court of Appeals, Judge Callins writing for herself and Judges Huff and Lorish, first address the res judicata issue.  Res judicata can apply to Worker’s Compensation cases, but it’s not quite as straightforward as in civil law, because “when res judicata conflicts with other public policy considerations, [the Court] must balance application of the doctrine against those other considerations.” This, the appellate courts “recognize that a “[w]orkers’ compensation case, of course, cannot always be concluded in a single evidentiary hearing,” and have therefore affirmed the Commission’s ‘tailored . . . application of res judicata to take into account allegations of injury that, while pled in the initial claim may nonetheless not be ripe for final adjudication.'”

One of the ways that a claimant can avoid res judicata is if she never had the opportunity to present evidence to the Commission and, in doing so, failed to establish all her claims.  The Court of Appeals has already held that where there is no claim, but only an agreed award, the lack of an opportunity to present evidence means that there was also no opportunity to “waive” a future claim by failing to present evidence.  Today, the Court answers the question of whether the filing of a claim followed by an agreed award without an evidentiary hearing likewise avoids res judicata. The Court holds that the same rationale applies — no evidentiary hearing means no waiver of claims not proven.

As to the finding that the injuries were caused by the workplace accident, the County argued that there was insufficient expert evidence to establish causation.  The Court responds that the Commission can rely on medical evidence and draw its on conclusion about causation and that its decision is review in the light most favorable to the prevailing party.  I guess that was more polite than my reaction to this issue which was “Ummm . . .No.”

Finally, what’s this about not being permitted to present argument in an “unrelated proceeding”? Well, it turns out that O’Neil, while pro se at the appeal level, had counsel before the Commission and this attorney, whose identity is sadly not revealed because he or she deserves credit IMHO, had three cases with the same res judicata issue. The attorney requested that the Commission consider one of the cases first and then apply its finding to the others. The County sought to present argument in that case, and the Commission declined.

On appeal, the County argues that it was denied due process because the Commission’s decision in the other case was, effectively, the final word on the issue at that level.  The Court raises an interesting point, which is that it has never expressly held that a governmental entity has due process rights in a worker’s compensation setting.  Rather than resolve the issue, which was not raised by O’Neil, the Court assumed that due process would apply, but finds that it was not denied here.

First, the Court notes that the Commission’s rules do not allow for the intervening of disinterested parties to the claim.  The County was interested in the legal issue, not the claim in the other case.  Second, the County was permitted to argue the issue in its case, it was just disappointed that it had to do so in the face of the precedent for the other case — hardly a unique position.

The other two opinions today are both from criminal cases. The first Michael Angelo Street v. Commonwealth of Virginia is more or less a repeat of last week’s Montgomery v. Commonwealth, a 2-1 affirmance finding that the statutory elimination of “plain smell” of marijuana as a basis for searching a vehicle did not apply retroactively.  I predicted that Montgomery would not be the last word on that issue, but I didn’t expect another case quite so soon. In Street there was no dissent, with Chief Judge Decker joined by Judges Athey and Chaney affirming Streets conviction upon a finding that the search was (at the time) lawful.

Finally, we have a split-decision in Jordan Darrell Morris v. Commonwealth of Virginia, a case involving the medical-amnesty statute, Code § 18.2-251.03, which shields from arrest or prosecution those persons who seek emergency medical assistance because they are experiencing a drug overdose.  The facts are very specific here, but the broader issue of the appeal will have application in many instances.  Specifically, that issue is whether the person claiming immunity for seeking medical aid for an overdose must actually be experiencing an overdose.  That is, must there be medical evidence that the defendant was suffering a medical crisis, or is the subjective belief that he is sufficient to invoke the immunity of the statute.

Morris was arrested on his way to emergency room — indeed, the police found him in his vehicle stopped in the driveway of the facility.  Morris was under the influence of some intoxicating pharmaceuticals and told the officers who stopped his vehicle that he was contemplating committing suicide by an overdose of those drugs, saying that that using drugs (crack cocaine, as it turned out) made him suicidal.  He told the officers that he was at the emergency room to “get help.”

When tried for possession in violation of Code § 18.2-250 and DUI-D, Morris sought to suppress the evidence under the medical-amnesty statute.  The Commonwealth argued that there was no evidence that Morris was seeking treatment for an overdose, or was in fact suffering an overdose.  The issue was presented to the court on stipulated facts.  The circuit court agreed with the Commonwealth that there was no evidence of a life-threatening condition from the ingestion of drugs which was required to provide immunity from prosecution.  Morris entered a Alford plea and this appeal followed.

The majority, Judge Raphael joined by Justice Ortiz, concludes that the statute must be broadly construed both with respect to whether the existence of the life-threatening condition is present — the defendant’s subjective belief that he is in medical crisis being enough to satisfy that part of the statute.  The majority also finds that suicidal ideation as a a result of ingestion of drugs is a life-threatening condition arising from an (over)dose.  In other words, the majority reasons that if the drugs create or enhance a desire to commit suicide, the defendant as taken too many drugs, even if it isn’t the “overdoes” that is the direct cause of the medical crisis that can lead to death.  The Court vacates and remands for a new proceeding on the motion to suppress under the standard articulated in the opinion.

One element of the case has to do with standard of review for the stipulation of facts and how they are to be viewed on appeal.  The Commonwealth only reluctantly stipulated to the facts when pressed by the trial court, and argues on appeal (with the agreement of Street) that it is now entitled to a favorable view of the stipulations.  The majority, in a footnote, disagreed, saying that stipulated facts are not in dispute and that the appellate court is in the same position as the trial court to weigh the stipulations.  Now, what I find interesting about this is that in the first Virginia Appellate Academy to be held this week in Charlottesville, the sample case that the participants have briefed and will argue includes a stipulation of facts . . . and the question of the standard of review for stipulations might very well come up in the mock arguments.

Judge, now Justice, Russell dissents. Judge Russell says that the majority is making policy by interpreting the statute well beyond the plain meaning of its words.  Specifically, the word “overdose,” in his view, has a clear meaning — a medical crisis in which an excess amount of pharmaceuticals produces a physical medical crisis that requires medical attention. The dissent in 19-pages and has much more to say about the actual facts of this case, but I think it is fair to say that this observation highlights the main point of contention between the majority and the dissent.  While the question of whether the “overdose” is subjective or objective, one still has to agree on what an “overdose” is.

Before today, I would have assumed that Judge Russell’s definition was what was intended by the legislature — but by the same token, I don’t think I would have considered the position put forward by Morris and adopted by the majority.  While I think Morris’s case is a weak one, I can certainly think of a similar fact pattern — the “bad trip.”  Suppose the defendant’s life functions are not in danger, but the drugs are nonetheless causing him to have a psychotic break and he believes a demon has entered his body and he must cut it out by disemboweling himself — yet somehow he retains a sufficient awareness to seek medical help?  As with the “plain smell,” I think we are bound to see more on this issue — though probably not as soon as next week.