Multiple Attempts to Obtain Workers’ Additional Compensation Benefits Fails For Failure to Follow Rules
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IT DOES NOT PAY TO ANNOY A COURT OF APPEAL
In Marty D. Foust v. Lawrence Brothers, Inc. And American Interstate Insurance Company, No. 1146-21-3, Court of Appeals of Virginia (December 13, 2022) Marty D. Foust challenged a September 22, 2021 opinion of the Virginia Workers’ Compensation Commission denying his request for certain medical and disability benefits.
On appeal from a decision of the Workers’ Compensation Commission, the evidence and all reasonable inferences that may be drawn from that evidence are viewed in the light most favorable to the party prevailing below.
Foust suffered a compensable injury by accident when he sustained second and third degree burns to his chest, left elbow, abdomen/flank area, and left upper extremity. The parties stipulated that Foust was entitled to temporary total disability benefits and that his pre-injury average weekly wage was $605. Accordingly, on January 5, 2012, a deputy commissioner awarded Foust lifetime medical benefits and $403.33 per week in temporary total disability benefits based on his stipulated average weekly wage.
In June 2015, the employer filed a request for a hearing seeking the termination of Foust’s temporary total disability benefits because he was capable of returning to his pre-injury work. Foust filed a competing request for a hearing seeking to recognize “Dr. Karvelas” as his “authorized treating physician” and for the Commission to approve certain treatments and “studies ordered by Dr. Karvelas.” In addition, Foust asserted that he had suffered a stroke in May 2012, which “should be recognized as a compensable consequence” of his work-related injury. After a hearing, a deputy commissioner held that:
- Foust was incapable of returning to his pre-injury employment,
- Dr. Karvelas was not an authorized treating physician, and
- Foust’s May 2012 stroke was not a compensable consequence of his work-related injury.
In May 2016, Foust filed a request for a hearing seeking a new treating physician. The Commission “treat[ed]” the letter “as a claim for a change in treating neurologists” and referred the matter to the “Claims Services Department for processing.”
Following that ruling, Foust filed additional requests for hearings on December 5, 2016, February 21, 2017, and April 26, 2017. In the requests, he again asserted that he suffered “strokes” and “mini-strokes” that were compensable consequences of his work-related injury. In addition, Foust requested:
- a change in his treating neurologist,
- raises and vacation pay he would have received but for his injury,
- permanent disability benefits for scarring and disfigurement, and
- medical benefits for his “chronic pain” and “scar neuroma or tumors from [his] burn injury that caused [an] injury to [his] spine called ‘thoracic arachnoid web with cord compression.'”
After a hearing on the above claims, a deputy commissioner found that Foust’s claim that his stroke was a compensable consequence was barred by res judicata, denied as non-compensable Foust’s claims for benefits due to chronic pain, lost vacation pay, and lost raises, denied Foust’s claim for benefits to treat his thoracic arachnoid web with spinal cord compression, dismissed his claim for permanent disability benefits as “not ripe for adjudication,” granted his request for panels of neurologists and pain management physicians, and granted his request for medical treatment of his symptomatic scar neuroma. On review, the Commission affirmed the deputy commissioner’s judgment. Foust appealed to the Virginia Court of Appeals which summarily affirmed the Commission’s judgment.
The present proceedings arise from additional requests for hearings. Foust’s assertion that his accident was “responsible for everything that is wrong with him because nothing was wrong with him before he got hurt” was insufficient as a matter of law.
Where a party fails to develop an argument in support of his or her contention or merely constructs a skeletal argument, the issue is waived.
Foust’s opening brief contained no standards of review or legal authority supporting his assignments of error. Instead, much of his brief is devoted to general arguments that his former attorney, employer, and the Commission conspired to deny him due process, “murder” him, and “defraud” him of benefits through insurance fraud, misrepresentation, hate crimes, white collar crimes, and racketeering.
Foust’s argument is filled with factual assertions and allegations, some of which are unsupported by the record and left the Court without a legal prism through which to view his alleged errors. Thus, the Court of Appeal found Foust’s failure to comply with the court’s rules in this case significant, his arguments were waived and the order was affirmed.
Every litigant has the right to appeal the decision of a court or a Workers’ Compensation Board. However, in doing so the person appealing must actually comply with the rules of the Court of Appeals, make claims that are compensable, and accept the fact that when an appellate court rules against the litigant he has no right to try again using ridiculous claims like that the insurer and employer are attempting to murder him. The court ruled without oral argument because the appeal was totally without merit.
(c) 2022 Barry Zalma & ClaimSchool, Inc.
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Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business. He is available at http://www.zalma.com and firstname.lastname@example.org
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