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IT IS NOT WORTH GOING TO 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.
BACKGROUND
On appeal from a decision of the Workers’ Compensation Commission, the evidence and any reasonable inferences that may be drawn from that evidence are viewed in the light most favorable to the prevailing party below.
Previous litigation
Foust sustained a compensable injury from an accident when he suffered 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 earnings were $605. Accordingly, on January 5, 2012, an Assistant Commissioner awarded Foust lifetime medical benefits and $403.33 per week in temporary total disability benefits based on his determined average weekly wages.
In June 2015, the employer filed a request for a hearing requesting that Foust’s temporary total disability benefits be terminated based on his ability to return to his pre-injury work. Foust filed a competing request for a hearing to recognize “Dr. Karvelas” as his “authorized attending physician” and for the commission to approve certain treatments and “studies ordered by Dr. Karvelas.” In addition, Foust claimed that he had suffered a stroke in May 2012, which “should be recognized as a compensable consequence” of his work injury. After a hearing, an Assistant Commissioner held that:
- Foust was unable to return to his pre-injury employment,
- Dr. Karvelas was not an authorized attending physician, and
- Foust’s stroke in May 2012 was not a compensable consequence of his work injury.
In May 2016, Foust filed a request for a hearing to seek a new attending physician. The commission “treat[ed]” the letter “as a demand for a change of treating neurologists” and referred the case to the “Complaints Department for treatment.”
Following that decision, Foust filed additional requests for hearings on December 5, 2016, February 21, 2017, and April 26, 2017. In the petitions, he again claimed that he suffered “strokes” and “mini-strokes” that were compensable consequences of his work injury. In addition, Foust requested:
- a change in his treating neurologist,
- salary increases and holiday pay he would have received had he not been injured,
- permanent disability benefits for scarring and disfigurement, and
- medical benefits for his “chronic pain” and “scar neuromas or tumors from [his] burn that caused [an] damage to [his] spine called ‘thoracic cobweb with cord compression’.”
After a hearing on the above claims, an Assistant Commissioner found that Foust’s claim that his stroke was a compensable consequence was barred by res judicatadenied Foust’s claim for benefits for chronic pain, lost vacation pay, and lost wages, denied Foust’s claim for benefits to treat his thoracic spider webbing with spinal cord compression, denied his claim for permanent disability compensation 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.
Current actions
The current proceedings are based on further requests for hearings. Foust’s claim that his accident was “responsible for everything wrong with him because nothing was wrong with him before he was injured” was insufficient as a matter of law.
ANALYSIS
If a party fails to develop an argument in support of its claim or constructs only a skeleton 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 a trial, “murder” him, and “cheat” him out of benefits through insurance fraud, misrepresentation, hate crimes, white-collar crime, and extortion.
Foust’s argument is filled with factual assertions and assertions, some of which lack support in the record and left the court without a legal prism through which to view his alleged errors. The Court of Appeal thus found Foust’s failure to follow the court’s rules in this case to be significant, his arguments were dismissed and the decision was upheld.
Each disputing party has the right to appeal a decision of a court or a workers’ compensation board. On the other hand, the person who appeals must actually follow the rules of the Court of Appeal, make claims that are compensatory and accept the fact that when an Court of Appeal rules against the plaintiff, he has no right to try again with ridiculous claims such as e.g. that the insurer and employer are trying to kill him. The court ruled without oral argument because the appeal was completely unfounded.
(c) 2022 Barry Zalma & ClaimSchool, Inc.
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Barry Zalma, Esq., CFE, now limits his practice to serving as an insurance consultant specializing in insurance coverage, insurance claims management, 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 attorney and more than 54 years in the insurance industry. He can be reached at http://www.zalma.com and zalma@zalma.com
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