Bricia Roslyn Bryant v. Staybright Electric and Old Republic Insurance Company

COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Huff and Senior Judge Clements
UNPUBLISHED
BRICIA ROSLYN BRYANT
MEMORANDUM OPINION*
v. Record No. 0017-19-4 PER CURIAM
JULY 30, 2019
STAYBRIGHT ELECTRIC AND
OLD REPUBLIC INSURANCE COMPANY
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Bricia Roslyn Bryant, on brief), pro se.
(Brian L. Sykes; W. Thomas Chappell; Vandeventer Black, LLC, on
brief), for appellees.
Bricia Roslyn Bryant (“claimant”) appeals a decision of the Workers’ Compensation
Commission (“the Commission”) on November 7, 2018, finding that “she did not prove her
entitlement to additional causally related disability, injuries, or need for medical treatment” other
than that awarded on May 15, 2017, for injuries to her left hand, left knee, and lower back.
Staybright Electric and Old Republic Insurance Company (“employer”) assert that claimant’s
appeal should be dismissed because her opening brief failed to comply with the Rules of Court.
However, “[i]n the event that this Court rules that [c]laimant raised legitimate error by the
Commission,” employer asks that we consider its two cross-assignments of error. In those
cross-assignments, employer contends that the deputy commissioner and the Commission “erred
in failing to rule that [c]laimant’s claims were barred by the doctrine of res judicata/claims
preclusion[,]” and “in failing to rule that [c]laimant was validly terminated for cause and
constructively refused selective employment.” Because we summarily affirm the Commission’s
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
decision based on claimant’s failure to comply with the Rules of Court, we need not reach
employer’s cross-assignments of error.
Background
On May 15, 2017, appellant was awarded medical benefits and two days of total
disability benefits for a compensable injury to her left hand, left knee, and lower back arising out
of a work-related accident on September 30, 2016. Following that award, claimant filed several
additional claims for benefits, seeking additional medical treatment, reimbursement of
treatment-related expenses, and a new panel of physicians. She also sought temporary total
disability benefits beginning October 16, 2016, a determination that she experienced an
occupational disease as a result of the September accident, and inclusion of her neck, left side,
and left arm as compensable injuries. Following a hearing, the deputy commissioner denied
claimant’s claims for additional benefits,1 adopting the testimony of Dr. Raley, the physician
who performed an independent medical examination (“IME”) of claimant. Dr. Raley testified
that claimant suffered relatively minor injuries to her left hand, left knee, and back in September
2016 that should have resolved within a few weeks. He also opined that claimant experienced no
further injuries as a result of her accident, that she required no further medical treatment, and that
she was capable of returning to full-duty work. The deputy commissioner found that, based
upon its observations of claimant during the hearing, as well as her secret recording of
Dr. Raley’s IME without his consent, she was not a credible witness. Accordingly, the deputy
commissioner also discredited any opinions from claimant’s treating physicians relating her
additional injuries, symptoms, disability, and need for medical treatment to her September 2016
1
The deputy commissioner ruled that claimant’s May 15, 2017 award entitled her to
reimbursement for out-of-pocket and mileage expenses associated with reasonable, necessary,
and causally related medical treatment previously authorized by employer.
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accident, reasoning that those opinions were based on “inaccurate histories supplied to them by
the claimant.”
Further, the deputy commissioner rejected employer’s defenses that claimant’s new
claims were barred by the doctrines of res judicata or claim preclusion, or that claimant was
terminated for cause on October 6, 2016, thereby precluding her from further benefits. Finally,
the deputy commissioner ruled that claimant’s termination did not result in a constructive refusal
of selective employment. The deputy commissioner found that the testimony from claimant’s
supervisor, Ronnie Charpentier, regarding the circumstances surrounding her termination was
“not at all” persuasive.
Both parties appealed to the full Commission. The Commission deferred to the deputy
commissioner’s credibility findings rejecting claimant’s testimony in favor of Dr. Raley’s
testimony, and held that claimant had failed to prove that she was disabled or that the medical
treatment she sought was causally related to her September 2016 accident. Based on that ruling,
the Commission found it unnecessary to reach the employer’s argument that her claims were
barred by res judicata or claim preclusion. However, the Commission affirmed the deputy
commissioner’s decision that claimant was not terminated for cause, adopting the deputy
commissioner’s finding that Charpentier’s testimony was not credible.
This appeal followed.
Analysis
Claimant’s opening brief and appendix do not comply with the Rules of Court. The
opening brief does not comply with Rule 5A:20(e), which mandates that appellant’s opening
brief include “[t]he standard of review and the argument (including principles of law and
authorities) relating to each assignment of error.” Claimant includes a section in her brief titled
“Standard of Review.” However, it does not provide the standard of review.
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Further, the opening brief does not include an argument section “relating to each
assignment of error.” The assignments of error are not numbered, but instead appear in
“clusters” of topics beneath headings. Rather than include the standard of review and argument
“relating to each assignment of error,” the opening brief instead lists several subsections under
the standard of review heading containing random arguments that are organized by entirely
different topics than those listed in the assignments of error.
In addition, the opening brief does not contain “a clear and concise statement of the facts
that relate to the assignments of error, with references to the pages of the . . . appendix.” Rule
5A:20(d). Despite the inclusion of approximately2 twenty assignments of error in her brief,
claimant’s statement of facts is less than a page long and provides only three paragraphs of the
procedural history of the case, including a purported excerpt from proceedings before
“Workforce West Virginia.” The statement of facts does not comply with the requirements of
Rule 5A:20(d).
Finally, claimant did not comply with Rule 5A:25(d) by filing “a statement of the
assignments of error and a designation of the contents to be included in the appendix within
fifteen days after the filing of the record” with this Court. Although she filed an appendix after
this Court issued a show cause order on February 25, 2019, her failure to file a statement of the
assignments of error and a designation of appendix contents deprived employer of the ability to
designate additional parts of the record that it considered germane to the appeal. See Rule
5A:25(d). Further, because the pages in the appendix are not consecutively numbered, neither
party can cite to a specific page; instead, claimant cites only to “clusters” of pages when
identifying where each of her assignments of error was preserved.
2
The assignments of error are not numbered.
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“[W]hen a party’s failure to strictly adhere to the requirements of Rule 5A:20(e) is
significant, the Court of Appeals may . . . treat a[n assignment of error] as waived.” Atkins v.
Commonwealth, 57 Va. App. 2, 20 (2010) (quoting Parks v. Parks, 52 Va. App. 663, 664
(2008)). A pro se litigant “is no less bound by the rules of procedure and substantive law than a
defendant represented by counsel.” Townes v. Commonwealth, 234 Va. 307, 319 (1987); see
also Francis v. Francis, 30 Va. App. 584, 591 (1999) (“Even pro se litigants must comply with
the rules of court.”). “[I]t is not the function of this Court to ‘search the record for error in order
to interpret the appellant’s contention and correct deficiencies in a brief.’” West v. West, 59
Va. App. 225, 235 (2011) (quoting Buchanan v. Buchanan, 14 Va. App. 53, 56 (1992)). “Nor is
it this Court’s ‘function to comb through the record . . . in order to ferret-out for ourselves the
validity of [appellant’s] claims.’” Burke v. Catawba Hosp., 59 Va. App. 828, 838 (2012)
(quoting Fitzgerald v. Bass, 6 Va. App. 38, 56 n.7 (1988) (en banc)).
We find that claimant’s failure to comply with Rule 5A:20(d), 5A:20(e), and 5A:25(d) is
significant, so we will not consider her arguments. See Jay v. Commonwealth, 275 Va. 510, 520
(2008). Accordingly, we summarily affirm the decision of the Commission.3 Rule 5A:27.
Affirmed.
3
Employer asks that we review its cross-assignments of error only if claimant’s opening
brief raises “legitimate error” in the Commission’s decision. Because we affirm the
Commission’s decision, we find it unnecessary to address the cross-assignments of error.
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