'Skeletal' Argument Pops Worker's Push for COLA

15 Dec, 2022 Frank Ferreri

                               

Richmond, VA (WorkersCompensation.com) -- For a worker taking his claims to court, procedural requirements aren’t something to take lightly. 

Such was what a worker found out in Foust v. Lawrence Brothers Inc., No. 1144-21-3 (Va. Ct. App. 12/13/22, unpublished), where the court reminded everyone that when “a party fails to develop an argument in support of his or her contention or merely constructs a skeletal argument, the issue is waived.” 

A worker experienced a compensable injury by accident when he experienced second and third degree burns to his chest, left elbow, abdomen and flank area, and left upper extremity. 

The parties stipulated that the worker was entitled to temporary total disability benefits and that his pre-injury average weekly wage $605. Accordingly, a deputy commissioner awarded the worker lifetime medical benefits and $403.33 per week in temporary total disability benefits. 

Later, the worker filed a claim seeking a cost of living adjustment. In response, the employer argued that the worker was not entitled to a COLA and that any entitlement to a COLA was offset by a total of $6,206.86 in overpayments. 

A deputy commissioner issued an opinion finding that the worker did not qualify for a COLA because the combined total of his workers’ compensation benefits and Social Security benefits exceed 80 percent of his pre-injury average monthly income.  

The worker appealed to court. 

There, the court zeroed in on procedural requirements the worker failed to meet, explaining that under Virginia law, an opening brief must contain: 1) the standard of review; and 2) the argument, including principles of law and authorities, relating to each assignment of error. 

The worker failed to do so in his brief, failing to “provide any ‘legal analysis’ or argument.” 

“Instead, the argument section of his brief is replete with factual assertions and allegations, many of which are not found in the record,” the court explained. 

As a result, the court upheld the Commission’s judgment against the worker. 

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    About The Author

    • Frank Ferreri

      Frank Ferreri, M.A., J.D. covers workers' compensation legal issues. He has published books, articles, and other material on multiple areas of employment, insurance, and disability law. Frank received his master's degree from the University of South Florida and juris doctor from the University of Florida Levin College of Law.

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