The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

Two Appeals from last week . . . neither one in a criminal matter

The Court of Appeals broke a long string of issuing cases only in criminal matters (assuming you count the expungement decision from mid-October as a criminal matter), and issues two opinions, one in a Worker's Comp case and (drum roll please) one in a civil cases that is not from a domestic relations case. As the Sage of Virginia Beach correctly points out, this is the first published decision from such as case since the Court of Appeals started hearing these former Supreme Court jurisdiction cases. As Steve Emmert has graciously ceded to me the summary of Court of Appeals cases that were his former bailiwick when they were heard on the opposite side of Franklin Street from the Court of Appeals, I shall begin with Dakshay Patel, et al. v. Jonathan I. Rabinowitz ex rel. Lakhani Associates, LLC, et al.


The case involves the Uniform Interstate Depositions and Discovery Act (UIDDA), Code §§ 8.01-412.8 to 8.01-412.15 and address whether an out-of-state judgment creditor may serve an out-of-state document subpoena on third parties in Virginia when the judgment creditor only suspects that those third parties might hold property or assets belonging to the judgment debtor. The answer is no. Why did I give up the prize so readily? Well, because quite frankly this a 14-page discussion of how this UIA is interpreted and applied in other states to answer this question, which is one of first impression in Virginia. It includes a history of the slow process of states adopting this particular UIA -- something fairly common to all UIAs.


Here's the short version -- the law of Virginia controls whether the subpoena is proper and under Virginia law a post-judgment creditor subpoena can only be served on a known bailee or debtor or a third-party creditor of the judgment debtor. While acknowledging that Virginia follows a minority view in such cases, the fact remains that it is Virginia's law that applies under the UIDDA and it is not for the Court to question the wisdom of the General Assembly in adopting the minority view.


I should like to tell you that Medical Management Intl. and Travelers Indemnity Company of America v. Pamela Jeffry from the Workers' Compensation Commission, and thus an "old jurisdiction" case, was more lively, but I am told that it's wrong to lie. If fact, it's sort of a "well duh" opinion. By this I mean, I really can't see how the employer and carrier brought this case with a straight face, because the issue is whether an injured worker who was rendered unable to drive is entitled to receive reimbursement for transportation costs when going to medical appointments related to her compensible injury. Now, the issue before the Commission was whether Jeffry had to give notice to her employer that she was using a "rideshare" service for this purpose (presumably to allow them to provide an alternative transportation method). The Commission found that the employer and carrier suffered no prejudice as a result of the lack of notice.


The "well, duh" part of the opinion comes from the determination of the Court of Appeals that prejudice is not the issue, it's whether the Workers' Compensation Act requires notice of the need for transportation at all. The Court quite correctly concludes that there is no such requirement. The Court notes that the Act is replete with notice requirements that limit a worker's ability to get certain benefits or to make certain claims, but there is nary a hint of such requirement when necessary transportation expenses are compensible.


I am curious as to whether the employer and carrier were actually willing to offer some form of transportation that would have been more affordable to them than the rideshare app? The opinion states that they did not offer transportation to Jeffrys, but presumably id she had been proving them notice that she need it, they would have had to make some arrangements. If so, I wonder if it would have been as convenient for Jeffry. While one might argue that convenience is not a paramount concern in such situations, I tend to think that most employers and carriers would not be able to provide transportation to medical appointments at a lower cost unless it was through a service that made multiple pick-ups and stops. More to the point, Jeffrys only used the service as a "last resort," whereas had her employer or the carrier required her to use an "authorized" service, she likely would have used it all the time.

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