8.2 Procedural Considerations

• Library: Workers' Compensation Practice in Virginia (Virginia CLE) (2020 Ed.)

8.2 PROCEDURAL CONSIDERATIONS

8.201 Forum Selection, Estoppel, and Res Judicata.

A. In General. An employee may file simultaneous actions under the Act and at law. ¹²³ If there is any doubt as to whether a personal injury action or a workers' compensation claim is the proper vehicle for the injured individual, the attorney should file both actions in order to avoid the possibility of being barred by the statute of limitations. Moreover, employees bringing personal injury actions against employers and third parties are not required to first file workers' compensation claims where it is clear on the pleadings that the claim "is not compensable under and not barred by the Virginia Workers' Compensation Act." ¹²⁴ Since the employer or statutory employer is barred from taking inconsistent positions by Sections 65.2-706.1 and 8.01-420.5 of the Virginia Code and Richfood, Inc. v. Ragsdale, ¹²⁵ the injured individual is in a far stronger position than ever before. While section 65.2-706.1 and Ragsdale seemingly overturn Plummer v. Landmark Communications, Inc. ¹²⁶ and overrule Griffith v. Raven Red Ash Coal Co., ¹²⁷ it

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should be noted that section 65.2-706.1 applies only when the parties in the workers' compensation claim and in the action at law are the same and does not apply when the workers' compensation claim is against one employer and the action at law is against a putative statutory employer.

Under section 65.2-706.1, a final, unappealed award by the Commission that a person is or is not an employee of another estops either of the parties from asserting otherwise in any subsequent action between the parties on the same claim or cause of action in a Virginia court. It is unclear whether sections 65.2-706.1 and 8.01-420.5 are limited to this particular finding or whether they will be extended to include other findings by the Commission.

B. What Facts Govern. In Plummer, the plaintiff, a newspaper carrier, was shot while waiting to collect her newspapers at a drop-off site. Plummer filed a claim for benefits under the Act, alleging that she was injured in an accident arising out of and in the course of her employment. While this claim was pending, Plummer filed a common law action claiming that she was operating as an independent contractor under the direction and control of Landmark. Plummer asserted that Landmark was negligent in failing to provide a safe place to work. The Commission, in denying benefits, decided that Plummer was an employee of Landmark and that the accident did not arise out of her employment, although the accident clearly did arise in the course of her employment. Plummer then amended her motion for judgment to allege that she was an employee acting under the direction and control of Landmark. Landmark filed a plea in bar claiming the exclusivity provisions of the Act, which was sustained by the court, and the suit was dismissed.

In the common law action, the employee denied entitlement to workers' compensation benefits to escape the exclusive remedy rule, even though she affirmatively claimed entitlement to these benefits before the Commission. The employer denied that compensation was owed under the Act before the Commission but asserted in the common law action that the employee would be entitled to benefits under the Act based on the allegations made in this action to take advantage of the exclusive remedy rule. The court noted that the plaintiff's own motion for judgment alleged that Landmark was her employer. As the court noted, the plaintiff might well have been

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entitled to an award of benefits if the allegations had been made before the Commission. Based on the plaintiff's own allegations in the common law suit, the plaintiff's claim was barred, as her exclusive remedy should have been under the Act.

Plummer cited Griffith for the proposition that when a jurisdictional plea is asserted in a tort action where the Commission has already ruled that the plaintiff-claimant is not entitled to benefits under the Act, the court will compare the facts presented to the Commission with those presented in the common law action. If they are substantially the same, the Commission's ruling is conclusive, and the tort action may proceed. However, where the facts asserted differ from facts previously asserted before the Commission, the present allegations will be used to determine whether the tort action may be maintained. Under Sections 65.2-706.1 and 8.01-420.5, it is not clear that this is the test to be used to determine which facts govern in a common law action. These sections do not mention comparing the facts presented to the Commission with those in the common law action. Instead, these sections provide that a final, unappealed award by the Commission or order of circuit court that a person is or is not an employee of another will estop either of the parties from asserting otherwise in a subsequent action in a Virginia court.

C. Res Judicata. It is also not clear what effect section 65.2-706.1 will have on the doctrine of res judicata. In Lloyd v. American Motor Inns, Inc., ¹²⁸ the court stated that the Commission is a court of competent jurisdiction and, when it rules on an issue pursuant to its authority, that determination is res judicata to any later consideration of the same issue between the same parties or their privies. However, a denial of an award of compensation on the ground that the injury did not...