Hamid Tabibi v. Westminster-Canterbury on Chesapeake Bay & Eastern Alliance Insurace Company

• Court: Court of Appeals of Virginia
• Decided: October 8, 2019
• Docket: 0991191
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Petty, Athey and Senior Judge Clements UNPUBLISHED

HAMID TABIBI MEMORANDUM OPINION* v. Record No. 0991-19-1 PER CURIAM OCTOBER 8, 2019 WESTMINSTER-CANTERBURY ON CHESAPEAKE BAY AND EASTERN ALLIANCE INSURANCE COMPANY

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

(Hamid Tabibi, on brief), pro se.

(Adam S. Rafal; W. Thomas Chappell; Vandeventer Black LLP, on brief), for appellees.

Hamid Tabibi (“claimant”) appeals a decision of the Workers’ Compensation

Commission finding that he failed to prove compensable injuries by accident on January 5, 2018,

or on March 2, 2018.1 We summarily affirm the Commission’s decision based on claimant’s

noncompliance with the Rules of Court.

On July 26, 2019, claimant filed a letter with this Court stating:

I am writing this letter in reference [] to the letter dated July 18, 2019, record No. 0991-19-1 to appeal your decision of denying my injury claim.

I disagree with the medical report that the Westminster Canterbury physician prepared. It didn’t show the real health issue I am experiencing every day due to the work injury.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 The Commission addressed both claims in its opinion. See Tabibi v. Westminster-Canterbury on Chesapeake Bay, et al., JCN Nos. VA00001421232 and VA00001441429 (VA Wrk. Comp. May 9, 2019). Please review the medical report that I attached to this letter, it is from Beach Health Clinic . . . . It clearly shows that the physical pain and trauma I go through every day is due to the injury that occurred at work.

On August 21, 2019, the Court informed claimant that his opening brief failed to comply

with the Rules of Court in several respects and directed him to file a compliant, amended

opening brief within ten days. On August 30, 2019, claimant filed a letter with the Court stating

that he had worked at Westminster Canterbury from March 9, 1998 through July 8, 2018, and

enclosed pictures and medical records. Claimant stated that the pictures depicted the site of his

fall and noted that he had suffered pain in his neck, shoulder, and arm since the fall. The letter

made no reference to the Commission’s ruling. On September 17, 2019, appellant filed the letter

and attachments with the Court again, but on this occasion, included a certificate of service.

Claimant has failed to cure the deficiencies in his opening brief. Rule 5A:20(c) requires

that the opening brief include “[a] statement of the assignments of error with a clear and exact

reference to the page(s) of the transcript, written statement, record, or appendix where each

assignment of error was preserved in the trial court.” Even assuming that the opening brief

assigned error to the Commission’s rulings, it does not state where in the record the issues in the

assignments of error were preserved for appeal, as required by Rule 5A:20(c), or the governing

standard of review for each assignment of error, as required by Rule 5A:20(e).

The purpose of assignments of error is to “point out the errors with reasonable certainty

in order to direct [the] court and opposing counsel to the points on which appellant intends to ask

a reversal of the judgment, and to limit discussion to these points.” Carroll v. Commonwealth,

280 Va. 641, 649 (2010) (quoting Yeatts v. Murray, 249 Va. 285, 290 (1995)). An appellant

must “lay his finger on the error.” Id. Claimant failed to do so.

In addition, the original opening brief does not include a “statement of facts” that

complies with Rule 5A:20(d). It does not contain a separate statement of facts that relates to -2- each assignment of error or refer to the pages in the transcript, appendix, written statement of

facts, or record where these facts were established.

The opening brief does not comply with Rule 5A:20(e), which mandates that the opening

brief include “the argument (including principles of law and authorities) relating to each

assignment of error.” The opening brief does not include an argument section “relating to each

assignment of error.”

“Unsupported assertions of error do not merit appellate consideration.” Fadness v.

Fadness, 52 Va. App. 833, 850 (2008) (quoting Jones v. Commonwealth, 51 Va. App. 730, 734

(2008)). “If an appellant believes that the [C]ommission erred, it is incumbent upon him ‘to

present that error to us with legal authority to support [his] contention.’” Ceres Marine

Terminals v. Armstrong, 59 Va. App. 694, 708 (2012) (quoting Fadness, 52 Va. App. at 851).

“[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)).

“[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.”). Here, we find that claimant’s failure to comply with Rule 5A:20 is

-3- significant. See Jay v. Commonwealth, 275 Va. 510, 520 (2008). Claimant was provided with

an opportunity to cure the defects in his opening brief and failed to do so.

Accordingly, we summarily affirm the Commission’s decision. See Code § 17.1-403;

Rule 5A:27.

Affirmed.

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