Opposition Brief — Holland v. Virginia

4° Supreme Court, U.S.

No.___ 92-50 _ EILED

| WE 24 wee

dn Che ‘QREGE OF THE QUBRK

Supreme Court Of Che United States

OCTOBER TERM, 1992

KENNETH EDWARD HGLLAND,

Petitioner,

Ve

THE COMMONWEALTH OF VIRGINIA,

THE INDUSTRIAL COMMISSION OF VIRGINIA,

VIRGINIA BRIDGE AND STRUCTURES, INC.,

LIBERTY MUTUAL INSURANCE COMPANY,

JAMES D. DILLON, M.D.,

and

COMMONWEALTH NEUROSURGERY, LTD.,

Respondents. id

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

- FCR THE FOURTH CIRCUIT

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Alan B. Rashkind

FURNISS, DAVIS, RASHKIND and SAUNDERS, P.C.

Post Office Box 12525

Norfolk, VA 23502

(804) 461-7100

Counsel for Respondents

LAWYERS PRINTING COMPANY 7th & Franklin Bidg. Richmond, Virgima 23219 (804) 648 - 3664 &

QUESTIONS PRESENTED FOR REVIEW

l. Whether Petitioner states any

"special and important" reason why this

Court should grant this Petition and

whether the decision of the Fourth

Circuit Court of Appeals is even arguably

in conflict with other applicable

authorities?

2. Whether the Federal Courts have

jurisdiction to hear Petitioner's claim

for compensatory damages arising out of a

work-related injury, where Petitioner

sought and was awarded, by Virginia state

courts, certain recovery under Virginia's

Workers' Compensation Act, but was thére

denied the additional compensation he now

seeks from the Federal Courts?

3. Whether the Petiticner's

Complaint against these respondents

states a claim upon which relief may be

granted under 42 U.S.C. Section 1983,

where the Complaint fails to identify

constitutional rights which have been

deprived and fails to allege state action

by these respondents (Petitioner's

employer and that employer's Workers'

Compensation insurer)?

ii

TABLE OF CONTENTS

Questions Presented For- Review

Table of Authorities

Statement of Jurisdiction

Statement of the Case

Sulienaey of the Argument

Argument

Conclusion

iii

15

31

TABLE OF AUTHORITIES

Cases

Dahlberg v. Becker, 748 F.2d 85

(2d Cir.), cert. denied, 470

J ye ge) eee ee ee eee 27

Daniels v. Williams, 474 U.S.

327 (1986) OS Aa ae 22

Dillard and Williams, etc. v.

Industrial Commission of Virginia,

et al., 347 F.Supp 71 (1972),

vacated and remanded 416 U.S. 783,

94 S.Ct. 2028, 40 L.Ed.2d 540

(1974) a he ee ee ee

29

Flagq Bros., Inc. v. Brooks, 436

Wen SOF CENTER s be 48 ew ee 22

Haddon v. Metropolitan Life

Insurance Company, et al., 239

Va. 397, 389 S.E.2d 712 (1990) . 19

Holland v. Virginia Bridge and

Structures, Inc. and Liberty

Mutual Insurance Co., 10 Va. . :

App. 660, 394 S.E.2d 867 (1990). “an

Joyce v. A. C. & S., Inc., 785

F.2d 1200 (4th Cir. 1986)... . 19

Lugar v. Edmondson Oil Company,

459 U.S. 922, 102 S.Ct. 2744,

73 L.Ed.2d 482 (1982). ..... 26,27

Parratt v. Taylor, 451 U.S. 527

(1981) 2. 1 ee eels)

iv

Perrin v. Brunswick Corp., 333

F.Supp 221 (W.D. Va. 1971)... 19

Rendell-Baker v. Kohn, 457 U.S.

830, 102 S.Ct. 2764, 73 L.Ed.2d

aed Ae a te ee ee ee a 25

West v. Atkins 487 U.S. 42

Eo 5 ee ee ee 21

Statutes

28 U.S.C. Section 1254 ..... 1

42 U.S.C. Section 1983 . .12,13,16,17,22

Virginia Worker's Compensation

ne Ee ee Cee te ee ee Pe re ae 14,18

Virginia Code Section 65.1-1.. 18

Virginia Code Section 65.1-40. . 18

Virginia Code Section 65.1-75.1. 5,20

Virginia Code Section 65.1-88. . 10,28

Virginia Code Section 65.1-98.1. 5,20

Other Authorities

Federal Rules of Civil

Procedure 12(b)(1) .....«.e. 9

Federal Rules of Civil

Procecgure 12(b)(6) ... . «+s « « 9

Rules of the Supreme Court of

the United States, Rule 10... 1,15,16

STATEMENT OF JURISDICTION

The Petition for Writ of Certiorari

is sought from a final order of the

United States Court of Appeals for the

Fourth Circuit, dated February 21, 1992,

and that Court's denial of the Petition

for Rehearing, by Order dated March 20,

1992.

This Honorable Court has

jurisdiction to review the decision of

the Court of Appeals by writ of

certiorari pursuant to Title 28 U.S.C.

Section 1254. It is within the sole

discretion of this court to grant or deny

Such writ of certiorari based upon

whether "special and important" reasons

for the granting of such Writ are

presented. Rule 10, Rules of the Supreme

Court of the United States.

’

STATEMENT OF THE CASE

On March 25, 1988, Kenneth Holland,

while employed by Virginia Bridge and

Structures, Inc., an employer insured for

worker's compensation by Liberty Mutual

Insurance Company, Sustained a

compensable injury. An award was entered

in his favor providing compensation

during incapacity, commencing April 4,

1988 (see Joint Appendix from Court of

Appeals of Virginia, labelled as

Attachment 2 to Holland's Informal Brief

filed in the Fourth Circuit Court of

Appeals, hereinafter "Attachment 2," at

p. 2). On June 9, 1988, Holland declined

a certain diagnostic procedure because of

concern he expressed relative to the

procedure. On June 28, 1988, Liberty

Mutual filed a Notice of Applicetion for

Hearing, signed under oath, on account of

Holland's refusal of medical treatment

(Attachment 2, p. 32). The Notice was

mailed both to the Industrial Commission

of Virginia and Holland. On its face the

Notice advised Holland of his right to

present any statement of evidence in

Opposition within 15 days, and that the

Industrial Commission would make. an

initial determination on the basis of

preliminary evidence it received.

“Holland objected to the application in a

four page letter, with attachments, dated

June 30, 1988 (Attachment 2, pp. 33-36

By letter dated July 12, 1988, the

Industrial Commission informed Liberty

Mutual and Holland that it rejected the

application and that compensation

payments should be continued (Attachment

24, Pp. 39). On July 21, 1988, Liberty

Mutual filed another such application,

together with supporting medical report,

again with a copy to Holland (Attachment

2o BP. 41). Holland again opposed the

application; this time by writing dated

July 28, 1988 (Attachment 2, p. 42). On

August 9, 1988, the Industrial Commission

accepted this application, finding

probable cause in favor of the employer

on the basis of the preliminary evidence

received, and on August 17, 1988, a

hearing was scheduled to be held on

October 4, 1988 (Attachment 2, p. 43 and

p. 47).

On October 4, 1988, a hearing was

held before a deputy commissioner of the

Industrial Commission, Deputy

Commissioner Dely, and Holland appeared

in person. It was agreed by the parties

that the facts were not in dispute. Dely

found that Holland's concerns’ were

exaggerated and unreasonable and did not

warrant his refusal to undergo the

procedure (Attachment 2, pp. 79-88). On

review, the full Commission adopted the

findings and conclusions of the deputy

commissioner and affirmed his Order

(Attachment 2, pp. 123-127). On appeal

to the Court of Appeals of Virginia, the

judgment of the Industrial Commission was

reversed, and it was ordered tnat

Holland's benefits be reinstated

effective July 21, 1988 (see Opinion of

Court of Appeals of Virginia dated August

14, 1990, attached as an exhibit to

Complaint). Holland admits that benefits

were restored (Plaintiff's Reply to

Employer/Insurer's Motion to Dismiss, Dp.

12). Additionally, under Virginia Code

Section 65.1-98.1, Liberty Mutual was

also obligated to pay interest at the

rate of ten percent (10%) from July 21,

1988 through the date of payment, and

pursuant to Virginia Code Section 65.1-

75.1, paid a twenty percent (20%) penalty

SEE! LALLA LL

-

as well.

While the matter was on appeal to

the Court of Appeals, Holand had filed a

"Motion to Allow Additional Damages.""

This Motion was denied by the Court of

Appeals, by Order entered within two (2)

weeks after it ordered Holland's

compensation benefits reinstated.

Holland filed a Petition for Appeal

before the Supreme Court of Virginia

seeking a reversal of that Order so as to

"provide an avenue wherein a proper

proceeding may be had, in which a damage

Claim may be fully addressed," and

"determine whether... the principles of

tort law do not suggest that any claim

for additional benefits be allowed to

‘As explained at page 5 of Holland's

Complaint, this Motion was because of

Holland's "desire...to recover an award

of defendants in addition to his

suspended Worker's Compensation

benefits.”

proceed solely against the [Liberty

Mutual]... for those deprivations and

consequential injuries suffered through

the actions of the Industrial

Commission..." (p. 19 of Holland's

Petition for Appeal to Supreme Court of

Virginia, attached as an exhibit to

Complaint). Holland's Petition was

denied, leading to his allegations at p.

5 of the Complaint that the Court of

Appeals of Virginia denied him due

process in failing to advise him that he

Should file a Notice of Motion for

Judgment in order to pursue such a claim.

On or about February 1, 1991,

Holland filed his Complaint against

multiple defendants, including these

defendants, Liberty Mutual and Virginia

Bridge. Holland's Complaint is a

rambling document consisting almost

exclusively of conclusory legal

allegations blaming all defendants for

having disagreed with him over his

position throughout the handling of the

State law compensation matters referenced

by the Complaint. Holland complains, and

presumably seeks damages from the

defendants Liberty Mutual and its insured

Virginia Bridge, on account of (1)

Liberty Mutual's alleged breach of its

so-called "legal, moral and ethical duty

to contact [Holland] directly and obtain

a statement from him to allow for the

possibility of more easily resolving the

situation before taking legal action;"

(2) Liberty Mutual continuing to maintain

its position in the compensation

proceedings even after Holland advised

Liberty Mutual of his position; and (3)

Liberty Mutual attempting,

unsuccessfully, to appeal the Court of

Appeals' decision which reversed

decisions vindicating Liberty Mutual's

position. Holland's Complaint appears

also to allege that these same assertions

support a 1983 claim that these

defendants denied Holland's

constitutional rights, namely his right

to privacy, due process and equal

protection of the laws. Holland also

alleges that Liberty Mutual and Virginia

Bridge imposed cruel and unusual

punishment upon him. The Complaint was

dismissed by the District Court on May

16, 1991, following oral argument on

Motions to Dismiss filed by these

defendants pursuant to Federal Rules of

Civil Procedure 12(b)(1) and 12(b)(6).

Such dismissal was affirmed by the U.S.

Court of Appeals for the Fourth Circuit

on February 21, 1992.

On Appeal to the United States Court

of Appeals for the Fourth Circuit,

Holland's Complaint was amplified by his

Brief on Appeal. That Brief was even

more rambling than his Complaint, and is

difficult to follow. Holland seemed to

assert that his purpose was not to seek

additional damages beyond his Workers'

Compensation Award (p. 17, Informal Brief

“St Appellant, Fourth Circuit court of

Appeals, hereinafter "Brief"); then he

went to great lengths to explain why the

prior adverse rulings on his claim for

additional damages should not bar his

action (Brief, at pp. 19-21); and he

concluded by asking the Circuit Court to

rule summarily in his favor On appeal and

award him those, very same damages (Brief,

at p. 27). Reading between the lines, it

is possible that Holland was-~ also

alleging in his Brief in the Circuit

Court, for the first time, that Virginia

Code Section 65.1-88 is unconstitutional

10

on its face, which possible reading

Holland now repudiates, in part, in this

Petition. No matter how Holiand's

Petition in this Court is read, his

Complaint was still properly dismissed in

the District Court, and that dismissal

was properly affirmed on appeal. This

Petition for Writ of Certiorari follows

the denial of rehearing by the U.S. Court

of Appeals on March 20, 1992.

ll

SUMMARY OF THE ARGUMENT

The Petitioner fails to state within

his Petiticn for Writ of Certiorari any

"special and important" reason why this

Court should grant this Petition. The

decision of the District Court and its

affirmation by the Court of Appeals is

consistent with long established

precedent set down by this Honorable

Court and followed by other federal

Courts of Appeal concerning

interpretations and applications of the

Fourteenth Amendment in actions brought

under 42 U.S.C. Section 1983 and thus

there is no compelling reason for which

this Writ of Certiorari should be

granted.

Federal Courts are not forums for

resolution of complaints about workers'

compensation remedies. Essentially, the

Petitioner, an injured employee seeking

12

additional workers compensation benefits,

really seeks federal trial court

appellate review of decisions of the

State Appellate Courts which denied

Petitioner the additional relief which

Petitioner now seeks in this. action.

There is no jurisdiction in the federal

system for a district court to hear #uch

an appeal. i

Further, to the extent that the

Petitioner seeks relief under 42 U.S.C.

Section 1983, no valid Section 1983 claim

exists. The Complaint does not identify

a federally protected constitutional

right which may be fairly said to have

been deprived, and the Complaint alleges

no state action on the part of the

respondents Virginia Bridge and

Structures, Inc. and Liberty Mutual

Insurance Company (Petitioner's employer

and that employer's worker's compensation

13

insurer) except for their following

procedures which they were required to

follow under the Virginia Worker's

Compensation Act (hereinafter, "Act").

Indeed, the Act's procedures were

followed to the letter and the Act, as

written and enforced, is unquestionably

free of constitutional infirmity.

14

ee

ARGUMENT

- The Petitioner fails to state

any “special and important" reason why

this Court should grant this Petition;

the decision of the Fourth Circuit Court

of Appeals is not even arquably in

conflict with other applicable

authorities.

Holland's Petition for Writ of

Certiorari fails to state any "special

and important" reason why this Court

Should grant this Petition and merely

reasserts his substantive argument

previously presented and rejected in the

U.S. District Court and Court of Appeals.

"A review on writ of certiorari is not a

matter of right, but of judicial

discretion and will be granted only when

there are special and important reasons

therefore." Rule 10 of the Rules of the

Supreme Court of the United States.

15

Supreme Court Rule 10 further sets out

the "character" of reasons which are

"special and important" for the purposes

of granting a writ of certiorari. The

Petition for Writ of Certiorari now

before this Court makes no substantiated

Claim that such "special and important"

reason exists and accordingly, the

Petition for Writ of Certiorari must be

denied.

Holland contends that the U.S

District Court's decision and affirmance

by the U.S. Court of Appeals for the

Fourth Circuit is in error and in

conflict with “applicable decisions" of

this court, the Fourteenth Amendment, and

the intent of 42 U.S.C.A. Section 1983;

however, Holland points to no authority

in support of his assertion. Holland

merely cites the language of the

Constitution, specifically the Fourteenth

16

Amendment, and selective segments of

various annotations and case law.

Holland does not address the factual

context in which the authority he cites

has been applied nor does he demonstrate

how the decision below, on the facts of

this case, is in conflict with that

authority. On the contrary, the decision

of the District Court and its affirmation

by the Court of Appeals is consistent

with long established precedent set down

by this Honorable Court and followed by

other Federal Courts of Appeal concerning

interpretations and applications of the

Fourteenth Amendment and actions brought

under 42 U.S.C.A. Section 1983 and thus

there is no compelling reason for nen

this Writ of Certiorari should be

* granted.

as The Federal Courts do not have

jurisdiction to hear Petitioner's claim

17

for compensatory damages arising out of a

work-related injury, where Petitioner

sought and was awarded, by Virginia state

courts, certain recovery under Virginia's

Workers' Compensation Act, but was there

denied the additional compensation he now

seeks from the Federal Courts.

Holland has sought and received

compensation benefits under Virginia law,

pursuant to the provisions of the

Virginia Workers ' Compensation Act

(hereinafter "the Act"). See Virginia

Code Section 65.1-1 et seq. Pursuant to

Virginia Code Section 65.1-40, the rights

and remedies granted to an employee

against his employer (and thus his

employer's insurer) under the Act "Shall

exclude all other rights and remedies of

such employee...at common law or

otherwise, on account of such injury,

loss of service or death." Accordingly,

18

jurisdiction over such claims is vested

solely in the Industrial Commission of

Virginia. Perrin v. Brunswick COre., 330

F.Supp. 221 (W.D. Va. 1971). Even suits

by an employee for intentional torts are

precluded under the Act. Haddon v.

Metropolitan Life Insurance Company, et

al, 239 Va. 397, 389 S.E.2d 712 (1990);

Joyce v. A. C. & S., Inc., 785 F.2d 1200

(4th Cir. 1986).

Indeed, this claim is very unusual

because the Petitioner has not only

availed himself of his compensation

remedy but has prevailed. See decision

of the Court of Appeals in Holland v.

Virginia Bridge and Structures, Inc. and

Liberty Mutual Insurance Company, 10 Va.

App. 660, 394 S.E.2d 867 (1990), attached

as exhibit to Complaint. ~° While

Petitioner has failed in his attempt to

assert additional damages, that is

because Virginia's statutory scheme does

not permit such additional damages to be

awarded in workers' compensation cases.

Also, by statute in Virginia, the

employer (and thus its insurer) was

required in this case to pay interest

(and penalty) as a resuit of the reversal

of the decisions which had _ earlier

approved su pending compensation. See

Virginia Code Sections 65.1-98.1 (10%

interest) and 65.1-75.1 (20% penalty).

Federal Courts are not forums for

resolution of complaints about workers'

compensation remedies. A Federal

District Court has neither the

jurisdiction nor the expertise to handle

such claims. Essentially, the Petitioner

really seeks federal trial court

appellate review of decisions of the

State Appellate Courts which denied

Petitioner the additional relief which

Petitioner now seeks in this action.

There is no jurisdiction in the federal

System for a district court to hear such

an appeal.

3s The Petitioner's Complaint

against these respondents fails to state

a claim upon which relief may be granted

under 42 U.S.C. Section 1983, where the

Complaint fails to identify

constitutional rights which have been

deprived and fails to allege state action

by these respondents.

It is well established that in order

for the plaintiff to state a claim under

Section 1983, he must allege the

violation of a right secured by the

Constitution and laws of the United

States, and must show that the alleged

deprivation was committed by a person

acting under color of state law. West v.

Atkins, 487 U.S. 42,48 (1988) citing

21

Parratt v. Taylor, 451 U.S. 527,- 535

(1981) (overruled in part on other

grounds); Daniels v. Williams, 474 U.S.

327, 330-331 (1986)); Flagg Bros., Inc.

v. Brooks, 436 U.S. 149, 155 (1978).

To the extent that Petitioner sought

relief under 42 U.S.C. Section 1983, the

U.S. District Court and Court of Appeals

properly determined that no valid Section

1983 claim existed. The Complaint does

not identify a federally protected

constitutional right which may be fairly

said to have been deprived, and the

Complaint alleges no State action on the

part of the respondents Virginia Bridge

and Structures, Inc. and Liberty Mutual

Insurance Company except for’ their

participation in procedures which they

were required to follow under the

Virginia Workers ' Compensation Act

(hereinafter, "Act").

Holland's Complaint fails to allege

facts which Support a claim of

deprivation of a federally protected

right or even his own allegations of

Supposedly wrongful conduct on the part

of these respondents. I n h i s

Complaint, Holland makes only a bare

allegation that these respondents

breached largely unspecified or vaguely

outlined duties which, Holland alleges,

resulted in deprivation of his rights to

privacy, due process, and equal

protection of the laws. While Petitioner

asserts that these respondents breached

"legal, moral or contractual duties

owed...," the Complaint fails to allege

any facts to show the existence of the

duties he alleges (really assumes) exist

or that breaches thereof resulted in the

violation of any of the constitutional

rights which he lists. Essentially,

Petitioner objects to, and labels as

breach of duty, respondents taking the

position they did under the Act and

requiring the Petitioner to assert and

prove his Own position. At all

Industrial Commission hearing levels,

these respondents' position was affirmed,

and although ultimately their position

was rejected, it is not a basis for suit

that a litigant's position was ultimately

rejected, after earlier being accepted.

While the Petitioner alleges the

violation of his constitutional rights,

principally the rights to privacy, equal

protection and due process, he, by his

own submissions, prove that he was

accorded full due process and equal

protection and, in fact prevailed in

obtaining his compensation award. He

makes no allegations as to the basis for

his denial of equal protection. He does

24

not claim any improper classification on

race, sex, age, or any other basis which

would be considered improper. He makes

no attempt to show how any right to

privacy was violated and the facts of his

claim, as pled, leave no way by which any

reasonable person could imply a

deprivation of his right to privacy by

these respondents. Holland repeatedly

complains that he was denied his right to

reject medical treatment, but indeed he

rejected such treatment and his choice,

and right, were vindicated. The fact

that petitioner did not prevail on claims

for additional damages in no way

indicates that he was’ denied equal

protection and due process. At best such

allegations do not support any claim of

constitutional deprivation.

The United States Supreme Court in

Rendell-Baker v. Kohn stated that "(t]he

25

Fourteenth Amendment, which prohibits the

State from denying Federal constitutional

rights and which guarantees due process,

applies to acts of States, not acts of

private persons or entities. And Section

1983, which was enacted pursuant to the

authority of Congress to enforce the

Fourteenth Amendment, prohibits

interference with Federal rights under

color of state law." 457 U.S. 830, 837,

102 S.Ct. 2764, 73 L.Ed.2d 418 (1982).

Thus plaintiff must show not only that

the conduct complained of deprived him of

a constitutionally protected right but

‘also that the conduct allegedly causing

the deprivation was fairly attributable

to the State. See Lugar v. Edmondson Oil

Co., 459 U.S. 922, 102 S.Ct. 2744, 73

L.Ed.2d 482 (1982). Petitioner's

Complaint fails to allege any facts to

establish state action on the part of

26

Respondents and therefore no Section 1983

Claim can be made. It is well

established that the requirement of

Showing attribution to the State is not

Satisfied when a private party merely

resorts to the use of State legal

procedures. see Lugar, supra, at 497;

Dahlberg v. Becker, 748 F.2d 85 (2d

Cir.), cert denied, 470 U.S. 1084 (1984).

This is so even where, as in Lugar, the

State statute itself is unconstitutional.

"Private mis-use of a State statute does

not describe conduct that can be

attributed to the State." Lugar, supra,

at 497, n.21. See also, Dahlberg, supra,

at 90. The Supreme Court in Lugar

dismissed Count II of Lugar's Complaint,

which asserted that Lugar's deprivation

of property resulted “from malicious,

wanton, willful, oppressive and unlawful

acts, on the grounds that mis-use of

27

State statute does not describe conduct

that can be attributed to the State. By

contrast, it is submitted that’ the

Complaint here does not, fairly read,

even allege these respondents' actual

misuse of a State statute, but rather

that these respondents (and for that

matter all Industrial Commission parties)

disagreed with Petitioner (and the

Virginia Court of Appeals) as to the

application of State statutes to the

peculiar facts of this claim.

Holland's Complaint, as "amplified"

by his Brief in the Fourth Circuit Court

of Appeals, can be said to challenge the

constitutionally of Virginia Code Section

65.1-88. In his Petition in this Court,

Holland concedes now that Virginia's

statutory scheme is not unconstitutional

on its face, but only as_ enforced

(Petition, p. 28). Surely no

28

constitutional offense is done by a

statute which denies continued

compensation benefits to one who

unjustifiably refuses medical treatment.

To the extent that Holland protests the

procedure for enforcing the statute, the

procedure has .lready successfully

withstood constitutional attack. A three

judge panel of the United States District

Court for the Eastern District of

Virginia dismissed such a challenge in

Dillard and Williams, etc. v. Industrial

Commission of Virginia, et al, 347 F.Supp

71 (1972) vacated and remanded 416 U.S.

783, 94 S.Ct. 2028, 40 L.Ed.2d 540

(1974). It is true that this Court

vacated and remanded that decision but

only so that there could be a

reconsideration of certain state law

issues which would make a decision on

constitutional issues unnecessary. One

such remanded issue was whether or not,

as plaintiffs had alleged and the three-

judge court had assumed, the initial

determination of whether a hearing could

be held and thus benefits suspended was

an ex parte decision. As Holland's own

submission to the Courts below

demonstrates, the probable cause

determination (at least now) is made in

Virginia on consideration of evidence

from both employee and employer/insured

and is not an ex parte determination.

(See Attachment 2, pp. 32 and 41, a

portion of which explains the procedure

and pp. 33-36 and p. 42, reflecting

Holland's participation in the

preliminary determination which is

promptly thereafter reviewed at a

hearing.) There simply is no longer even

an arguable constitutional defect in

Virginia's Worker's Compensation system,

as written or enforced.

CONCLUSION

For the foregoing reasons and

authorities, it is respectfully submitted

that the decision of the U.S. District

Court and its affirmance by the U.S.

Court of Appeals for the Fourth Circuit

is undeniably in accord with The United

States Constitution and previous opinions

rendered by this Court and that this

Court should deny the Petition for Writ

of Certiorari.

VIRGINIA BRIDGE AND

STRUCTURES, INC. and

LIBERTY MUTUAL INSUR-

a, COMPANY

Lf fie’

Of Counsel’

Alan B. Rashkind, Esquire

FURNISS, DAVIS, RASHKIND & SAUNDERS, P.C.

Post Office Box 12525

Norfolk, VA 23502

(804) 461-7100

31

CERTIFICATE OF SERVICE

I hereby certify that threecopies of

the foregoing Brief in Opposition to

Petition for Writ of Certiorari was

mailed to Mr. Kenneth Edward Holland,

1213 Olive Road, Virginia Beach, Virginia

23464; Teresa D. Creef, Esquire,

Assistant Attorney General, Office of the

Attorney General, Supreme Court Building,

101 North Eighth’ Street, Richmond,

Virginia 23219; and Robert W. Hardy,

Esquire, Knight, Dudley, Dezern & Clarke,

Post Office Box 13109, Norfolk, Virginia

23509-3109, on this 24th day of July,

a, sr

1992.

32