causation presumption in Virginia

2015This interpretation is consistent with this Court’s previous holding that the phrase “arising out of’ implicates a causation requirement and has been construed as referring to the “origin or cause of the injury.” Cooper, 44 Va.App. at 278 , 604 S.E.2d at 752 (citing Bradshaw v. Aronovitch, 170 Va. 329, 335 , 196 S.E. 684, 686 (1938)).

2015This interpretation is consistent with this Court’s previous holding that the phrase “arising out of’ implicates a causation requirement and has been construed as referring to the “origin or cause of the injury.” Cooper, 44 Va.App. at 278 , 604 S.E.2d at 752 (citing Bradshaw v. Aronovitch, 170 Va. 329, 335 , 196 S.E. 684, 686 (1938)).

2022Our Supreme Court has held that this causation requirement limits restitution to those damages or losses that were “directly caused by the offense.” Howell v. Commonwealth, 274 Va. 737, 741 (2007) (quoting United States v. McMichael, 699 F.2d 193, 195 (4th Cir. 1983)).

2011Howell, 274 Va. at 740-41 , 652 S.E.2d at 108-09 .

1998Thus, the direct reference to the "preponderance" standard in Code § 65.2-402(B) clearly indicates the General Assembly intended for the causation presumption to shift the burden of persuasion to the employer. [27] See Overbey, 254 Va. at 526-27 , 492 S.E.2d at 634 (all of the credible evidence in record indicated that the cause of the claimant's ailment was non-work-related); Doss v. Fairfax County Fire and Rescue Dep't, 229 Va. 440, 442-43 , 331 S.E.2d 795, 796-97 (1985) (same); Cook v. City of Waynesboro Police Dep't, 225 Va. 23, 30 , 300 S.E.2d 746, 749 (1983) (same); Bass, 26 Va.App. at 1

1997SUFFICIENCY OF EMPLOYER’S REBUTTAL EVIDENCE In a recent decision, the Supreme Court reaffirmed the standard for an employer seeking to rebut a law enforcement officer’s use of the causation presumption. “[I]n order to overcome the statutory presumption, the employer merely ‘must adduce competent medical evidence of a non-work-related cause of the disabling disease.’” Augusta County Sheriffs Dep’t v. Overbey, — Va.-, 492 S.E.2d 631 (1997) (citing Doss v. Fairfax County Fire & Rescue Dep’t. 229 Va. 440, 442 , 331 S.E.2d 795 , 796 (1985)).

1998Thus, the direct reference to the "preponderance" standard in Code § 65.2-402(B) clearly indicates the General Assembly intended for the causation presumption to shift the burden of persuasion to the employer. [27] See Overbey, 254 Va. at 526-27 , 492 S.E.2d at 634 (all of the credible evidence in record indicated that the cause of the claimant's ailment was non-work-related); Doss v. Fairfax County Fire and Rescue Dep't, 229 Va. 440, 442-43 , 331 S.E.2d 795, 796-97 (1985) (same); Cook v. City of Waynesboro Police Dep't, 225 Va. 23, 30 , 300 S.E.2d 746, 749 (1983) (same); Bass, 26 Va.App. at 1

1998Thus, the direct reference to the "preponderance" standard in Code § 65.2-402(B) clearly indicates the General Assembly intended for the causation presumption to shift the burden of persuasion to the employer. [27] See Overbey, 254 Va. at 526-27 , 492 S.E.2d at 634 (all of the credible evidence in record indicated that the cause of the claimant's ailment was non-work-related); Doss v. Fairfax County Fire and Rescue Dep't, 229 Va. 440, 442-43 , 331 S.E.2d 795, 796-97 (1985) (same); Cook v. City of Waynesboro Police Dep't, 225 Va. 23, 30 , 300 S.E.2d 746, 749 (1983) (same); Bass, 26 Va.App. at 1

2024See Sinclair, 1 Virginia Remedies, supra, § 29-3[A]; see also Saks Fifth Ave., Inc., 272 Va. at 190 (Plaintiffs must “show the necessary factor of proximate causation.”).

2022Our Supreme Court has held that this causation requirement limits restitution to those damages or losses that were “directly caused by the offense.” Howell v. Commonwealth, 274 Va. 737, 741 (2007) (quoting United States v. McMichael, 699 F.2d 193, 195 (4th Cir. 1983)).

2022“Costs that result only indirectly from the offense, that are a step removed from the defendant’s conduct, are too remote and are inappropriate for a restitution payment.” Id.

2022“The proximate cause of an event is that act or omission which, in natural and continuous sequence, unbroken by an efficient intervening cause, produces that event, and without which that event would not have occurred.” Id. (quoting Wells v. Whitaker, 207 Va. 616, 622 (1966)).

2008Hardey has repeatedly waived appellate review of this issue: first by failing to raise the question at trial, see Rule 5A:18; then by making the opposite assertion to the trial court, see Rahnema v. Rahnema, 47 Va. App. 645, 663 , 626 S.E.2d 448, 457 (2006) (“Having taken this position with the trial judge, [appellant] cannot take an opposite position with us on appeal.”); again by not specifically addressing it to us in any question presented, see Klein v. Klein, 49 Va. App. 478, 481 , 642 S.E.2d 313, 315 (2007) (“Husband’s argument as to the incorrect standard was not included in husband’s q

2008Hardey has repeatedly waived appellate review of this issue: first by failing to raise the question at trial, see Rule 5A:18; then by making the opposite assertion to the trial court, see Rahnema v. Rahnema, 47 Va. App. 645, 663 , 626 S.E.2d 448, 457 (2006) (“Having taken this position with the trial judge, [appellant] cannot take an opposite position with us on appeal.”); again by not specifically addressing it to us in any question presented, see Klein v. Klein, 49 Va. App. 478, 481 , 642 S.E.2d 313, 315 (2007) (“Husband’s argument as to the incorrect standard was not included in husband’s q

2008Hardey has repeatedly waived appellate review of this issue: first by failing to raise the question at trial, see Rule 5A:18; then by making the opposite assertion to the trial court, see Rahnema v. Rahnema, 47 Va. App. 645, 663 , 626 S.E.2d 448, 457 (2006) (“Having taken this position with the trial judge, [appellant] cannot take an opposite position with us on appeal.”); again by not specifically addressing it to us in any question presented, see Klein v. Klein, 49 Va. App. 478, 481 , 642 S.E.2d 313, 315 (2007) (“Husband’s argument as to the incorrect standard was not included in husband’s q

2008Hardey has repeatedly waived appellate review of this issue: first by failing to raise the question at trial, see Rule 5A:18; then by making the opposite assertion to the trial court, see Rahnema v. Rahnema, 47 Va. App. 645, 663 , 626 S.E.2d 448, 457 (2006) (“Having taken this position with the trial judge, [appellant] cannot take an opposite position with us on appeal.”); again by not specifically addressing it to us in any question presented, see Klein v. Klein, 49 Va. App. 478, 481 , 642 S.E.2d 313, 315 (2007) (“Husband’s argument as to the incorrect standard was not included in husband’s q

2001The General Assembly adopted broad, inclusive language: “all other rights and remedies ... arising out of or related to a medical malpractice claim — ” The phrase “arising out of’ implicates a causation requirement and has been construed as referring to the “origin or cause of the injury.” Bradshaw v. Aronovitch, 170 Va. 329, 335 , 196 S.E.2d 684, 686 (1938).

1998Thus, the direct reference to the "preponderance" standard in Code § 65.2-402(B) clearly indicates the General Assembly intended for the causation presumption to shift the burden of persuasion to the employer. [27] See Overbey, 254 Va. at 526-27 , 492 S.E.2d at 634 (all of the credible evidence in record indicated that the cause of the claimant's ailment was non-work-related); Doss v. Fairfax County Fire and Rescue Dep't, 229 Va. 440, 442-43 , 331 S.E.2d 795, 796-97 (1985) (same); Cook v. City of Waynesboro Police Dep't, 225 Va. 23, 30 , 300 S.E.2d 746, 749 (1983) (same); Bass, 26 Va.App. at 1

1998Thus, the direct reference to the "preponderance" standard in Code § 65.2-402(B) clearly indicates the General Assembly intended for the causation presumption to shift the burden of persuasion to the employer. [27] See Overbey, 254 Va. at 526-27 , 492 S.E.2d at 634 (all of the credible evidence in record indicated that the cause of the claimant's ailment was non-work-related); Doss v. Fairfax County Fire and Rescue Dep't, 229 Va. 440, 442-43 , 331 S.E.2d 795, 796-97 (1985) (same); Cook v. City of Waynesboro Police Dep't, 225 Va. 23, 30 , 300 S.E.2d 746, 749 (1983) (same); Bass, 26 Va.App. at 1

1998Thus, the direct reference to the "preponderance" standard in Code § 65.2-402(B) clearly indicates the General Assembly intended for the causation presumption to shift the burden of persuasion to the employer. [27] See Overbey, 254 Va. at 526-27 , 492 S.E.2d at 634 (all of the credible evidence in record indicated that the cause of the claimant's ailment was non-work-related); Doss v. Fairfax County Fire and Rescue Dep't, 229 Va. 440, 442-43 , 331 S.E.2d 795, 796-97 (1985) (same); Cook v. City of Waynesboro Police Dep't, 225 Va. 23, 30 , 300 S.E.2d 746, 749 (1983) (same); Bass, 26 Va.App. at 1

1998Thus, the direct reference to the "preponderance" standard in Code § 65.2-402(B) clearly indicates the General Assembly intended for the causation presumption to shift the burden of persuasion to the employer. [27] See Overbey, 254 Va. at 526-27 , 492 S.E.2d at 634 (all of the credible evidence in record indicated that the cause of the claimant's ailment was non-work-related); Doss v. Fairfax County Fire and Rescue Dep't, 229 Va. 440, 442-43 , 331 S.E.2d 795, 796-97 (1985) (same); Cook v. City of Waynesboro Police Dep't, 225 Va. 23, 30 , 300 S.E.2d 746, 749 (1983) (same); Bass, 26 Va.App. at 1

1998See Cunningham v. City of Manchester Fire Dep’t, 129 N.H. 232 , 525 A.2d 714, 717-18 (1987) (considering the Thayer and Morgan theories and concluding that the legislature intended the causation presumption to shift both the burdens of production and persuasion to the employer); Montgomery County Fire Bd. v. Fisher, 298 Md. 245 , 468 A.2d 625, 630-31 (1983) (same); Wright v. State Accident Ins.

1998See Cunningham v. City of Manchester Fire Dep’t, 129 N.H. 232 , 525 A.2d 714, 717-18 (1987) (considering the Thayer and Morgan theories and concluding that the legislature intended the causation presumption to shift both the burdens of production and persuasion to the employer); Montgomery County Fire Bd. v. Fisher, 298 Md. 245 , 468 A.2d 625, 630-31 (1983) (same); Wright v. State Accident Ins.

1998Fund, 289 Or. 323 , 613 P.2d 755, 759-61 (1980) (considering the Thayer and Morgan theories and concluding that the causation presumption does not disappear with the introduction of opposing evidence by the employer).

1998Fund, 289 Or. 323 , 613 P.2d 755, 759-61 (1980) (considering the Thayer and Morgan theories and concluding that the causation presumption does not disappear with the introduction of opposing evidence by the employer).

1998See City of Norfolk v. Lillard, 15 Va.App. 424, 430 , 424 S.E.2d 243, 246 (1992) (citing Ingersoll-Rand Co. v. Musick, 7 Va.App. 684, 688 , 376 S.E.2d 814, 817 (1989)).

1998See City of Norfolk v. Lillard, 15 Va.App. 424, 430 , 424 S.E.2d 243, 246 (1992) (citing Ingersoll-Rand Co. v. Musick, 7 Va.App. 684, 688 , 376 S.E.2d 814, 817 (1989)).

1998See Cunningham v. City of Manchester Fire Dep’t, 129 N.H. 232 , 525 A.2d 714, 717-18 (1987) (considering the Thayer and Morgan theories and concluding that the legislature intended the causation presumption to shift both the burdens of production and persuasion to the employer); Montgomery County Fire Bd. v. Fisher, 298 Md. 245 , 468 A.2d 625, 630-31 (1983) (same); Wright v. State Accident Ins.

1998See Cunningham v. City of Manchester Fire Dep’t, 129 N.H. 232 , 525 A.2d 714, 717-18 (1987) (considering the Thayer and Morgan theories and concluding that the legislature intended the causation presumption to shift both the burdens of production and persuasion to the employer); Montgomery County Fire Bd. v. Fisher, 298 Md. 245 , 468 A.2d 625, 630-31 (1983) (same); Wright v. State Accident Ins.

1998See City of Norfolk v. Lillard, 15 Va.App. 424, 430 , 424 S.E.2d 243, 246 (1992) (citing Ingersoll-Rand Co. v. Musick, 7 Va.App. 684, 688 , 376 S.E.2d 814, 817 (1989)).

1998See City of Norfolk v. Lillard, 15 Va.App. 424, 430 , 424 S.E.2d 243, 246 (1992) (citing Ingersoll-Rand Co. v. Musick, 7 Va.App. 684, 688 , 376 S.E.2d 814, 817 (1989)).

1998Thus, the direct reference to the "preponderance" standard in Code § 65.2-402(B) clearly indicates the General Assembly intended for the causation presumption to shift the burden of persuasion to the employer. [27] See Overbey, 254 Va. at 526-27 , 492 S.E.2d at 634 (all of the credible evidence in record indicated that the cause of the claimant's ailment was non-work-related); Doss v. Fairfax County Fire and Rescue Dep't, 229 Va. 440, 442-43 , 331 S.E.2d 795, 796-97 (1985) (same); Cook v. City of Waynesboro Police Dep't, 225 Va. 23, 30 , 300 S.E.2d 746, 749 (1983) (same); Bass, 26 Va.App. at 1

1998Thus, the direct reference to the "preponderance" standard in Code § 65.2-402(B) clearly indicates the General Assembly intended for the causation presumption to shift the burden of persuasion to the employer. [27] See Overbey, 254 Va. at 526-27 , 492 S.E.2d at 634 (all of the credible evidence in record indicated that the cause of the claimant's ailment was non-work-related); Doss v. Fairfax County Fire and Rescue Dep't, 229 Va. 440, 442-43 , 331 S.E.2d 795, 796-97 (1985) (same); Cook v. City of Waynesboro Police Dep't, 225 Va. 23, 30 , 300 S.E.2d 746, 749 (1983) (same); Bass, 26 Va.App. at 1

1998Thus, the direct reference to the "preponderance" standard in Code § 65.2-402(B) clearly indicates the General Assembly intended for the causation presumption to shift the burden of persuasion to the employer. [27] See Overbey, 254 Va. at 526-27 , 492 S.E.2d at 634 (all of the credible evidence in record indicated that the cause of the claimant's ailment was non-work-related); Doss v. Fairfax County Fire and Rescue Dep't, 229 Va. 440, 442-43 , 331 S.E.2d 795, 796-97 (1985) (same); Cook v. City of Waynesboro Police Dep't, 225 Va. 23, 30 , 300 S.E.2d 746, 749 (1983) (same); Bass, 26 Va.App. at 1

1998Thus, the direct reference to the "preponderance" standard in Code § 65.2-402(B) clearly indicates the General Assembly intended for the causation presumption to shift the burden of persuasion to the employer. [27] See Overbey, 254 Va. at 526-27 , 492 S.E.2d at 634 (all of the credible evidence in record indicated that the cause of the claimant's ailment was non-work-related); Doss v. Fairfax County Fire and Rescue Dep't, 229 Va. 440, 442-43 , 331 S.E.2d 795, 796-97 (1985) (same); Cook v. City of Waynesboro Police Dep't, 225 Va. 23, 30 , 300 S.E.2d 746, 749 (1983) (same); Bass, 26 Va.App. at 1

1998Because the Virginia Supreme Court stated in Fairfax County Fire and Rescue Services v. Newman, 222 Va. 535 , 281 S.E.2d 897 (1981), that the causation presumptions now codified at Code § 65.2-402 cast “the ultimate risk of nonpersuasion” upon the employer, 222 Va. at 541 , 281 S.E.2d at 901 , and this statement was not expressly addressed by the Supreme Court in Overbey , we conclude that the causation presumption continues to have the effect of shifting to the employer both the burden of production and the burden of persuasion on the issue of causation.

1998Because the Virginia Supreme Court stated in Fairfax County Fire and Rescue Services v. Newman, 222 Va. 535 , 281 S.E.2d 897 (1981), that the causation presumptions now codified at Code § 65.2-402 cast “the ultimate risk of nonpersuasion” upon the employer, 222 Va. at 541 , 281 S.E.2d at 901 , and this statement was not expressly addressed by the Supreme Court in Overbey , we conclude that the causation presumption continues to have the effect of shifting to the employer both the burden of production and the burden of persuasion on the issue of causation.

1998Thus, the direct reference to the "preponderance" standard in Code § 65.2-402(B) clearly indicates the General Assembly intended for the causation presumption to shift the burden of persuasion to the employer. [27] See Overbey, 254 Va. at 526-27 , 492 S.E.2d at 634 (all of the credible evidence in record indicated that the cause of the claimant's ailment was non-work-related); Doss v. Fairfax County Fire and Rescue Dep't, 229 Va. 440, 442-43 , 331 S.E.2d 795, 796-97 (1985) (same); Cook v. City of Waynesboro Police Dep't, 225 Va. 23, 30 , 300 S.E.2d 746, 749 (1983) (same); Bass, 26 Va.App. at 1

1998Thus, the direct reference to the "preponderance" standard in Code § 65.2-402(B) clearly indicates the General Assembly intended for the causation presumption to shift the burden of persuasion to the employer. [27] See Overbey, 254 Va. at 526-27 , 492 S.E.2d at 634 (all of the credible evidence in record indicated that the cause of the claimant's ailment was non-work-related); Doss v. Fairfax County Fire and Rescue Dep't, 229 Va. 440, 442-43 , 331 S.E.2d 795, 796-97 (1985) (same); Cook v. City of Waynesboro Police Dep't, 225 Va. 23, 30 , 300 S.E.2d 746, 749 (1983) (same); Bass, 26 Va.App. at 1

1998As the Supreme Court has oft repeated, “ ‘[i]n Virginia, the doctrine of stare decisis is more than a mere cliche.’ ” Nunnally v. Artis, 254 Va. 247, 252-53 , 492 S.E.2d 126, 128-29 (1997) (quoting Selected Risks Ins.

1998As the Supreme Court has oft repeated, “ ‘[i]n Virginia, the doctrine of stare decisis is more than a mere cliche.’ ” Nunnally v. Artis, 254 Va. 247, 252-53 , 492 S.E.2d 126, 128-29 (1997) (quoting Selected Risks Ins.

1998Instead, the causation presumption shifts the evidentiary burden from the claimant to the employer to “overcome [the presumption] by a preponderance of competent evidence to the contrary.” Code § 65.2-402(13); see Commonwealth, Dep’t of State Police v. Hines, 221 Va. 626, 629-30 , 272 S.E.2d 210, 213 (1980) (citing Page v. City of Richmond, 218 Va. 844, 847 , 241 S.E.2d 775, 777 (1978)).

1998Instead, the causation presumption shifts the evidentiary burden from the claimant to the employer to “overcome [the presumption] by a preponderance of competent evidence to the contrary.” Code § 65.2-402(13); see Commonwealth, Dep’t of State Police v. Hines, 221 Va. 626, 629-30 , 272 S.E.2d 210, 213 (1980) (citing Page v. City of Richmond, 218 Va. 844, 847 , 241 S.E.2d 775, 777 (1978)).

1998Instead, the causation presumption shifts the evidentiary burden from the claimant to the employer to “overcome [the presumption] by a preponderance of competent evidence to the contrary.” Code § 65.2-402(13); see Commonwealth, Dep’t of State Police v. Hines, 221 Va. 626, 629-30 , 272 S.E.2d 210, 213 (1980) (citing Page v. City of Richmond, 218 Va. 844, 847 , 241 S.E.2d 775, 777 (1978)).

1998Instead, the causation presumption shifts the evidentiary burden from the claimant to the employer to “overcome [the presumption] by a preponderance of competent evidence to the contrary.” Code § 65.2-402(13); see Commonwealth, Dep’t of State Police v. Hines, 221 Va. 626, 629-30 , 272 S.E.2d 210, 213 (1980) (citing Page v. City of Richmond, 218 Va. 844, 847 , 241 S.E.2d 775, 777 (1978)).