ANALYSIS OF DECEMBER 21, 2010 CAV OPINIONS[Posted December 21, 2010] Today must have been quite a day to be on the Salisbury plain in southwestern England; I can only imagine what the druids must have thought about a lunar eclipse occurring on the winter solstice. But the judges of the Court of Appeals of Virginia were unmoved by the synchronicity; they issued two published opinions today, just as though it were a normal Tuesday.
An unusual problem crops up today in the context of a Speedy Trial Act issue; the case is Brown v. Commonwealth. It’s a complex fact pattern involving a defendant who was accused of murdering his father. Shortly before trial, he gave notice of an insanity defense, and upon evaluation, he was deemed incompetent to stand trial. The trial court ordered him to be treated for his condition (schizophrenia) and continued the proceedings.
On Halloween (a holiday that may or may not mean anything to druids) 2008, a psychologist prepared and mailed a letter certifying that Brown was now competent to stand trial. Unfortunately, she mailed it to the wrong court (GDC instead of circuit), where it languished for several months. The doctor issued a follow-up note in April 2009, basically asking, “What’s wrong with my report?” That got matters going again in the trial court, resulting in a July 2009 trial and an eventual conviction.
The issue here is whether the issuance of the report in October 2008 was sufficient to start the clock running again. (It’s tolled during the period in which a defendant is found to be incompetent.) Under the language of the statute, after the mental-health professional makes her findings and files them, “the court shall promptly determine whether the defendant is competent to stand trial.” The CAV today finds that the mere issuance of the mental-health report isn’t enough to restart the 5-month clock for Speedy-Trial purposes. That’s because only the court can make that finding; the letter is just evidence from which the court can make its own findings.
So far, so good. But what about the obligation for the court to “promptly determine” whether the defendant is competent? This one is a tougher call, but the CAV again rules that the prosecution was timely, since the duty to act promptly comes after the trial court receives the report. This trial court didn’t receive the report for several months because of the mistaken address, so the panel finds that “under the unique circumstances of this case” (that means don’t go jumping to cite this as precedent unless your case is truly parallel), it wasn’t possible for the circuit court to act sooner.
When an injured employee is able to return to work, normally any previous award of temporary total disability ceases. If the employee returns to full duty and full pay, then the award simply ends; if the employee can only perform limited duty for less pay, then she gets a replacement award of temporary partial benefits.
The latter situation is what happened in CVS of Virginia v. Plunkett. After sitting out her pharmacy-services-associate position for over a year due to injuries to her arms, the employee’s doctor cleared her for light duty. The pharmacy offered her substitute work that met with her limitations, but she also threw in a couple of other factors: She didn’t want to drive after dark, and she had to pick up her grandchild from school at 4:00. The parties eventually agreed to a work schedule from 10 am to 3 pm, three days a week.
Fifteen hours a week isn’t nearly what the employee was evidently performing before her injury, so she sought and got an award of temporary partial benefits to make up the difference. The employer appealed, claiming that she had a duty to market her residual capacity beyond the limited work she was doing at the pharmacy. The employee responded that, having accepted the only employment that her employer had offered to her, she had no further duty to market herself.
Today, a CAV panel sides with the employer. It cites a 2008 Supreme Court opinion that holds that the employee in a situation like this does indeed have to try in good faith to find substitute work, and this employee never made any such showing; she simply relied on a couple of CAV opinions to support her position (summarized above). The trouble with that approach, the unanimous panel points out today, is that those cases predated the 2008 ruling that effectively overruled them.