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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

Still cathcing up, here are the summaries of the last January Court of Appeals Opinions.

Joshua Stanton v. Virginia Beach - Fire Operations (January 30, 2024) Stanton injured his hip while performing his job as a paramedic and was awarded Workers' Compensation benefits in 2014. He was able to return to duty in 2015, but require hip replacement in 2021. He returned to full duty a few months after the hip replacement, but prior to that time was given light duty. Stanton applied for an additional award of compensation alleging that the hip replacement was due to the injury and constituted a change of condition. The Commission ruled that his claim was time barred by Code § 65.2-708 and the Court of Appeals, Judge Athey, Joined by Judges Humphreys and Huff, affirmed.


Code § 65.2-708 provides that claims for a change in condition from a compensation award must be filed within two years from the last date compensation was paid under a claim. For purposes of determining when compensation was paid, payment for light duty at a full wage is considered compensation.


Stanton contended that because he had been put on light duty after his surgery, this constituted compensation for his prior injury and restarted the limitations period. The problem is that Stanton's interpretation of the statute would allow the limitations period to renew any time an employee was moved back to a light duty position after the original limitations period had expired. The Court noted that in a prior Supreme Court case, Ford Motor Co. v. Gordon, 281 Va. 543 (2011), applying the statute, the employee was returned to light duty within the original limitation period. The Court reasoned that once the initial two-ear period has run, it cannot be revived by a subsequent payment of full pay for light duty work. The Court says in a footnote that made no argument that the surgery he underwent in 2021 was a compensable procedure, so the Court did not address an exception to the two-year limitation period for surgery to "repair or replace a prosthesis or orthosis."


One final point. The limitations period in Code § 65.2-708 is referred to in Gordon and in this case a a "statute of limitations." I would contend that it is actually at "statute of repose." The distinction between the two is not really significant, but statutes of repose typicallt set a time period following which an action or claim cannot be revived, while statutes of limitation typically limit the time before an action can be brought.


Joana Konadu v. Commonwealth of Virginia, January 30, 2024, is an appeal from a conviction for reckless driving, a misdemeanor. The facts, as related by the Court, are pretty frightening and pretty damning:


On the morning of May 20, 2022, members of the Annandale Beautification Committee walked southbound on the sidewalk along Maple Place—a road in Fairfax County. The pedestrians, some wearing reflective vests for visibility, were attending mulch beds and performing other roadside maintenance. Suddenly, a gray 2008 Nissan Altima—driven by Konadu—crossed from its northbound lane across the median, through a bicycle lane, and into the southbound lane of travel before proceeding onto the curb and colliding with the group of pedestrians. The Altima did not brake after the collision. Instead, it drove on—through a parking lot and sign—until coming to a stop off the side of the southbound lanes. The collision injured four members of the Beautification Committee, one of whom later succumbed to her injuries. Several surveillance cameras captured footage of the accident and its aftermath.

Now, given the facts, one would think that Konadu would have been happy with just a misdemeanor conviction. Well, yes, but actually no.



See, Konadu didn't thing the accident was her fault because she was swearing to avoid hitting "a man in the middle of the road." There were just two small problems with this claim. First, the surveillance cameras did not show any man in the middle of the road. Second, Konadu's daughter, who was a passenger in the car, testified that her mother was actually leaning down and reach over to retrieve a drink cup that had fallen over and spilled.


Konadu argued at trial and in a post trial motion that the evidence failed to establish that she had the requisite mens rea from reckless driving, which requires something more than simple negligence. The trial court disagreed and convicted her, and the Court of Appeals, Judge Athey, joined by Judge Huff and Causey, affirmed. The problem with Konadu's mens rea argument is that the evidence does not support her asserting that she only momentarily was distracted -- whether by the invisible pedestrian or the spilled drink -- because she traveled a good distance and a fair amount of time without seeming to notice that she was potentially putting, and then actually putting, many people at risk.


Frankly, given that this case is decided under the standard of review of the evidence in the most favorable to the Commonwealth granting to it all reasonable inferences, I am not sure what makes this decision worthy of publication. Perhaps it was to emphasize that a misdemeanor conviction will be given the same level of attention as a more serious one by the Court on those rare occasions when a defendant does see the good result they got by not being charged with more serious offenses.


Fatima Shaw-McDonald v. Eye Consultants of Northern Virginia, P.C., et al. (January 30, 2024) is not really about the underlying medical malpractice claim, but bankruptcy. When a person who has a potential legal claim seeks bankruptcy protection, the claim becomes the "property" of the bankruptcy trustee, and the suit must be brought in the name of the trustee for the benefit of the bankruptcy petitioner's estate. This was decided in Kocher v. Campbell, 282 Va. 113 (2011). But what about a suit that is already pending when the plaintiff files for bankruptcy protection?


Shaw-McDonald filed her malpractice claim for a "botched" eye surgery, then while the suit was pending, sought bankruptcy protection. The defendants argued that she no longer had standing to prosecute and sought dismissal. The trial court stayed the proceedings to await the outcome of the bankruptcy. When the bankruptcy case was ended, and the trustee had not pursued the claim, the trial court granted the motion to dismiss.


The Court of Appeals, Judge Raphael, joined by Judge Causey and Senior Judge Clements, reverse this decision. Because the suit was filed before the bankruptcy, the Court reasoned that this distinguished the case from Kocher, and the court should have permitted the case to go forward after the bankruptcy case ended.


The defendants have filed a notice of appeal in the Supreme Court, and will no doubtedly argue that when the trustee abandoned the claim (rather than intervening or filing a new claim), the case should have ended there. I think there is a fair chance the Justices will want to take a look at this issue.






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