Virginia case law has consistently held that in order to prove an “injury by accident,” a claimant must show:
“(1) an identifiable incident; (2) that occurs at some reasonably definite time; (3) an obvious sudden mechanical or structural change in the body; and (4) a causal connection between the incident and the bodily change.” Chesterfield Co. v. Dunn, 9 Va. App. 475, 476, 389 S.E.2d 180, 181 (1990). “Repetitive activity” or “repetitive trauma” injuries are not covered by the Virginia Workers’ Compensation Act. However, in Van Buren v. Augusta County., 66 Va. App. 441 (2016), the Court of Appeals held that a firefighter who noticed neck and shoulder pain after a 45-minute rescue suffered an injury by accident. The Commission followed that decision in Dugger v. Riverside Regional Jail Authority, JCN VA00001117636 (Jan. 3, 2017), holding that the claimant proved an injury by accident where she noticed a swollen knee after engaging in 4 hours of physical tactics training. Those decisions suggested a fundamental change in the definition of “injury by accident.”
A recent Court of Appeals decision, Kim v. Roto-Rooter Services, Record No. 1053-16-4 (Mar. 7, 2017), suggests that the longstanding definition of “injury by accident” remains intact. In that case, the evidence established that on May 24, 2015, the claimant was working at a movie theater putting a hose into the main line and then pulling it out. While working, the claimant was kneeling with his left knee on the ground. After about two and a half hours of pulling the hose in and out, the claimant’s knee was very sore and painful. When the claimant woke up the next day, his knee was significantly swollen. The claimant was diagnosed with an osteochondral fracture/lesion in the femoral condyle. The claimant’s treating physician opined that the condition was caused while kneeling down working on the sewer line at the movie theater on May 24, 2015. When the claimant was interviewed after the accident, he stated that his knee injury was caused by “kneeling down a long, long time.” The Deputy Commissioner found that the claimant met his burden of proving an “injury by accident” to his left knee. The Full Commission reversed on the basis that the claimant “failed to prove an identifiable incident that caused his injury” and “did not identify a particular movement or action that resulted in the onset of his symptoms.” The claimant then appealed that decision to the Court of Appeals.
On appeal, the claimant argued that his injury was similar to the compensable injury suffered by the claimant in Van Buren. The Court of Appeals disagreed, and declined to apply Van Buren to Kim’s case. First, the Court noted that Van Buren was engaged in a variety of activities including lifting, holding, twisting, pushing, and pulling. Kim, however, was kneeling down for a long period of time and performing the same motions over and over again. The Court found that Kim’s injury, unlike Van Buren’s, was the result of repetitive activity and therefore non-compensable.
Most importantly, the Court held that Van Buren was inapplicable because it “carves out a so-called first responder exception to the rule.” The Court noted that Van Buren “was involved in an adrenaline-fueled rescue attempt, in which the claimant could not possibly pinpoint an exact moment for his injury.” By contrast, Kim was performing his ordinary, daily work. The Court ultimately held that Kim failed to prove an identifiable incident which caused his injury, and thus, his injury was not compensable.
The Kim decision is an unpublished opinion from the Court of Appeals and therefore does not expressly overrule Van Buren. However, Kim does suggest that Van Buren has limited applicability. The Court hinted that Van Buren merely created a small exception to the “injury by accident” rule rather than a vast expansion of it. Moving forward, my advice to Virginia adjusters is:
- Attempt to establish that the claimant’s motions were repetitive and similar in nature;
- Attempt to establish that the claimant cannot pinpoint the moment of injury; and
- Attempt to establish that the claimant was not involved in an emergency, adrenaline-fueled situation.
You can read the full Opinion here: