Don’t Forget the Sudden Mechanical Change!

Written by Chris Wilson, Esq. Edited by Rachel Riordan, Esq. Many workers’ compensation cases in Virginia are defended on the basis that the claimant did not suffer an “injury by accident.” Because Virginia is an “actual risk” as opposed to a “positional risk” state, meaning an accident is not compensable merely because it happened at work, determining whether the claimant can establish an injury by accident is often the first step for both attorneys and adjusters when reviewing a new claim. One component of the “injury by accident” test in Virginia—the requirement that the claimant prove an “obvious sudden mechanical or structural change in the body”—is an often neglected but important means of defending injury by accident claims. Much of the black letter law explaining the meaning of the phrase “injury by accident” is blurred and even contradictory, particularly in light of the recent Court of Appeals decisions in  Van Buren v. Augusta County, 66 Va. App 441, 787 S.E.2d 532 (2016) and Dugger v. Riverside Regional Jail Authority, Record No. 0153-17-2  (July 25, 2017), but returning to the following four-part test can make the process more straightforward. Every claimant alleging an injury by accident is required to establish each of the following: (1) an identifiable incident; (2) that occurred 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. Although each element of this four-part test must be shown, frequently the analysis of both claims adjusters and defense attorneys is focused on only the first two prongs of the test....

Defending Insurers from Direct Actions by Medical Providers

Written by Helen Jhun, Esq. Edited by Billpfund , Esq. When settling cases, liability insurers often have to deal with claims of various lienholders and assignees who also claim to have an interest in settlement proceeds. Medical providers have a statutory lien under Virginia Code Sections 8.01-66.2 and 8.01-66.5. In addition to the statutory liens, medical providers who commonly treat injuries related to personal injury cases will often require their patients sign an assignment of benefits. This allows treatment of individuals who may not be able to pay out-of-pocket medical expenses up front. Rather than receiving payment up front, providers agree to be paid upon settlement of a suit.   When a Plaintiff is represented by an attorney, there is an affirmative ethical duty on the Plaintiff’s attorney to ensure that all liens and assignments are protected. However, when a Plaintiff is pro se, insurers must deal with the question of who is responsible for protecting those claims.   The Supreme Court of Virginia very recently answered the question of whether an assignee can maintain an action against a liability carrier for failing to protect his assignment of benefits when settling with a pro se claimant. In the case Erie Insurance Company v. McKinley Chiropractic Center, VLW 017-6-072 (September 14, 2017) , the Supreme Court held, in very clear terms, that a medical provider, as the assignee of benefits, cannot maintain a direct action against a liability insurer for failing to honor the assignment.   The facts in the Erie case are very common in liability claims. A party claims he is injured in a motor vehicle accident and...

Recent Ruling Affecting Admissibility of Payments by Insurance Carrier to Medical Expert and Medical Expert Testimony

Written by Stephanie G. Cook, Esq. Edited by Bill Pfund, Esq. A recent, federal case significantly affects the admissibility in Virginia of medical expert information in personal injury cases in at least two ways. Rice v. Williams, 2017 U.S. Dist. Lexis 117504. In Rice, Judge Urbanski, sitting in the United States District Court for the Western District of Virginia, allowed plaintiff to introduce evidence showing the amount of fees that defendant’s medical expert had received from the defendant’s carrier, State Farm. The plaintiff was also allowed to introduce fees the defendant’s expert had received from other insurance carriers. Judge Urbanski found these payments were relevant and admissible because they tended to show show bias or prejudice of the expert witness. The court in Rice also examined the testimony of plaintiff’s treating, orthopedic surgeon and excluded the surgeon from testifying at trial about future surgery he recommended.   Rice v. Williams arose out of an automobile accident. The defendant, Williams, filed two pre-trial motions in limine. The first motion was to exclude the cost of future lumbar or cervical fusion surgeries on the basis that those surgeries were not medically necessary. The court sustained defendant’s motion, finding that the statements from the plaintiff’s treating, orthopedic surgeon during depositions were mere recommendations for the fusions. Consequently, the surgeries were not “reasonably probable.” Rice, 2017 U.S. Dist. LEXIS 117504, 1-2.   The testimony of the orthopedic surgeon is too detailed to go into in this article. However, it is worth reviewing in any case where a physician’s testimony as to future surgery or treatment is somewhat equivocal. During deposition questioning, the physician...

YOUR EMPLOYEE SAID WHAT??? Plaintiff Sanctioned for Undisclosed Communications with Defendant’s Employees

Written by Brian A. Cafritz, Esq. Edited by Christopher E. Bergin, Esq. In almost every case involving a corporate defendant, there comes a point where the company must wonder what damaging statements its employees may have made.  Despite training and educating employees not to talk to anyone but the company lawyers, it is practically and logistically impossible to prevent every employee from talking.   The fear is that an employee speaks without knowing the impact of his or her statement, and that statement winds up undermining the company’s defense to a major lawsuit. Recently, a Virginia State Circuit Court Judge refused to allow statements by a defendant company’s employee, when the statements were obtained in surreptitious methods.  The case was Jalal Haidar v. Toto U.S.A., Inc. et al., from the Circuit Court of Arlington County.   In Haidar, the plaintiff sued Toto and others in a products liability case claiming personal injuries sustained in a hotel room accident.  Mr. Haidar was represented by counsel in the lawsuit, but he began having direct communications with Toto’s technical support/customer service departments related to the litigation without identifying himself as a litigant.  Plaintiff wanted to use the statements made by Toto’s employees at trial, and Toto moved for sanctions, asking the court to exclude those statements. During the motion, the court learned that Mr. Haidar disclosed the contents of the communications to his attorneys, continued to have additional communications with department employees about the same subject matter, and again reported the contents to counsel.  Toto’s counsel ultimately learned of the illicit communications and contacted Haidar’s counsel demanding that Haidar cease and desist from any...

If my dog was a good boy, can I recover for emotional damages when he was hurt by someone else’s negligence?

Written by Christopher Bergin, Esq. Edited by Brian Cafritz, Esq. We love our pets. In some households, a companion animal might not be considered a “pet” at all, but rather a fully-fledged member of the family. In fact, we love our pets so much that even the Supreme Court of Virginia has recognized the deep and genuine bond that forms between a pet and owner: “An emotional bond may exist with a pet resembling that between parent and child, and the loss of such an animal may give rise to grief approaching that attending the loss of a family member.” Kondaurov v. Kerdasha, 271 Va. 646, 657, 629 S.E.2d 181, 186 (2006). For retailers who provide pet-grooming services and for dog-friendly restaurants, this raises an important question: if a pet is harmed by a defendant’s negligence, can the pet’s owner recover damages for emotional distress or loss of companionship? Generally speaking, the answer is no. The vast majority of states hold that pets—however beloved—are personal property. As such, most courts categorically refuse to allow damages for emotional distress, which arise from the negligent injury to or death of a pet. Kondaurov, 271 Va. at 657, 629 S.E.2d at 182 n. 4. A plaintiff’s recovery in these cases will be limited to the fair market value of the animal. At least two states (Illinois and Tennessee) have found the majority rule too harsh. These states have enacted legislation which specifically allows pet owners to recover emotional and non-economic damages for the loss of a pet under certain prescribed conditions. Nevertheless, even these sympathetic statutes are narrowly limited in their application....

Failure to Supervise Theory Fails Again

The United States Federal Courts in Virginia continue to interpret Virginia law as not recognizing an independent tort for negligent supervision. While it is contrary to some state circuit court decisions indicating that Virginia may yet recognize the tort under certain factual circumstances, recently decided cases seem to show the Virginia courts are moving  further away from recognizing negligent supervision as a cause of action. The claim for negligent supervision was most recently addressed by the United States District Court for the Western District of Virginia (Charlottesville) in the matter of MCI Communications Services, Inc. v. MasTec North America (Moon),No. 3:17cv00009  May 24, 2017.  In MCI Communications, the district court granted defendant’s 12(b)(6) motion to dismiss plaintiff’s negligence claim based on a failure to train or supervise theory.  Plaintiff MCI had fiber-optic cables buried in VDOT right of ways along certain railroad tracks.  MasTec North America, Inc., is an excavating company that was using excavation equipment near the right-of-way and severed the MCI cable which interrupted service.  MCI alleged that MasTec’s negligent acts included failing to train its employees on regulatory and safety standards and failing to supervise its employees to ensure compliance. Judge Moon noted that Virginia’s recognition of negligent supervision claims is uncertain.  He discussed recent Federal Court decisions which have construed Virginia Supreme Court precedent to hold that there is no cause of action for negligent supervision in Virginia while a minority of state courts limit that precedent to its facts.  The precedent to which Judge Moon referred to is Chesapeake & Potomac Tec. V. Dowdy, 235 Va. 55, 61, 365 S.E.2d 751, 754 (1988).  In...