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. Consider the following scenario: an employee trips over a cord at work and falls to the ground, landing on his shoulder. He immediately reports the incident to a supervisor but states he does not need medical treatment. Three weeks later the employee visits a doctor complaining of pain in his right shoulder, and an MRI reveals degenerative conditions but no acute injury.
The employee in this example has certainly experienced an “accident” at work. His fall was an “identifiable incident” that occurred at a “reasonably definite time.” Nevertheless, Virginia law requires more—evidence that the accident caused a “sudden mechanical or structural change” in the body. Notably, even if the claimant has a preexisting condition in the body part allegedly injured, such as advanced arthritis, he still must prove that the accident caused a sudden mechanical change that materially aggravated the preexisting condition. An increase in symptoms alone, such as an increase in pain, is not enough to meet the claimant’s burden to show a mechanical or structural change in the body.
Many times a defense based on the claimant’s failure to establish a mechanical or structural change is established through medical records, including medical questionnaires or reports from a treating or peer review physician. Nevertheless, the claimant’s own testimony regarding the accident and the onset of symptoms can be critical, and employee accident reports and recorded statements are often the first step in building the defense. When taking recorded statements, for example it is helpful to focus on exactly when the claimant began to feel pain in the affected body part. How soon after the accident did he or she begin to feel pain? Where, exactly, was the pain located? Has the claimant ever received medical treatment to that body part in the past? Have the claimant confirm that whatever body parts he or she alleges were injured were the only body parts affected by the work accident.
Many times in an accident report or recorded statement a claimant will state that he or she felt a “pop” or “pulling sensation” or something similar at the time of the alleged accident. The Virginia Workers’ Compensation Commission often relies on statements like this to satisfy the requirement to show an obvious sudden mechanical or structural change. Nevertheless, such statements, without more, are not conclusive proof of a mechanical or structural change.
In the case of Gillus v. Walmart, VWC File No. 227-90-47 (Mar. 16, 2007), for example, the claimant testified that he was waxing grocery aisles for the employer when he picked up a blower used to dry the wax and felt a “pop” in his shoulder. In his accident report, however, the claimant mentioned having a previous right shoulder injury, and x-rays taken of his neck and shoulder showed only degenerative changes. Defense counsel obtained a questionnaire from the treating physician stating that he could not say whether or not the claimant had sustained a sudden mechanical or structural change in the body as a result of the work accident. On this evidence, the Commission upheld the Deputy Commissioner’s determination that the claimant had not met his burden to prove an injury by accident.
The takeaway from this case and others like it is that even evidence of a specific incident, such as a fall, or testimony that the claimant suffered the familiar “snap, crackle, pop” at the time of the alleged accident, is not necessarily sufficient to establish a compensable injury by accident. Particularly in cases where the mechanism of injury is very minor, adjusters should be mindful of the circumstances that might support a “no sudden mechanical or structural change” defense based upon the medical evidence.
1. Was there any significant delay between the accident and the onset of symptoms?
2. Is there any evidence of a preexisting condition in the affected body part, such as statements in the accident report or first doctor’s visit?
3. Did the claimant initially deny needing medical treatment for the accident?
4. Does the initial diagnostic testing show only the presence of degenerative, rather than acute, conditions?
These factors should be considered even in cases where there is no dispute that an “accident” occurred, or when one or more body parts have been accepted, as it is the claimant’s burden to prove a sudden mechanical or structural change in each body part allegedly injured in the work accident. Adding the above analysis to your mental “checklist” when evaluating new claims can help in identifying claims that appear compensable, but in which there may be a valid defense on the basis that the claimant cannot establish a sudden mechanical or structural change.