Written by Bob McAdam, Esq.
Edited by Rachel Riordan, Esq.
The Virginia Workers’ Compensation Act and the cases interpreting the Act were turned upside down by the Court of Appeals in Riverside Regional Jail Authority v. Dugger, 68 Va. App. 323 (2017).
In Dugger, the Court of Appeals held that the claimant, a corrections officer, sustained an injury by accident when she participated in simulated fights for four hours. During that training session she was tossed around and taken down. As she was walking away from the training, she immediately noticed pain in her knee.
In finding that the claimant suffered a compensable injury by accident, the Court found that the claimant was not engaged in repetitive movements during this training. Instead, the Court found that the claimant’s injury occurred during the four hour defensive training class, which was sufficiently bounded by rigid temporal precision to be considered an injury by accident.
This opinion, of course, appeared to eviscerate the requirement that the claimant prove an injury by accident, that is, “an identifiable incident or sudden precipitating event.”
However, in one of the first post Dugger opinions the Full Commission, in a 2-1 decision, reversed the deputy commissioner and appeared to reign in the effects of Dugger in Daggett v. Old Dominion University, JCN va00001318459 (March 8, 2018).
In Daggett, the claimant, a technical support provider, testified that he suffered bilateral shoulder injuries when he was moving fourteen separate 4 foot by 8 foot smart boards to collect information from them. The boards weighed between 28-48 lbs. He had to rotate the boards. In the process, his arms and shoulders became very sore.
The deputy commissioner found in favor of the claimant. On appeal, the majority of the Full Commission reversed the decision.
The majority found that the claimant failed to prove that his shoulder injuries resulted from an identifiable incident or a sudden precipitating event, on the day in question.
The majority distinguished Dugger by noting that in Dugger the claimant was not engaged in repetitive movements, but that the injury occurred during the four hour class.
In Daggett, the claimant was engaged in repetitive movement of lifting and turning smart boards for at least an hour.
In Dugger, the claimant sustained a torn meniscus, a sudden mechanical or structural change in the body.
In Daggett, the claimant alleges multiple injuries, including biceps tendinitis and “injuries” to both shoulders.[1]
In Daggett, the preponderance of the evidence suggest that the claimant’s injuries occurred gradually over time. The claimant could not pinpoint when his symptoms began. He continued to work and over the next few days his pain progressively worsened.
In Dugger, the claimant’s pain began immediately at the conclusion of the four hour training.
In Dugger, the claimant reported the incident immediately. In Daggett, the claimant did not complete an accident report until two weeks after the incident.
What does this mean? Has Dugger been judicially altered by a lower court?
The Daggett case will be appealed by the claimant to the Court of Appeals. It will be interesting to see how the Court treats this matter.
The following are takeaways, at least from the majority of the Full Commission.
- The diagnosis is apparently important. A discreet, specific injury is more likely to be considered compensable, rather than an “itis”. An “itis” suggests cumulative trauma over a period of time.
- Claimants who report the incident/accident immediately increase their chances of prevailing.
- Claimants who claim significant pain immediately after the incident/accident increase their chances of prevailing.
- Claimants apparently also need to allege a specific injury on the Claim for Benefits, not relying on the medical records to be incorporated into the Claim for Benefits.
The biggest practice pointer is that any claim that involves an injury occurring over a period of time of more than 15 minutes should be very carefully scrutinized, even in this post Dugger world. The claimant needs to prove , inter alia, an identifiable incident or sudden precipitating event.
The question remains, what is an identifiable incident or sudden precipitating event?
The Daggett case could go a long way in determining this answer, for now.
[1] This was an odd characterization by the Full Commission since one of the treating doctors was of the impression that the claimant as sustaining rotator cuff tears of both shoulders.