Written by Claire C. Carr, Esq.
Edited by Rachel A. Riordan, Esq.
It has been long held in Virginia that to prove an “injury by accident,” a claimant must prove: (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. Additionally, it has long been held that injuries resulting from repetitive trauma or cumulative events and injuries sustained at an unknown time are not considered “injuries by accident.” Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989). In the industry, it’s been referred to as a requirement that a claimant show a “snap, crackle, pop,” or a specific moment of injury at a specific moment in time.
And then came Van Buren. Several months ago we reported on the case of Van Buren v. August County, Court of Appeals, Record No. 1975-15-3 (July 19, 2016) which addressed what constitutes an “identifiable incident” at a “reasonably definite” point in time. Van Buren was a firefighter injured during a 45 minute rescue operation which involved many different physical tasks. Even though he could not identify a specific moment when his injury occurred, the Court of Appeals held the 45 minute rescue operation was sudden and specific enough to constitute an “identifiable incident occurring at a reasonably definite time.” The Court referenced the adrenaline rush during the rescue which may have masked the exact moment of injury, and held that public policy favored treating the entire 45 minute rescue as “one piece of work.”
In our newsletter reporting the Van Buren case, we questioned whether the court’s reference to adrenaline was intended to create an exception for those involved in an adrenaline-fueled activity or whether the court was re-defining “injury by accident” for all cases. We suggested that the holding might breathe new life into claims denied due to gradual or cumulative onset, the result of multiple different activities, or a lack of a sudden or specific incident.
Then in January 2017, the Full Commission decided Dugger v. Riverside Regional Jail Authority (JCN: VA00001117636) which involved a correctional officer who completed a very physical, four hour defensive training exercise and felt no pain in her knee until after it had ended, as she was walking away. She could not point to any moment in time when she hurt her knee. The Full Commission, relying on Van Buren, held the injury compensable. The employer appealed to the Court of Appeals, arguing the injury was the result of repetitive movements, that there was no identifiable incident that caused the injury and that the 4 hour training period was too long to constitute an “identifiable incident.” The employer argued, among other things, that in an unpublished Court of Appeals case decided recently, Kim v. Roto Rooter Servs. Co., No. 1053-16-4 (March 7, 2017) the court said that Van Buren only applied to first- responders, excusing them from having to show a specific moment during which they were injured, which would not apply to Dugger. The court, however, rejected the statement from its earlier ruling in Kim, and instead stated that Van Buren did not create a “first responder exception.” Instead, it explained that there are simply certain circumstances, such as those prevalent in Van Buren in which a claimant does not need pinpoint the exact moment of injury in order for an accident to considered an “injury by accident”. It concluded that Dugger’s injury was not the result of repetitive movements, that there was as temporal link between her injury and the defensive training class and that the four hour training was sufficiently “bound with rigid temporal precision” such that she need not point to the exact moment her injury occurred. Dugger v. Riverside Regional Jail Authority, Court of Appeals, Record No. 0153-17-2 (July 25, 2017). The employer and carrier intend to appeal to the Virginia Supreme Court.
Thus, what many thought was a narrow ruling to protect first-responders, may now apply to potentially any claimant engaged in work comprised of multiple activities extending over several hours. There is a lack of clarity on which circumstances warrant excusing a claimant from identifying the specific moment of injury, though we know it is not just limited to adrenaline-fueled activities or first-responders.
Moving forward, adjusters should attempt to break down the specific activities when an injury occurs over a period of time, looking for activities and motions that are similar in nature verses multiple activities of a different nature. For example, was the claimant lifting bags of mulch over and over from one pile to another or were they unloading various items, stacking them onto pallets, moving the pallets and unloading them into a truck? Additionally, inquire when the claimant first noticed pain or symptoms in relation to the end of the activity – was it immediately afterwards or was it that night or the next morning? The longer the time between the activity and the onset of pain, the less likely it is to be “bound with rigid temporal precision.”