Written by Claire Carr, Esq.
Recently, the Virginia Court of Appeals ruled that activity taking place over 30-45 minutes constituted an identifiable incident occurring at a reasonably definite time.
To prove an “injury by accident” under the Virginia Workers’ Compensation Act, 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.” Hoffman v. Carter, 50 Va. App. 199, 212, 648 S.E.2d 318, 325 (2007).
The Court of Appeals addressed this definition in Van Buren v. August County, Record No. 1975-15-3 (July 19, 2016). Robert Van Buren was a firefighter who responded to a call to aid a 400 lb. man who fell in the shower and broke his leg. Van Buren and another rescue worker used a sheet to make a sling and lifted the man out of the shower, lowered him to the floor, then onto a flat stretcher. They dragged the stretcher down the hall, hoisted him up onto a wheeled stretcher, pushed it down a hill and finally lifted the stretcher up into an ambulance. The events lasted 30-45 minutes.
At no point during the actual events did the claimant feel any pain. He first noticed pain in his arm after he closed the ambulance doors. He suggested the delay was due to the adrenaline rush during the rescue. Four days later he reported pain in his shoulder, citing a 2 week history of pain which had become worse after lifting patients all day at work. He was ultimately diagnosed with a herniated cervical disk. Van Buren’s physician stated that the twisting, lifting, awkward movements and exertion of lifting the man out of the shower, down the hall, onto the stretcher and into the ambulance caused the injury.
The Deputy Commissioner awarded benefits, concluding that to require the claimant “to pinpoint the exact moment of the onset of pain during an adrenaline fueled rescue attempt would yield a ridiculous and unjust result.” The Full Commission reversed, relying on Morris v. Morris, 238 Va. 578, 385 S.E.2d 858 (1989). Morris is the seminal case which held that an injury must be caused by an identifiable incident or a sudden precipitating event to be compensable. The Morris Court noted that such events are “bounded with rigid temporal precision” and made clear that injuries occurring at an unknown time or from cumulative events or repetitive activities are not injuries by accident under the Act.
The Full Commission found there was no injury by accident because the claimant never identified a specific moment in time when he was injured such as when he lifted the patient, or during any of the strenuous activities required during the rescue. Because he did not identify a specific event as the cause of the injury, or if it was even caused by a specific event verses the cumulative effect of the rescue effort, the Commission found he did not prove an injury by accident under Morris.
The Court of Appeals reversed the Full Commission and agreed with the Deputy Commissioner that Van Buren proved an injury by accident, holding that “the forty-five-minute period during which Van Buren aided the injured man provided the necessary rigidity of temporal precision to constitute one event.” In other words, 45 minutes of exertion was sudden and specific enough to be considered a reasonably definite point in time. Interestingly, the Court referenced the adrenaline mentioned by the claimant and said “[t]o the extent adrenaline masked the exact moment of the onset of pain resulting from an injury incurred in such a scenario, public policy favors treatment of the entire forty-five-minute rescue as the ‘reasonably definite time’ within which the injury occurred.” It concluded the entire rescue was one “piece of work” and the 45 minute period constituted “one event” and not numerous discrete events.
Whether this so-called ‘adrenaline factor’ could distinguish this situation from other injuries occurring as a result of several events over a period of time remains to be seen. It may be a distinction without a difference, however, as the Court relied on several post-Morris decisions not involving adrenaline producing circumstances where injuries resulting from “several sudden or immediate events” were considered “one specific piece of work.” (R&R Constr. Corp. v. Hill, 25 Va. App. 376, 488 S.E.2d 663 (1997) (lifting 5-7 five-gallon paint buckets constituted a sudden event); Hoffman v. Carter, 50 Va. App. 199, 648 S.E.2d 318 (2007) (exposure to plaster dust over 3-4 hours was an identifiable incident).
The significance Van Buren is that it will likely breathe new life into claims denied due to gradual or cumulative onset, the result several incidents or events, or a lack of a sudden or specific incident. Claimant attorneys may be willing to take a swing on these denials where they may have previously walked away. It’s advisable to obtain as much detail as possible from the claimant regarding the onset of pain and the length of time spent doing the task(s) at issue. Look for angles to demonstrate that the tasks being performed did not constitute “one piece of work” but were several different and tasks taking place over a period of time.