by KPMLAW | Sep 12, 2016 | KPMBlog, News, Uncategorized
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...
by KPMLAW | Jun 14, 2016 | KPMBlog, News, Uncategorized, Updates
Written by Rachel Riordan, Esq. Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is often necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. In other cases, the words of a statute are vague enough to allow a Deputy Commissioner to infer his or her own interpretation of the meaning of words. In Roberson v. Peninsula Auto Painting, Jurisdiction Claim No. 1353553 (April 28, 2016), the Commission addressed the claimant’s request for a hand brake for his motorcycle. The claimant sustained a compensable right knee injury which, unfortunately, developed an infection requiring an above-the-knee amputation. The claimant requested payment for the modification of his motorcycle. Virginia Code Section 65.2-603 addresses the defendants’ responsibility for medical equipment and modifications. The statute includes modifications to the claimant’s home and automobile up to $42,000.00 per accident. Pertinent to the statutory dispute in Roberson, it provides for “modifications to or equipment for the employee’s automobile…” The Deputy Commissioner, in his ruling, acknowledged that a motorcycle is not precisely an automobile, but it serves the same purpose and is an automated means of transportation. Therefore, the Deputy Commissioner believed the term “automobile” was vague and it could reasonably be interpreted to be any automated means of transportation, including a motorcycle. The employer argued the word “automobile” was not vague and a motorcycle is not an automobile. In other Virginia statutes, the term “motor vehicle” has been specifically defined as an “automobile, motorcycle, mobile home, truck, van or other vehicle operating on public highways and streets.” Virginia...
by KPMLAW | May 24, 2016 | KPMBlog, News, Uncategorized
Idiopathic and unexplained accident cases are on the rise as more employees are taking medications for a myriad of health issues. An idiopathic accident is one where the injury is caused by a preexisting personal disease of the employee (diabetes, seizures, etc.) and can be compensable if the employment increases the dangerous effects of the condition. Typically, compensable idiopathic injuries are found in motor vehicle accident and fall from ladder cases. Unexplained injuries are not compensable because the claimant cannot prove that the injury arose out of the employment. In an unpublished decision, Burney-Vivens v Community Corrections Administration, the Court of Appeals addressed the idiopathic v. unexplained injury issue. In Burney-Vivens the claimant had a history of migraines. She had also sustained a compensable back injury in 2012 for which she was still taking medication. She was driving an employer provided car while on assignment for her employer. Because she was driving she did not take her back pain medication that day. She was involved in a single car accident in which her car left the road and went down an embankment. She testified that at a certain point in time on the trip, after driving past a sign for the Town of Boones Mill her vision diminished and started blurring. The next thing she remembered was crawling out of the car. She did not remember what caused her to run off the road. At the hearing, the claimant alleged that her accident was caused by an idiopathic condition of blurred vision due to her pre-existing migraine headaches. In the alternative, she alleged that she blacked out because of...
by KPMLAW | Apr 25, 2016 | KPMBlog, News, Uncategorized, Updates
Written by Chris Wilson, Esq. Edited by Rachel Riordan, Esq. A recent unpublished opinion by the Virginia Court of Appeals provides important guidance on what a claimant must show to prove that an injury “arose out of” his or her employment. In United Airlines, Inc. v. Taylor, No. 1169-15-4, 2016 Va. App. LEXIS 72 (Va. Ct. App. March 15, 2016), the claimant’s work accident was found non-compensable despite the fact that he lost his balance and fell down several stairs while carrying items totaling around 35 pounds. This case should serve as a reminder that the claimant must show not only that he was injured at work, but that “a condition of the workplace either caused or contributed” to the injury. See Southside Virginia Training Ctr./Commonwealth of Virginia v. Shell, 20 Va. App. 199, 202, 455 S.E. 2d 761, 763 (1995). In other words, the fact that the claimant is carrying something at the time of his injury does not necessarily mean the accident is compensable. In Taylor, the claimant was employed as a ramp agent for United Airlines. His job duties included unloading baggage and other cargo from aircraft. On the day of the accident he was walking up a set of metal stairs while holding two strollers under his arms. Taylor estimated the stroller in his right hand weighed approximately thirty pounds, while the stroller in his left hand weighed about five pounds. As he was walking up the stairs his right knee “popped,” causing him to fall down the stairs and onto his back. His knee then popped back into place. Taylor admitted that the stairs...
by KPMLAW | Feb 23, 2016 | KPMBlog, News, Uncategorized
Written by Jessica Gorman, Esq. Edited by Rachel Riordan, Esq. What additional injuries an employer and carrier may be responsible for under the compensable consequence doctrine or chain of causation rule You have an accepted accident for which an injured worker has injured his left ankle. While recuperating from surgery on his left ankle, his ankle gave way causing a right knee injury. Are you responsible for the right knee injury? The answer is yes. Subsequently, that right knee injury causes the injured worker to fall causing a new injury to the right knee. Are you responsible for that new knee injury? The answer may be no as a consequence of a compensable consequence, which is not covered under the Virginia Workers’ Compensation Act. In Virginia, the doctrine of compensable consequence “is well established and has been in existence for many years.” Williams Indus., v. Wagoner, 24 Va. App. 181, 186, 480 S.E.2d 788, 790 (1997). This doctrine provides the standard that “when a primary injury under the Workers’ Compensation Act is shown to have arisen out of the course of employment, every natural consequence that flows from the injury is compensable if it is a direct and natural result of a primary injury.” Leonard v. Arnold, 218 Va. 210, 237 S.E.2d 97 (1977). Specifically, any such secondary injury is related as it if occurred in the course of and arising out of the injured workers’ employment. Bartholow Drywall Co. v. Hill, 12 Va. App. 790, 794, 407 S.E.2d 1, 3 (1991). This doctrine is also known as the chain of causation rule and provides and states somewhat differently...
