Written by Megan Wagner, Esq.
Edited by Bob McAdam, Esq.
It is important for Workers Compensation adjusters and attorneys to closely examine whether a Virginia claimant has suffered a “sudden mechanical or structural change in the body.” If not, the claim should be denied. However, this elementary defense is often overlooked. In Virginia many claims are defended on the basis that a claimant did not suffer an “injury by Accident” under the Act. 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.
Recent Commission Opinions show that disregarding the “mechanical change element” may result in accepting claims that are not compensable under the Act. The Commission’s split 2-1 decision in Davis v. Wal-Mart Associates, Inc., JCN VA02000037952 (Feb. 27, 2023) provides a helpful illustration of this legal issue. In Davis the Full Commission affirmed the finding of the Deputy Commissioner that claimant failed to establish a “sudden mechanical or structural change in the body.” The claimant in Davis reported a sharp pain in his back while kneeling to place a twelve-pack of ginger ale on a bottom shelf. Plain film x-rays taken at the hospital noted postoperative changes from a prior surgery but no acute fracture, dislocation or disease. A later MRI revealed the prior surgical changes but no canal stenosis or foraminal narrowing. The treating physician commented that the MRI looked “similar to prior imaging.” The physician also completed a questionnaire for the employer agreeing that after review of the MRI that he could state within a degree of medical probability that claimant sustained an actual mechanical or structural change in the body.
It is important to also mention the Supreme Court of Virginia’s decision in Alexandria City Public Schools v. Handel, Record No. 190957 (October 15, 2020). In Handel, the Supreme Court vacated and remanded the finding of the Court of Appeals of Virginia that a “single “sudden mechanical change or structural change” anywhere in the body suffices to establish that a claimant has suffered an “injury by accident””. In Handel, the claimant alleged injuries to multiple body parts. The decision in Handel makes it clear that in Virginia the claimant must establish a “sudden mechanical or structural change” for each alleged body part claimed. The Court observed that the phrase “sudden mechanical or structural change” was first introduced into the caselaw in 1955 in the decision of Virginia Elec. & Power Co. v. Quann, 197 Va. 9 (1955). Also of significance is the Court of Appeals holding on remand that “mere pain in a body part, standing alone, does not establish a mechanical or structural change to that body part.” Alexandria City Public Schools v. Handel, Record No. 1582-18-4 (May 11, 2021).
A similar outcome occurred in Bayne v. Horizon Behavioral Health, JCN VA00001339173 (Nov 19, 2019), where the Full Commission held that the claimant did not establish a mechanical change as a result of her accident, and therefore, did not establish a compensable injury. There the claimant suffered a workplace accident and the attending physician’s report indicated she suffered a lower back strain. However, X-rays were taken, which failed to show any mechanical change in the body and indicated that her pre-existing spinal fusion were intact. In affirming the Deputy Commissioner’s denial, the Full Commission cited Dr. Vanichkachorn, who treated the claimant before and after the alleged work accident. The doctor opined that there was no evidence of any structural or mechanical change in comparing diagnostic studies taken before versus after the incident. He opined that the claimant did not sustain a new or acute injury as a result of the incident and that the claimant’s ongoing symptoms were related to her prior back surgeries. The Commission also cited the claimant’s chiropractic records, which showed no increase in lumbar symptoms on the date of the incident. The court noted that, “an aggravation of symptoms, without evidence of a sudden mechanical change in the body, is insufficient to qualify as an injury caused by a compensable accident.”
Claims Investigation and Defense Strategy Tips:
When taking recorded statements, 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. Was there any pop or snap at the time of the incident?
Adjusters should be particularly mindful of this potential defense in cases involving pre-existing conditions and/or in instances where diagnostic films reveal no mechanical or structural change after the accident. Often, we see benign or degenerative MRI’s and X-Rays—or diagnostics that are virtually the same as pre-accident diagnostics. Those diagnostics may be used to solicit an opinion from a treating physician or IME doctor as to whether the objective evidence shows a “mechanical or structural change in the body.”
The takeaway 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.
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. Do not be so quick to send out a medical award agreement where there may be reason to question whether a mechanical change in the body has occurred.
As always, if you have any questions, please feel free to contact any of the Workers’ Compensation Team attorneys at KPM LAW. We would be happy to roundtable any cases where compensability is in question.