What is an "injury by accident"?
Answer
To establish an "injury by accident" under Virginia's Workers' Compensation Act, a claimant must generally prove four elements: (1) an identifiable incident, (2) that occurred at a reasonably definite time, (3) resulting in an obvious sudden mechanical or structural change in the body, and (4) a causal connection between the incident and the bodily change.
Explanation
Several cases, including Dep't of Motor Vehicles v. Bandy, City of Charlottesville v. Sclafani, and Southern Express v. Green, explicitly outline the four elements a claimant must prove to establish an "accident by accident" under the Virginia Workers' Compensation Act. These cases emphasize that the injury must arise from an identifiable incident that occurred at a reasonably definite time, and that the injury must result in an obvious sudden mechanical or structural change in the body. Additionally, the claimant must demonstrate a causal connection between the incident and the bodily change.
Some cases, such as Kjellstrom Lee, Inc. v. Saunders and Alexandria City Pub. Sch. v. Handel, do not explicitly list the four elements but still discuss the requirements for establishing an "injury by accident" in a manner consistent with the cases that do. For example, Kjellstrom Lee, Inc. v. Saunders discusses the requirement that the injury arises from the workplace conditions. In contrast, Alexandria City Pub. Sch. v. Handel discusses the requirement of a "sudden mechanical or structural change" in the body.
Several cases, including Jackson v. Ceres Marine Terminals, Inc. and Fam. Dollar St. v. Presgraves emphasizes that injuries resulting from repetitive trauma, continuing mental or physical stress, or other cumulative events are not considered "injuries by accident" under the Act. Additionally, Vepco v. Cogbill and Badische Corp. v. Starks reaffirms the requirement that an "injury by accident" must involve an "obvious sudden mechanical or structural change in the body."
Finally, some cases address specific types of injuries and whether they qualify as "injuries by accident" under the Act. For example, Ogden Aviation Services v. Saghy discusses whether carpal tunnel syndrome can qualify as an "injury by accident" depending on how it develops. In contrast, Jackson v. Ceres Marine Terminals, Inc. discusses the compensability of purely psychological injuries.
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Many cases have been decided before the Virginia Workers Compensation Commission the Virginia Court of Appeals, and the Virginia Supreme Court. While the list below is far from exhaustive, you can get a sense of the way that the Courts in Virginia handle this issue:
Dep't of Motor Vehicles v. Bandy, Record No. 1878-18-2 (Va. Ct. App. Apr. 30, 2019)
This case directly addresses the definition of "injury by accident" under the Virginia Workers' Compensation Act, outlining the elements that a claimant must prove to establish a compensable injury.
"To be compensable under the Virginia Workers' Compensation Act, an injury by accident must "aris[e] out of and in the course of the [claimant's] employment." Code § 65.2-101. The claimant must prove, by a preponderance of the evidence, that an identifiable incident occurred at some reasonably definite time, resulting in an obvious sudden mechanical or structural change in his body that is causally connected to the incident. See Hoffman v. Carter, 50 Va. App. 199, 212 (2007); Va. Dep't of Transp. v. Mosebrook, 13 Va. App. 536, 537 (1992). "[A] gradually incurred injury is not an injury by accident within the meaning of the Act," Hoffman, 50 Va. App. at 213 (quoting Dollar Gen. Store v. Cridlin, 22 Va. App. 171, 175 (1996)), so that "injuries resulting from repetitive trauma, continuing mental or physical stress, or other cumulative events, as well as injuries sustained at an unknown time, are not 'injuries by accident,'" Dugger, 68 Va. App. at 38 (quoting Morris v. Morris, 238 Va. 578, 589 (1989))."
City of Charlottesville v. Sclafani, 70 Va. App. 613 (Va. Ct. App. 2019)
This case directly addresses the definition of "injury by accident" under the Virginia Workers' Compensation Act, outlining the elements that a claimant must prove in order to establish a compensable injury.
"The Virginia Workers' Compensation Act requires that an injury by accident "aris[e] out of and in the course of the [claimant's] employment" to be compensable. Code § 65.2-101. The claimant must prove, by a preponderance of the evidence, that he sustained a compensable injury. See Va. Dep't of Transp. v. Mosebrook, 13 Va. App. 536, 537, 413 S.E.2d 350 (1992). In addition, the claimant bears the burden of establishing that an identifiable incident occurred at a reasonably definite time that resulted in an obvious sudden mechanical or structural change in his body that was causally connected to the incident. See Hoffman v. Carter, 50 Va. App. 199, 212, 648 S.E.2d 318 (2007). "A gradually incurred injury is not an injury by accident within the meaning of the Act." Id. at 213, 648 S.E.2d 318 (quoting Dollar Gen. Store v. Cridlin, 22 Va. App. 171, 175, 468 S.E.2d 152 (1996) ). Thus, "injuries resulting from repetitive trauma, continuing mental or physical stress, or other cumulative events, as well as injuries sustained at an unknown time, are not ‘injuries by accident.' " Dugger, 68 Va. App. at 38, 802 S.E.2d 184 (quoting Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858 (1989) ). Instead, regarding the element of timing, the claim regarding the incident must be "bounded with rigid temporal precision." Morris, 238 Va. at 589, 385 S.E.2d 858."
Southern Express v. Green, 257 Va. 181 (Va. 1999)
This case directly addresses the definition of "injury by accident" under the Virginia Workers' Compensation Act and sets out the three elements a claimant must prove
to establish such an injury.
"Because a claimant's chilblains suffered as a result of being exposed to cold temperature in a walk-in cooler during a four-hour period constituted an "injury by accident" under the Virginia Workers' Compensation Act, caused by an identifiable incident and resulting in a structural change in her body, the judgment of the Court of Appeals that the injury is compensable under the Act is affirmed."
"The burden of establishing an "injury by accident" requires, even though an injury makes its appearance suddenly at a particular time and upon a particular occasion, that the claimant prove that the cause of the injury was an identifiable incident or sudden precipitating event and that it resulted in an obvious sudden mechanical or structural change in the body. 6."
"To establish an "injury by accident," a claimant must prove (1) that the injury appeared suddenly at a particular time and place and upon a particular occasion, (2) that it was caused by an identifiable incident or sudden precipitating event, and (3) that it resulted in an obvious mechanical or structural change in the human body. 8."
"In the present case the claimant established an "injury by accident.""
"The employer's arguments that a four-hour exposure to the cold is not an event bounded by rigid temporal precision, or is a form of repetitive trauma, continuing physical stress, or a cumulative event, are rejected. 14."
Kjellstrom Lee, Inc. v. Saunders, 42 Va. App. 673 (Va. Ct. App. 2004)
This case directly addresses the definition of "injury by accident" in the context of Virginia workers compensation law. It sets out the standard for determining whether an injury arises out of the conditions of employment.
"Upon review, the full commission affirmed the deputy's finding. Responding to employer's argument that the evidence did not show exposure to an "extraordinary environmental condition," the opinion stated: [T]he evidence showed that the claimant's work environment was distinguishable from other employees who are required to work outside."
"We agree with the deputy commissioner that the claimant suffered an injury by accident arising out of and in the course of his employment."
"To recover benefits, the claimant must establish by a preponderance of the evidence that [she] suffered an injury by accident "arising out of and in the course of [her] employment," Code § 65.2-101, and "that the conditions of the workplace . . . caused the injury.""
"See United Parcel Serv. of Am. v. Fetterman, 230 Va. 257, 258, 336 S.E.2d 892, 893 (1985) ("An accident arises out of the employment when there is a causal connection between the claimant's injury and the conditions under which the employer requires the work to be performed.")."
Alexandria City Pub. Sch. v. Handel, 70 Va. App. 349 (Va. Ct. App. 2019)
This case directly addresses the definition of "injury by accident" in the context of Virginia Workers Compensation cases. Specifically, it discusses the requirement of a "sudden mechanical or structural change" in the body.
"Employer contends that claimant must demonstrate a sudden mechanical or structural change to each part of the body in which the claimant is experiencing pain for the injury to be compensable under the Workers' Compensation Act. This Court affirms the Commission because claimant must only prove her accident caused one sudden mechanical or structural change to her body to collect compensation for any injury caused by that accident."
"Under Virginia law, an injury is compensable under the Workers' Compensation Act when the injury was the result of an accident, which the claimant must establish by proving "(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 bodily change." Hoffman v. Carter, 50 Va. App. 199, 212, 648 S.E.2d 318 (2007)."
"Once an injury by accident is established, any injury causally connected to the accident—even if not connected to the sudden mechanical or structural change—is compensable."
Jackson v. Ceres Marine Terminals, Inc., 64 Va. App. 459 (Va. Ct. App. 2015)
This case directly addresses what constitutes an "injury by accident" in the context of Virginia worker's compensation law specifically discusses purely psychological injuries' compensability.
"Based upon those facts, the deputy commissioner found that there was no compensableinjury by accident. He reviewed the applicable case law and determined that “[t]he common thread through these cases indicates that if a claimant has suffered a purely psychological injury and disability as a result of a sudden shock or fright, the circumstances surrounding the injury must place the claimant in imminent physical danger. ” (Emphasis added)."
"These cases routinely hold that to qualify as a compensable injury, a purely psychological injury, such as PTSD, must be causally related to a physical injury or to an obvious sudden shock or fright arising in the course of employment. See UPS v. Prince, 63 Va.App. 702, 708, 762 S.E.2d 800, 803 (2014) ; Anthony, 36 Va.App. at 103, 548 S.E.2d at 276 ; Owens v. Va. Dep't of Transp., 30 Va.App. 85, 88, 515 S.E.2d 348, 349 (1999) ; Hercules, Inc. v. Gunther, 13 Va.App. 357, 362, 412 S.E.2d 185, 188 (1991) ; Chesterfield Cnty. v. Dunn, 9 Va.App. 475, 477, 389 S.E.2d 180, 182 (1990)."
"Although a risk of harm to a claimant may be a factor in cases where the compensability of psychological injuries is evaluated, our Court has never held that this factor is a
requirement, and we decline to do so now."
Fam. Dollar St. v. Presgraves, Record No. 0814-10-4 (Va. Ct. App. Dec. 21, 2010)
This case discusses the definition of "injury by accident" under Virginia's Workers' Compensation Act. It sets out the four elements that a claimant must prove to establish an "injury by accident."
""In order to recover benefits for an injury under the Workers' Compensation Act, the employee must have suffered an 'injury by accident arising out of and in the course of the employment.'"Goodyear Tire Rubber Co. v. Harris, 35 Va. App. 162, 167, 543 S.E.2d 619, 621 (2001) (quoting Code § 65.2-101)."
"An "injury by accident" is defined as an "identifiable incident or sudden precipitating event [that results] in an obvious sudden mechanical or structural change in the body.""
"Thus, in order to establish an "injury by accident," the 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.'" Ogden Aviation Services v. Saghy, 32 Va. App. 89, 94, 526 S.E.2d 756, 758 (2000) (quotingDunn, 9 Va. App at 475, 389 S.E.2d at 181)."
"Id. at 589, 385 S.E.2d at 864."
Ogden Aviation Services v. Saghy, 526 S.E.2d 756 (Va. Ct. App. 2000)
This case discusses the definition of "injury by accident" under Virginia's Workers Compensation Act. Specifically, it addresses whether carpal tunnel syndrome can qualify as an "injury by accident" depending on how it develops.
"Claimant proceeded on the basis of an "injury by accident" under Code § 65.2-101."
"The commission made it clear "the puncture wound did not cause claimant's carpal tunnel syndrome, . . . the puncture wound is separate from the carpal tunnel syndrome" and "the weight of the evidence establishes that the claimant experienced right arm and hand symptoms immediately after the precipitating event.""
"Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989) (citation omitted); see Chesterfield Co. v. Dunn, 9 Va. App. 475, 476, 389 S.E.2d 180, 181 (1990). An "injury by accident" requires proof of "(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.""
"While a majority of the cases have addressed carpal tunnel syndrome as either a repetitive injury or an occupational disease, none have considered whether the condition may be the result of one single act or identifiable incident."
Vepco v. Cogbill, 223 Va. 354 (Va. 1982)
This case reaffirms the rule that an "injury by accident" requires "an obvious sudden mechanical or structural change in the body" and must arise from "an identified incident."
"After examining prior case law, we reaffirmed the rule set forth in Virginia Electric, Etc., Co. v. Quann, 197 Va. 9, 12, 87 S.E.2d 624, 626 (1955), which requires "an obvious sudden mechanical or structural change in the body" for accidents resulting from ordinary exertion to be compensable. We also noted that the claimant must prove that the injury by accident arose "from an identified incident that occurs at some reasonably definite time." Badische Corp. v. Starks, 221 Va. at 912, 275 S.E.2d at 606. Starks' normal activities caused her injuries, but those injuries did not produce a sudden, obvious physical change. We denied recovery because Starks merely had a worsening, but preexisting, condition which she could not attribute to any identifiable incident."
Badische Corp. v. Starks, 221 Va. 910 (Va. 1981)
This case discusses several examples of what the court has considered an "injury by accident" in the context of workers' compensation claims in Virginia and cites multiple cases that support this analysis.
"Hosey is consistent with the established principle that an injury by accident arises from an identified incident that occurs at some reasonably definite time. See Aistrop v. Blue Diamond Coal Co., 181 Va. 287, 293-94, 24 S.E.2d 546, 548-49 (1943). Thus, in Big Jack Overall Co. v. Bray, 161 Va. 446, 171 S.E. 686 (1933), an injury by accident arose when a woman attempting to lift a bundle of clothes while her body was in an awkward position felt a sudden snap or tear in her back and immediately experienced severe pain. In Commonwealth v. Hughes, 161 Va. 714, 172 S.E. 155 (1934), controlled by Bray, we upheld an award of compensation where abdominal injury resulted from a fall from a truck which suddenly jerked forward while the claimant was working on it. In Derby v. Swift Co., 188 Va. 336, 49 S.E.2d 417 (1948), while lifting a loading table, the claimant experienced a sharp pain in his side, later diagnosed as caused by a hernia. The Commission denied recovery on the ground that there had been no compensable accident. We reversed, holding that, although the claimant was performing his usual work, he suffered a sudden, unusual, unexpected, and painful abdominal rupture that constituted an accident. And, in Virginia Electric Etc., Co. v. Quann, 197 Va. 9, 87 S.E.2d 624 (1955), a claimant injured his back while lifting a heavy coil of wire that suddenly shifted and put an unanticipated strain upon him. He "felt something pop or make a definite snap" in his back. 197 Va. at 10, 87 S.E.2d at 625. We upheld an award of compensation for accidental injury."
Boyer v. Sundown Express, Inc., Record No. 0906-00-3 (Va. Ct. App. Dec. 5, 2000)
"Under the Workers' Compensation Act (the "Act"), Code §§ 65.2-100 to -1310, "a claimant must prove by a preponderance of the evidence either an 'injury by accident' or an 'occupational disease.'" A New Leaf, Inc. v. Webb, 257 Va. 190, 195, 511 S.E.2d 102, 104 (1999) (citations omitted). The term "injury by accident" is defined as an "identifiable incident or sudden precipitating event [that results] in an obvious sudden mechanical or structural change in the body.""
"Claimant, to receive compensation for his injury, had to prove he suffered an "injury by accident." To do so, he had to establish that there was an "identifiable incident" or "sudden precipitating event" whereby he suffered a mechanical or structural change in his body."
Carpet Palace, Inc. v. Salehi, 494 S.E.2d 870 (Va. Ct. App. 1998)
"We agree. A worker may receive benefits related to an "injury by accident arising out of and in the course of the employment." Code § 65.2-101. However, "[a]n injury by accident must be unexpected to be compensable." Dollar Gen. Store v. Cridlin, 22 Va. App. 171, 178, 468 S.E.2d 152, 155 (1996) (shoulder injury was not expected result of deviation from restriction related to breast cancer surgery)."
Dollar General Store v. Cridlin, 22 Va. App. 171 (Va. Ct. App. 1996)
"Claimant's condition was diagnosed by medical personnel at the hospital as an "overuse injury/bursitis right shoulder" and by her physician as a "trapezius strain" and "tendinitis of the right shoulder." "Injury by accident" is defined, within the context of the Workers' Compensation Act, as "an identifiable incident or sudden precipitating event [that results] in an obvious sudden mechanical or structural change in the body." Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989). By contrast, a gradually incurred injury is not an injury by accident within the meaning of the Act. Middlekauff v. Allstate Ins. Co., 247 Va. 150, 154, 439 S.E.2d 394, 397 (1994). Though an injury by accident must be "bounded with rigid temporal precision,' . . . [a]n injury need not occur within a specific number of seconds or minutes . . . but instead, must occur within areasonably definite time.'" Richard E. Brown, Inc. v. Caporaletti, 12 Va. App. 242, 243-44, 402 S.E.2d 709, 710 (1991) (quoting Morris, 238 Va. at 589, 385 S.E.2d at 864)."
Dollar Tree Stores, Inc. v. Wilson, 64 Va. App. 103 (Va. Ct. App. 2014)
"“Whether an injury arises out of … employment involves a mixed question of law and fact, which we review de novo on appeal.” Blaustein v. Mitre Corp., 36 Va.App. 344, 348, 550 S.E.2d 336, 338 (2001) (citing Norfolk Community Hosp. v. Smith, 33 Va.App. 1, 4, 531 S.E.2d 576, 578 (2000) ); see also Dublin Garment Co. v. Jones, 2 Va.App. 165, 167, 342 S.E.2d 638, 638 (1986). On review to this Court, “ ‘[d]ecisions of the commission as
to questions of fact, if supported by credible evidence, are conclusive and binding on this Court.' ” VFP, Inc. v. Shepherd, 39 Va.App. 289, 292, 572 S.E.2d 510, 511 (2002) (quoting WLR Foods v. Cardosa, 26 Va.App. 220, 230, 494 S.E.2d 147, 152 (1997) ). Under Virginia's workers' compensation statutes, “ ‘injury' means only injury by accident arising out of and in the course of the employment.” Code § 65.2–101."
City of Charlottesville v. Sclafani, Record No. 1815-19-2 (Va. Ct. App. May. 5, 2020)
"The Virginia Workers' Compensation Commission ("the Commission") awarded benefits to William Sclafani ("claimant") for a workplace injury. On appeal, this Court reversed the Commission's decision that claimant's injury met the burden of establishing temporal precision and remanded to the Commission for additional fact-finding on that issue."
"To prove such an injury, "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.'" Dugger, 68 Va. App. at 38. An identifiable incident is "inevitably 'bounded with rigid temporal precision'"—that is, it necessarily "'occurs at [some] reasonably definite time.'" Van Buren v. Augusta Cty., 66 Va."
Estate of Arroyo v. Ramirez, Record No. 1282-14-1 (Va. Ct. App. Feb. 3, 2015)
"Under Virginia's workers' compensation statutes, "'injury' means only injury by accident arising out of and in the course of the employment . . . ." Code § 65.2-101. Thus, "[f]or an injury to be compensable under the Workers' Compensation Act, the claimant must prove by a preponderance of the evidence three elements: (1) that the injury was caused by an accident; (2) that the injury was sustained in the course of the employment; and (3) that the injury arose out of the employment." Southland Corp. v. Parson, 1 Va. App. 281, 283-84, 338 S.E.2d 162, 163 (1985). "'The concepts "arising out of" and "in the course of" employment are not synonymous and both conditions must be proved before compensation will be awarded.'" PYA/Monarch & Reliance Ins. Co. v. Harris, 22 Va. App. 215, 221, 468 S.E.2d 688, 689 (1996) (quoting Marketing Profiles v. Hill, 17 Va. App. 431, 433, 437 S.E.2d 727, 729 (1993) (en banc))."
Young Jin Kim v. Roto Rooter Servs. Co., Record No. 1053-16-4 (Va. Ct. App. Mar. 7, 2017)
"The General Assembly has not made any changes despite such invitations. See id. at 586, 385 S.E.2d at 863. An "injury by accident," thus, continues to be regarded as one that must occur at a particular time, in a particular place, and by an identifiable accident. See id. at 585-86, 385 S.E.2d at 862-63 (quoting Aistrop v. Blue Diamond Coal Co., 181 Va. 287, 293, 24 S.E.2d 546, 548 (1943))."
Smith v. McMillan Personnel Service, Inc., 629 S.E.2d 707 (Va. Ct. App. 2006)
"The Workers' Compensation Commission found that Jennifer R. Smith suffered an injury by accident while she was a special employee of Pittman's Tree Landscaping, Inc., but her claim was barred by the statute of limitations."
"Two months after the accident, McMillan filed with the commission a first report of accident identifying McMillan as the employer."
"In cases arising under the Act, however, Virginia follows the "`well established principle of the common law which holds that an employee who is lent to a special employer as distinguished from his general employer, and who assents to the change of employment, becomes the servant of the employer to whom he is lent. . . .'" Ideal Steam Laundry v. Williams, 153 Va. 176, 181-82, 149 S.E. 479, 481 (1929) (citation omitted)."
Butler v. Southern States Coop., Inc., 270 Va. 459 (Va. 2005)
"In this appeal, the dispositive issue is whether the Circuit Court of Loudoun County (trial court) erred in sustaining special pleas in bar to a motion for judgment filed by an employee against her co-employee and employer on the ground that the assault for which damages were sought was an injury by accident that arose out of and in the course of the employment. Based on the facts as alleged in the motion for judgment, the trial court ruled that the employee's common-law action is barred by the exclusivity provision of the Workers' Compensation Act provided by Code § 65.2-307, and that the exceptions to that exclusivity provision provided by Code § 65.2-301 do not apply."
"The Virginia Workers' Compensation Act applies to injuries by accident "arising out of and in the course of" an individual's employment. Code § 65.2-300. When an employee sustains such an injury, the Act provides the sole and exclusive remedy available against the employer."
"County of Chesterfield v. Johnson, 237 Va. 180, 185, 376 S.E.2d 73, 75-76 (1989)."
Owens v. Virginia Department of Transportation/Commonwealth, 515 S.E.2d 348 (Va. Ct. App. 1999)
"The commission held that Owens failed to prove by a preponderance of the evidence that the startling sound gave rise to a compensable psychological injury by accident."
"To qualify as a compensable injury by accident, a purely psychological injury must be causally related to a physical injury or to a sudden shock or fright arising in the course of employment. See Chesterfield County Fire Dep't v. Dunn, 9 Va. App. 475, 477, 389 S.E.2d 180, 182 (1990) (citing Burlington Mills Corp. v. Hagood, 177 Va. 204, 209-11, 13 S.E.2d 291, 293-94 (1941)). The commission determined that because the sound of the falling utility cover was neither out of the ordinary for Owens's routine working
environment nor so dramatic or frightening to shock the conscience, the sound did not qualify as the type of sudden shock or fright from which a compensable injury may arise."
"However, because the aggravation was not causally related to (1) a physical injury or (2) to an obvious sudden shock or fright in the employment, the commission did not err in finding that Owens's reaction to the sound was not a compensable aggravation of a pre-existing condition."
Lynchburg Gen. Hosp. & Sentry Ins. Co. v. Foster, Record No. 1479-17-3 (Va. Ct. App. Apr. 10, 2018)
"Under Virginia's workers' compensation statutes, "'[I]njury' means only injury by accident arising out of and in the course of the employment." Code § 65.2-101. Thus, "[f]or an injury to be compensable under the Workers' Compensation Act, the claimant must prove by a preponderance of the evidence three elements: (1) that the injury was caused by an accident; (2) that the injury was sustained in the course of the employment; and (3) that the injury arose out of the employment." Dollar Tree Stores, Inc. v. Wilson, 64 Va. App. 103, 108, 765 S.E.2d 151, 153 (2014) (quoting Southland Corp. v. Parson, 1 Va. App. 281, 283-84, 338 S.E.2d 162, 163 (1985))."
"Under this test, an injury is considered to have arisen out of the employment "if how the employer requires the work to be performed is causally related to the resulting injury.""
"The general rule is that "[t]he causative danger must be peculiar to the work and not common to the neighborhood.""
""The mere happening of an accident at the workplace, not caused by any work related risk or significant work related exertion, is not compensable.""
Modern Renovations, LLC v. Espino, No. 0466-22-4 (Va. Ct. App. Oct. 25, 2022)
"Present: Judges O'Brien, Lorish and Senior Judge Annunziata MEMORANDUM OPINION [*] LISA M. LORISH JUDGE Dionel Espino fell from a ladder and injured his foot. He sought recovery under the Workers' Compensation Act from his employer, Gerardo Reyes, who was a subcontractor of Alpha y Omega Services, LLC ("Alpha"), a subcontractor of Modern Renovations, LLC."
"The Commission found that Espino had an employer/employee relationship with Reyes and that Espino suffered an injury which arose from and during his employment for Reyes. The Commission further found that Reyes was a subcontractor to Alpha, and that as such, Alpha was the claimant's statutory employer at the time of the claim."
Goodyear Tire Rubber Co. v. Harris, 35 Va. App. 162 (Va. Ct. App. 2001)
"In order to recover benefits for an injury under the Workers' Compensation Act, the employee must have suffered an "injury by accident arising out of and in the course of the employment." Code § 65.2-101. Whether an employee has suffered an "injury by accident" is a mixed question of law and fact. R R Constr. Corp. v. Hill, 25 Va. App. 376, 378-79, 488 S.E.2d 663, 664 (1997). Findings of fact by the Workers' Compensation Commission will be upheld on appeal if supported by credible evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). However, whether those facts prove the claimant suffered an "injury by accident" is a question of law. See Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970). The commission's finding on the legal question is not conclusive and binding upon us, but is properly subject to judicial review. See Hill, 25 Va. App. at 378-79, 488 S.E.2d at 664."
County of Chesterfield v. Johnson, 237 Va. 180 (Va. 1989)
"An accident arises out of the employment when there is a causal connection between the claimant's injury and the conditions under which the employer requires the work to be performed. The test excludes an injury which comes from a hazard to which the employee would have been equally exposed apart from the employment. 4."
"We said further that the arising out of test excludes "an injury which comes from a hazard to which the employee would have been equally exposed apart from the employment. The causative danger must be peculiar to the work, incidental to the character of the business, and not independent of the master-servant relationship.""
"See Olsten v. Leftwich, 230 Va. 317, 336 S.E.2d 893 (1985)."
Bernard v. Carlson Companies–Tgif, 60 Va. App. 400 (Va. Ct. App. 2012)
"Observation of the guard towers was one of the security functions of his employment. The way in which he performed this aspect of his job increased his risk of falling on this occasion and directly contributed to cause his fall and injury. Cf. Fetterman, 230 Va. at 259, 336 S.E.2d at 893. He would not have been equally exposed to the risk apart from his duty to observe the guard towers and provide security at the facility. Cf. Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938). Henderson's injury occurred because of the performance of his job duties in a particular manner. Therefore, the cause of the injury was not “unrelated to any hazard common to the workplace.” Fetterman, 230 Va. at 259, 336 S.E.2d at 893. Henderson, 20 Va.App. at 481, 458 S.E.2d at 303.A workplace condition that “increase[s] the risk of injury” implicates the actual risk test. Hill City Trucking, 238 Va. at 739–40, 385 S.E.2d at 379–80;see also Simms, 281 Va. at 119–23, 704 S.E.2d at 361–63 (recognizing that the danger be “peculiar to the work and not common to the neighborhood” affirmed award based on then-Judge Cardozo's observation that “young men and boys” create an enhanced risk of horseplay, a condition “inseparable from factory life” (citation omitted)); R & T Invs., 228 Va. at 253, 321 S.E.2d at 289 (noting the “probability” of harm may be “augmented” by the “peculiar” risks of the job
(citation omitted)); Lucas v. Fed. Express Corp., 41 Va.App. 130, 135, 583 S.E.2d 56, 59 (2003) (focusing on the “special or peculiar” risks of the workplace); Roberson v. Whetsell, 21 Va.App. 268, 271 n. 1, 463 S.E.2d 681, 683 n. 1 (1995) (noting the employee's risk “was heightened” by the conditions of his employment); Southland Corp. v. Parson, 1 Va.App. 281, 287, 338 S.E.2d 162, 165 (1985) (finding “elevated height constituted an ‘added risk' of the employment”)."
Marion Correctional Center v. Henderson, 20 Va. App. 477 (Va. Ct. App. 1995)
"An injury, to be compensable under the Workers' Compensation Act, must "arise out of" and be "in the course of" employment. Code Sec. 65.2-101."
""Arising out of" refers to the origin or cause of the injury."
"An injury arises out of the employment if there is apparent to the rational mind a causal connection between the conditions under which the work is required to be performed and the resulting injury."
"An injury does not arise out of one's employment if it is caused by "a hazard to which the employee would have been equally exposed apart from the employment.""
"However, if an injury "has followed as a natural incident of the work and has been a result of an exposure occasioned by the nature of the employment," then the injury "arises out of" the employment."
Hill City Trucking v. Christian, 238 Va. 735 (Va. 1989)
"Compensation is provided for injuries which: (1) are caused by accident; (2) arise out of the employment; and (3) occur in the course of employment. Southern Motor Lines v. Alvis, 200 Va. 168, 170, 104 S.E.2d 735, 737 (1958). Christian satisfied the first requirement because injuries resulting from an intentional assault are deemed accidental when, as here, the injury is unusual and not expected."
Simms v. Ruby Tuesday, Inc., 281 Va. 114 (Va. 2011)
"Analysis An injury comes within the scope of the Act if it results from an accident arising out of and in the course of the injured employee's employment. Code § 65.2-101; see Hilton, 275 Va. at 180, 654 S.E.2d at 574. ""
"As we reiterated in Hilton, this Court applies " the ‘ actual risk' test" to determine if an injury arises out of employment. 275 Va. at 180, 654 S.E.2d at 574. Under the actual risk test, an injury comes within the Act " only if there is a causal connection between the employee's injury and the conditions under which the employer requires the work to be done.""
Richmond Newspapers v. Hazelwood, 249 Va. 369 (Va. 1995)
"The trial court denied a motion to set the verdict aside on the ground that the employee's exclusive remedy was under the Workers' Compensation Act, holding that the injury arose out of and in the course of the employment but was not an injury by accident within the meaning of the Act and, therefore, that the claim was not barred by the exclusivity provision of the Act."
"An injury is subject to the exclusivity provision of the Act if it is the result of an accident and arises out of and in the course of the employment. 2."
"In determining whether an injury arises out of employment, the actual risk test is applied to determine if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of exposure occasioned by the nature of the employment. 4. The test excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the worker would have been equally exposed apart from the employment."
"The undisputed evidence here shows clearly that the goosing in the press-room was of a personal nature and not directed against the recipients as employees or in furtherance of the employer's business and, hence, the employee's injury, suffered as a result of the goosing, did not arise out of his employment."
Pang v. Air Wis. Airlines, Record No. 1877-18-1 (Va. Ct. App. Sep. 24, 2019)
"Essentially, the issue is one of claimant's credibility, as the rulings of both the deputy commissioner and the Commission were premised on a credibility determination."
"Goodyear Tire & Rubber Co. v. Harris, 35 Va. App. 162, 171 (2001) (quoting Southern
Express v. Green, 257 Va. 181, 187 (1999))."
"Claimant's argument rests entirely on her testimony, which both the deputy commissioner and the Commission found unworthy of belief in concluding that no incident occurred."
Food Lion, LLC v. Toehlke, Record No. 1507-19-1 (Va. Ct. App. Apr. 14, 2020)
"In an opinion issued on September 17, 2018, Deputy Commissioner Wilder denied the remaining claims, finding she had not proved she sustained a compensable injury by accident or that she provided timely notice of her injury. The deputy commissioner based this finding on the lack of documentation mentioning the incident in any of claimant's medical records prior to March 9, 2015, and the lack of evidence that employer was made aware of the incident within a reasonable time."
"Alexandria City Pub. Sch. v. Handel, 70 Va. App. 349, 354-55 (2019) (quoting Hoffman, 50 Va. App. at 212). "The commission's determination of whether a claimant suffered 'an "injury by accident" presents a mixed question of law and fact, because it involves both factual findings and the application of law to those facts."
"Handel, 70 Va. App. at 354 (quoting Wagner Enters., 12 Va. App. at 894)."
Johnson v. Gen. Dynamics Corp., No. 0645-21-3 (Va. Ct. App. Mar. 8, 2022)
"To recover benefits under the Act, a claimant must prove, "by a preponderance of the evidence, (1) an '"injury by accident" or occupational disease, (2) arising out of, and (3) in the course of, the employment.'" City of Charlottesville v. Sclafani, 300 Va. 212, 221 (2021) (quoting Morris v. Morris, 238 Va. 578, 584 (1989)); Code § 65.2-101."
"To prove "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." Hoffman, 50 Va.App. at 212 (quoting Chesterfield Cnty./Fire Dep't v. Dunn, 9 Va.App. 475, 476 (1990))."
"Morris, 238 Va. at 586 (emphasis added) (quoting Aistrop v. Blue Diamond Coal Co., 181
Va. 287, 293 (1943))."
"Therefore, "injuries resulting from repetitive trauma, continuing mental or physical stress, or other cumulative events, as well as injuries sustained at an unknown time, are not 'injuries by accident.'" Id.; Hoffman, 50 Va.App. at 213 (noting a gradually incurred injury is not an "injury by accident" under the Act)."
Strom v. Transdev Servs., No. 0095-22-4 (Va. Ct. App. Jan. 24, 2023)
"Following a hearing, the deputy commissioner found that Strom failed to prove he had suffered a compensable injury by accident. The deputy commissioner was persuaded by Dr. Senisi's October 2, 2020 note that Strom "had been 'struggling with [lumbar radiculopathy] for years.'" Moreover, the deputy commissioner concluded that Strom's post-accident medical providers were unaware of his history of neck and back problems following his April 2019 motor vehicle accident because they did not note them in his history."
"On review, the Commission affirmed the deputy commissioner and found that Strom failed to prove he had suffered a compensable injury in the October 16, 2020 accident. Although it agreed that the video evidence established Strom was involved in a motor vehicle accident while driving the bus, it concluded he "suffered [no] bodily change as a result of the accident.""
"Based on its finding that Strom did not provide accurate information to his health care providers, the Commission rejected their opinions that his injuries resulted from the October 16, 2020 accident."
Va. Alcoholic Beverage Control Auth. v. Blot, No. 1395-21-2 (Va. Ct. App. Sep. 6, 2022)
"The Commonwealth argues that the Commission erred in awarding Blot temporary partial disability benefits "because no evidence causally related . . . Blot's wage loss to the work accident.""
"BACKGROUND "On appeal from a decision of the Workers' Compensation Commission, the evidence and all reasonable inferences that may be drawn from that evidence are viewed in the light most favorable to the party prevailing below.""
"The deputy commissioner found that Blot had suffered an injury by accident on December 15, 2019, and awarded him lifetime medical benefits. The deputy commissioner denied Blot's request for temporary total disability benefits between March 20, 2020, and February 10, 2021, finding that he stopped working due to the COVID-19 pandemic, not his compensable injury."
Blue v. Michels Corp., No. 1236-21-4 (Va. Ct. App. May. 31, 2022)
"At the hearing, employer argued that claimant did not suffer a compensable injury by accident and there was no causal connection between claimant's disability and the work accident."
"The deputy commissioner emphasized that claimant continued to work after the accident and did not seek medical attention until days later."
"Claimant also argued that the deputy commissioner "failed to weigh [claimant's] credibility and whether that testimony can 'fill in the gaps' of the medical records." The Commission affirmed the deputy commissioner's findings, because the "presented evidence simply did not establish that any of the claimant's conditions resulted from the occupational accident.""
""Consequently, on appeal, 'we do not retry the facts before the Commission nor do we review the weight, preponderance of the evidence, or the credibility of witnesses.'" Jeffreys v. Uninsured Employer's Fund, 297 Va. 82, 87 (2019) (quoting Caskey v. Dan River Mills, Inc., 225 Va. 405, 411 (1983))."
"Hoffman v. Carter, 50 Va.App. 199, 214 (2007)."
AMP, Inc. v. Ruebush, 10 Va. App. 270 (Va. Ct. App. 1990)
"(5-6) This case involves an injury by accident as opposed to an occupational disease. Unlike claims based on injury by accident, claims arising from an occupational disease may be pursued more than once when based on different medical evidence establishing the disease. See Cook v. Clinchfield Coal Co., 215 Va. 599, 212 S.E.2d 263 (1975); Childress v. Beatrice Pocahontas Co., 6 Va. App. 88, 366 S.E.2d 722 (1988); Parris v. Appalachian Power Co., 2 Va. App. 219, 343 S.E.2d 455 (1986). An injury by accident differs from an occupational disease, which may be latent or progressive and might not manifest itself until several years after exposure to the causative hazard. Childress, 6 Va. App. at 92 n. 3, 366 S.E.2d at 724 n.3. The issue of causation in cases involving an industrial accident, however, is not an issue subject to change and should, therefore, ordinarily be barred from relitigation by the doctrine of res judicata once a final judgment has been entered.(1-2) AMP argues that a "change in condition" under Code Sec. 65.1-8 does not allow the commission unlimited discretion to readjudicate its decisions and asserts that the holding in Mace v. Merchants Delivery Moving Storage, 221 Va. 401, 270 S.E.2d 717 (1980), is not applicable to the present case. We agree. The Supreme Court held in Mace that "a change in an attending physician's opinion concerning an employee's ability to resume work meets the criteria detailed in Code Sec. 65.1-8." Id. at 405, 270 S.E.2d at 719-20 (emphasis added). It is clear that a "change in condition' includes thecapacity to work.'" Central Virginia Training Center v. Martin, 2 Va. App. 188, 192, 342 S.E.2d 652, 654 (1986). However, the ability or capacity to work is a different matter than the issue of causation. In Mace, the employer was applying for a termination of benefits based on a change of condition due to a change in the attending physician's opinion concerning the employee's ability to resume unrestricted work. Causation was not an issue. Here, Ruebush sought reinstatement of benefits, and her application based on a change in condition necessarily
placed in issue both incapacity and causation. See id. at 192, 342 S.E.2d at 654. The difference between an employer's application for termination of benefits based on a change of condition and an employee's application for reinstatement of disability benefits was explained in King's Market v. Porter, 227 Va. 478, 317 S.E.2d 146 (1984). In the former, as in Mace, the only question is whether the employee's prior condition of work incapacity has changed; the question of causal connection is not an issue. On the other hand, when an employee files an application for reinstatement of disability benefits, two questions arise: (1) has there been a change in the employee's capacity to work; (2) if so, is the change due to a condition causally connected with the injury originally compensated."
Kavanaugh v. Va. Birth-Related Neurological Injury Comp. Program, 728 S.E.2d 527 (Va. Ct. App. 2012)
"In this case, the Virginia Workers' Compensation Commission enforced a reimbursement guideline issued by the Virginia Birth–Related Neurological Injury Compensation Program and denied a request by the claimants for reimbursement of covered expenses. We reverse, finding the Program's guideline cannot be justified under the Virginia Birth–Related Neurological Injury Compensation Act, Code § 38.2–5000 et seq."
"Thereafter, Code § 38.2–5008(A)(4) “directs the commission to determine the amount of any ‘compensation' awardable under Code § 38.2–5009.” Spicer v. Birth Related Neuro. Injury Comp."
"Applying this standard of review, we hold the Program exceeded its authority by issuing the reimbursement deadlines."
American Foods v. Ford, 272 S.E.2d 187 (Va. 1980)
"The Industrial Commission entered an award in favor of the dependent mother. on appeal, the employer and its carrier challenge the jurisdiction of the Commission to adjudicate the claim. 1. When a marine industrial accident is "maritime but local", thus falling within the "twilight zone" of concurrent jurisdiction between state and federal compensation laws, jurisdiction must be determined case by case and depends on the particular facts and circumstances. 2."
"In this case we decide that the Industrial Commission of Virginia did not err in assuming jurisdiction over a workmen's compensation claim that arose out of an accident which occurred in Virginia upon navigable waters. George Ford was a welder employed by the Eastern Marine Builders Supply Company, a division of American Original Foods, Inc."
"The employee in Davis was a structural steelworker who was killed on a barge which was engaged in dismantling an abandoned drawbridge which spanned a navigable river."
"A. Except for hearing or vision loss that has not reached a compensable level of disability, if an employee has a permanent disability or has sustained a permanent injury in service in the armed forces of the United States or in another employment other than that in which he receives a subsequent permanent injury by accident, such as specified in § 65.2-503, he shall be entitled to compensation only for the degree of incapacity which would have resulted from the later accident if the earlier disability or injury had not existed.B. Except for hearing or vision loss that has not reached a compensable level of disability, if an employee has a permanent disability or has sustained a permanent injury in service to his employer and receives a subsequent permanent injury by accident, such as specified in § 65.2-503, he shall be entitled to compensation only for the degree of incapacity which would have resulted from the later accident if the earlier disability or injury had not existed."
Section 65.2-101 - Definitions, Va. Code § 65.2-101
""Injury" means only injury by accident arising out of and in the course of the employment or occupational disease as defined in Chapter 4 (§ 65.2-400 et seq.) and does not include a disease in any form, except when it results naturally and unavoidably from either of the foregoing causes. Such term shall not include any injury, disease or condition resulting from an employee's voluntary: 1. Participation in employer-sponsored off-duty recreational activities which are not part of the employee's duties; or 2. Use of a motor vehicle that was provided to the employee by a motor vehicle dealer as defined by § 46.2-1500 and bears a dealer's license plate as defined by § 46.2-1550 for (i) commuting to or from work or (ii) any other nonwork activity."
"Resulting from (a) the administration of vaccinia (smallpox) vaccine, Cidofivir and derivatives thereof, or Vaccinia Immune Globulin as part of federally initiated smallpox countermeasures, or (b) transmission of vaccinia in the course of employment from an employee participating in such countermeasures to a coemployee of the same employer."
"A. When the employer and employee are subject to the provisions of this title, first communication of the diagnosis of an occupational disease to the employee or death of the employee resulting from an occupational disease as herein listed and defined shall be treated as the happening of an injury by accident, and the employee or in case of his death his dependents shall be entitled to compensation as provided by this title.B. An employee who has an occupational disease that is covered by this title shall be entitled to the same hospital, medical and miscellaneous benefits as an employee who has a compensable injury
by accident, except that the period during which the employer shall be required to furnish medical attention, including reasonably necessary diagnostic services, shall begin fifteen days prior to the date of first communication of the diagnosis of the occupational disease to the employee."