Numerous decisions of the Supreme Court of Virginia have pronounced thatthe Workers' Compensation Act is remedial legislation which is entitled to aliberal interpretation in favor of claimants. In recent years, lawyers forclaimants have wondered whether the courts now view this pronouncement as emptyrhetoric. Occasionally, however, a decision shows that at least some judgesstill "get it." Such is the case with Alexandria City PublicSchools v. Handel, 70 Va. App. 349 (2019).
As we have explained before, under the "actual risk" doctrinethe employment must expose the employee to a heightened risk of the activitythat causes the injury. Given this principle, a claimant's entitlement to anaward often turns on what the claimant was doing at the time of injury. Overthe years, two irreconcilable lines of analysis have arisen in this area.
In Grove v. AlliedSignal, Inc., 15 Va. App. 17 (1992), the Court of Appeals stated asfollows: "That the activity was usual, and did not require exertion,and that the injury was not 'foreseen or expected' are irrelevant."(Emphasis added.)
Notwithstanding Grove, it is common to see the Commission and theCourt of Appeals rely on a pre-Grove opinion to assert as follows:"[A]n injury arises out of the employment when the conditions of theworkplace or a significant work-related exertion cause the injury."Brinkley v. Dyn-Dynatran East, VWC File No. VA02000017345 (Mar. 1, 2017)(emphasis added) (citing Plumb Rite Plumbing Serv. v. Barbour, 8 Va.App. 482 (1989)).
The Court of Appeals'decision in Handel may resolve the impasse described above. A sectionentitled "Usual exertions" includes these statements:
(Emphasis in original.)
Handel could go far in resolving the usual-versus-significant exertionquestion in claimants' favor. However, the defendants in Handel havefiled a petition for appeal with the Supreme Court of Virginia. We will keepreaders apprised of developments.
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