NEWS AND VIEWS ON APPELLATE MATTERS
A few years ago, HammondTownsend represented a firefighter who had assisted other first responders in rescuing a man who had suffered abroken leg due to a fall while showering. The case led to a published decision by the Court of Appeals, namely, Van Buren v. Augusta County, 66 Va.App. 441 (2016).
The Court of Appeals noted that, over a 45-minute period, the claimant and the other rescuers "used a combination of improvisation, brute strength, and equipment" to move the injured man from his bathroom to an ambulance. The claimant discerned pain in his arm immediately after placing the injured man in the ambulance. The treating physician later opined that the claimant had suffered a cervical herniation during the 45-minute rescue.
The fighting issue was whether the claimant had suffered an "injury by accident." In Morris v. Morris, 238 Va. 578 (1989),the Supreme Court described the parameters for such a finding as follows: "Our decisions have always required proof of an 'accident, identifiable incident, or sudden precipitating event.'" In Van Buren, the Court of Appeals found that an identifiable incident had caused the claimant's injury: "We find the entire rescue undertaken by Van Buren was one 'piece of work,' and the entire forty-five-minute period was one event, not numerous discrete events. We find that this event was an 'identifiable incident' . . . ." The Supreme Court rejected the employer's petition for appeal without hearing argument from the employer.
Van Buren remains good law. Indeed, in RiversideRegional Jail Authority v. Dugger, 68 Va. App. 32 (2017), the Court of Appeals both endorsed the result in Van Buren and rejected the employer's contention that it created a "'first responder exception'" contingenton "the influence of an adrenaline rush."
The Court of Appeals' decision in City of Charlottesville v. Sclafani, 70 Va. App. 613 (2019), is a recent decision regarding a Van Buren/Dugger-type claim. The claimant in Sclafani is a police officer, and HammondTownsend represents him. He was injured while playing the role of the "take down man" during a full day of arrest training.The full Commission and the Court of Appeals relied on Van Buren and Dugger to find in his favor. However, in reversing and remanding the case to the Commission, the Court of Appeals' decision in Sclafani sets a four-hour upper limit on Van Buren/Dugger-type claims.
Upon remand, the Commission found that the claimant in Sclafaniwas injured during the four-hour period of training after lunch. The Commission thus reinstated his award. We now await the employer's next move.
It is fair to say that Van Buren and its progeny have caused enduring consternation in the workers' compensation defense bar. Some of them have expressed their confidence that some day the Supreme Court will over turn this "whole line of cases that were wrongly decided." One thing is clear: There are battles ahead, and we at HammondTownsend stand ready for the fight. Stay tuned here for updates.
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