Numerous decisions of the Supreme Court of Virginia have pronounced that the Workers’ Compensation Act is remedial legislation that is entitled to a liberal interpretation in favor of claimants. In recent years, lawyers for claimants have wondered whether the courts now view this pronouncement as empty rhetoric. Occasionally, however, a decision shows that at least some judges still “get it.” Such is the case with Alexandria City Public Schools v. Handel, 70 Va. App. 349 (2019).
As we have explained before, under the “actual risk” doctrine the employment must expose the employee to a heightened risk of the activity that causes the injury. Given this principle, a claimant’s entitlement to an award often turns on what the claimant was doing at the time of injury. Over the 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 as follows: “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 the Court of Appeals rely on a pre-Grove opinion to assert as follows:”[A]n injury arises out of the employment when the conditions of the workplace 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 section entitled “Usual exertions” includes these statements:
The Supreme Court addressed the question of whether an injury that was sustained during the performance of ordinary job duties, rather than as a result of an unusual event or exertion, would be compensable as an“injury by accident” in Virginia Electric & Power Co. v. Quann, 197Va. 9, 12 (1955). In Quann, the Court held that “when usual exertion results in actually breaking, herniating, or letting go with an obvious sudden mechanical or structural change in the body, whether external or internal, the injury is accidental.” Id. The Court reaffirmed this principle in Virginia Electric & Power Co. v. Cogbill, 223 Va. 354, 356 (1982) (emphasis added), when it held that in order for injuries resulting from ordinary exertion to be compensable as an injury by accident, the claimant must prove that it resulted in “an obvious sudden mechanical or structural change in the body.”
. . . The purpose of the test is to allow a claimant to demonstrate that her injuries are accidental, even in the absence of an obvious accident.
(Emphasis in original.)
Handel could go far in resolving the usual-versus-significant exertion question in claimants’ favor. However, the defendants in Handel have filed a petition for appeal with the Supreme Court of Virginia.