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:

The Supreme Court addressed the question of whether aninjury that was sustained during the performance of ordinary job duties, ratherthan 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 exertionresults in actually breaking, herniating, or letting go with an obvious suddenmechanical or structural change in the body, whether external or internal, theinjury is accidental.” Id. The Court reaffirmed this principle in VirginiaElectric & Power Co. v. Cogbill, 223 Va. 354, 356 (1982) (emphasisadded), when it held that in order for injuries resulting from ordinaryexertion to be compensable as an injury by accident, the claimant mustprove that it resulted in “an obvious sudden mechanical or structural change inthe body.”
             . . . Thepurpose of the test is to allow a claimant to demonstrate that her injuries areaccidental, even in the absence of an obvious accident.

 (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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