Court: Injury Sustained In 45 Minutes Isn’t Result Of Repetitive Trauma

Court: Injury Sustained in 45 Minutes Isn’t Result of Repetitive Trauma

By Emily Brill | State: Virginia | Topic: Top | Tuesday, July 26, 2016

A Virginia appellate court found that a firefighter who hurt his back while lifting a 400-pound man suffered a compensable injury because of an accident, and not a repetitive trauma injury, which would not be compensable under the state’s workers’ compensation law.

Defendants in Van Buren v. Augusta County claimed that Robert Van Buren’s injury did not pass the four-part accident test, which defines an accident as “an identifiable incident that occurs at some reasonably definite time, causing a sudden change in the body that can be linked to the incident.”

Defendants argued it was not clear when Van Buren herniated adisc during the roughly 40 minutes he struggled to transport an overweight man from the shower to a stretcher to an ambulance.

Virginia’s Workers’ Compensation Commission agreed, citingMorris v. Morrisas precedent. It denied Van Buren’s benefits on the basis that he “could not identify a specific event which caused his injury, or, for that matter, whether his injury was even caused by a specific event as opposed to the cumulative effect of the actions he performed during those 40 minutes.”

The Court of Appeals reversed the decision indisagreementthat Morris v. Morris should control the outcome of the case. Unlike the claimants in Morris, Van Buren was not engaged in repetitive activity, and his injury arose from a time period short enough to constitute an identifiable incident, the court said.

“The issue is: Does an identifiable incident mean something within the span of seconds, or longer? Now, the Court of Appeals of Virginia, in a published opinion, has said that an identifiable incident can be as long as 45 minutes,” said Van Buren’s attorney, Bradford Young.

Young pointed toSouthern Express v. Green, a 1999 Virginia Supreme Court case cited in Van Buren v. Augusta County, as more appropriate precedent than Morris. In that case, a woman received benefits for chilblains, an exposure injury she sustained while working in a walk-in freezer for four hours.

Her employer appealed, saying the injury was the result of repetitive trauma. Virginia is one of the few states in the country that does not cover repetitive trauma claims, University of Virginia law professor J.H. “Rip” Verkerke said.

The Supreme Court upheld the worker’s benefits on the grounds that she sustained the injury while completing a single piece of work.

Her injury “resulted from a single exposure to cold temperature on a definite occasion during the performance of a specific piece of work, i.e., an identifiable incident. It was not caused by repeated exposures over a period of months or years,” the court wrote in 1999.

Southern Express v. Green was one decision that softened the effect of Morris, a 1989 Virginia Supreme Court decision that was celebrated by defense attorneys in the state, Young said.

Morris v. Morris consolidated three cases involving repetitive motion injuries. The Supreme Court decided that none of the claims passed the accident test.

Virginia has an unusually strict approach to this test, Verkerke said.

“The more restrictive you are with workers’ compensation claims, the more you keep down costs, the more you make it a business-friendly environment for employers,” Verkerke said. “Virginia prides itself on its business-friendly environment.”

Defense attorneys “had a field day” when Morris came out, frequently citing the case as precedent in the years after, Young said. As time went by, though, cases such as Southern Express v. Green, and Hoffman v. Carter, softened the effect of Morris.

Hoffman v. Carter, which the court cited in Van Buren’s case, loosened the requirement that an injury must be “bounded with rigid temporal precision.”

“An injury need not occur within a specific number of seconds or minutes … but instead, must occur within a ‘reasonably definite time,'” the Court of Appeals of Virginia wrote in 2007.

Another case decided since Morris,R&R Construction Corp. v. Hill, established that several actions could constitute one event.

“With these rulings, Virginia has come closer into alignment with the more generous approach to the accident test that is common in other jurisdictions,” Verkerke said.

In Van Buren’s case, the 54-year-old firefighter herniated a disc in July 2014 while lifting a 400-pound man who had fallen in the shower.

The deputy commissioner of Virginia’s workers’ compensation system awarded him temporary total disability, lifetime medical benefits and attorney’s fees last year. A few months later, the full commission reversed and vacated the commissioner’s decision on appeal by Van Buren’s employer.

The employer’s attorney argued that Van Buren failed the accident test because the time period during which he sustained the injury did not constitute an “identifiable incident,” and Van Buren had suffered shoulder pain before the incident. The commission agreed, but the Court of Appeals did not.

Looking to Southern Express v. Green as precedent, the Court of Appeals determined that the 40-minute period during which Van Buren handled the fallen man could be considered a “specific piece of work.”

It also said the shoulder pain argument wasn’t relevant because”all of [Van Buren’s] reports to various health professionals indicated that it was the heavy lifting required of him on July 25, 2014, that caused an actual injury,and that such injury was to his cervical spine, not to his shoulder.”

The attorney for Van Buren’s employerwas out of the office Monday, and email and phone messages were not returned.

Article by: Emily Brill, WorkCompCentral

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