In my 2 previous posts I discussed the topic of “injury by accident” In this post, I will take a look at a recent case which eases the burden on claimants seeking to prove this key fact.
Claimant in Dugger v. Riverside Regional Jail Authority, JCN: VA00001117636 (Jan. 3, 2017), was a correctional officer, employed by defendant. She suffered a knee injury during a training session on “defensive tactics” in which she participated. The session was apparently like a martial arts class. Claimant testified that she engaged in mock combat with her classmates during which she practiced “take downs.” She was tackled by and tackled her classmates. At the end of this training session, which lasted 4 hours, claimant complained of “discomfort in the right knee” and “instant right knee pain.” The employer denied the claim because claimant could not point to a particular incident which occurred during the 4-hour session as the cause of her injury. Citing Morris v. Morris, 238 Va. 578, 385 S.E.2d 858 (1989), the employer argued that claimant’s identification of a 4-hour period during which she was injured did not show an injury caused by an identifiable accident or sudden precipitating event that resulted in a sudden mechanical or structural change.
The Deputy Commissioner hearing the case disagreed with the employer’s argument, and found that claimant had sufficiently identified an injury by accident. Employer requested review of the opinion by the full Commission. The Commission’s opinion provided additional information on claimant’s activities on the day in question:
Immediately after the physical training, the claimant noticed right knee pain as she walked toward a classroom for a test and discussion. Her right knee pain intensified when she climbed the stairs. She informed the instructor of her problem….” Dugger, supra, Op. p. 3.
The claimant then sought medical attention at Patient First. The medical record for the initial visit noted that claimant felt discomfort in the right knee while doing her defensive tactics training. “Since then knee has swollen with discomfort putting weight on it.” Id. A subsequent note from Patient First stated that claimant described a popping sensation in the knee and felt instant pain. Claimant was eventually referred to an orthopedic surgeon for treatment of a torn meniscus in her right knee.
The Commission discussed the issue of an injury by accident. The employer had cited Morris for the principal that the accident must occur at some reasonably specific time to be compensable, and claimant’s narrowing the timeframe to 4 hours was not sufficient. After reviewing the facts, the Commission disagreed. “None of the concerns articulated in Morris is a reasonable consideration on the present facts.” Dugger, Op. p. 7. There was a finite time which the employer could investigate and the other participants in the training were available as witnesses. Since claimant engaged in different activities during the session, a cumulative injury was unlikely. In summary, the opinion stated that claimant engaged in a variety of training exercises over a discrete period of time. The medical records indicated that her knee sprain was caused by her work. Claimant felt pain as she walked away from her training class and reported it soon thereafter. Her testimony was credible and supported the finding that she sustained an injury caused by a particular work activity at a reasonably definite time. Therefore, she proved an injury by accident and was entitled to compensation.
It remains to be seen how leniently the VWCC will interpret the Morris decision going forward. If a 4-hour period is a sufficiently specific time for purposes of identifying an injury by accident, how much additional time can be added to that period before the Commission says it is too much? I’ll be keeping an eye on this developing area of workers’ comp law and will report back as events warrant.
 The Dugger opinion cited as support for its finding for claimant the Court of Appeals decision in Van Buren v. Augusta County,66 Va. App. 441, 787 S.E.2d 532 (2016). I note with some vicarious pride that Van Buren was a HammondTownsend case, handled at the hearing stage by George Townsend and on appeal by Brad Young.