Change in Virginia Workers’ Compensation “Cumulative Trauma” Law? It’s Unclear.
Virginia workers’ compensation law has long required that claims can only be compensable if they are “injuries by accident.” There are parts of the law that provide for compensation for “occupational diseases,” but the idea for injuries like sprains and contusions is that such injuries qualify under the Workers’ Compensation Act only if they occurred “by accident.”
This has of course led to a great deal of judicial discourse on what constitutes an “injury by accident.” The upshot is that claims based on either repetitive trauma or cumulative trauma are not compensable.
This was the state of the law for decades. But, the Virginia Court of Appeals recently released an opinion that may have made the law at least a little friendlier to claimants. In Van Buren v. Augusta County, the Court considered a case in which a firefighter claimed an injured shoulder and a herniated disc as a result of approximately forty-five minutes’ worth of maneuvering a large man from where he was stuck in his shower to an ambulance down the hill from the man’s residence. This forty-five minutes included lifting, twisting, dragging, and pushing.
There was a persuasive medical record indicating that the shoulder injury and the disc herniation occurred sometime during the rescue. But the medical records did not pinpoint it any more specifically than that. As such, the question at the heart of the case was whether the forty-five minutes’ worth of varied exertions qualified as an “injury by accident,” rather than repetitive or cumulative trauma.
The Court of Appeals rejected the idea that the injury could have been caused by repetitive trauma, as the firefighter did not perform the same action over and over again. Rather, he had lifted, twisted, pushed, and dragged at various points.
Thus, the only defense possibility left was cumulative trauma. The employer had won on that basis at the Virginia Workers’ Compensation Commission, which concluded that, because it could not be precisely determined what had caused the claimed injuries, no injury by accident had occurred.
But, then it got interesting. The firefighter appealed to the Court of Appeals. In its July 19, 2016 decision, the Court quoted extensively from the leading cases on “injury by accident,” concluding that such injuries must occur due to an “identifiable incident or sudden precipitating event.” It further defined an “identifiable incident” as one being “bounded with rigid temporal precision.”
The Court proceeded to reason that the firefighter could not have been injured by “cumulative events” because—even though the firefighter’s actions were varied and the medical records did not establish any one of those actions as the cause of the shoulder injury or the herniated disc—the forty-five minutes “provided the necessary rigidity of temporal precision to constitute one ‘event.’” Relying on previous authority, the Court referred to this one “event” as a “single piece of work.”This of course raises the question: is there any limit to the amount of time that can be termed “rigidly temporally precise?”
In other words, how long can a “single piece of work” be? If the rescue had taken about three hours, would that be rigid and precise enough? What if the rescue had been complicated enough to take place in shifts, or if the firefighter had taken breaks to briefly rest or catch his breath during the rescue?
This decision leaves those questions unanswered for now. And the opinion is couched in the language of decades’ worth of judicial precedent, making it at least seem like it is not a deviation from the previous state of the law. But unless this opinion is overruled by the Virginia Supreme Court, the likely practical effect is that claimants will have an easier time getting around cumulative trauma defenses by arguing that their injuries occurred during a “single piece of work,” even if it took place over a long time and required several different kinds of actions and exertions.
If you have questions about whether your injury—or your employee’s injury—might not be compensable, you should consult with the knowledgeable attorneys of Gentry Locke’s workers’ compensation practice.