2.6 Injury by Accident

• Library: Workers' Compensation Practice in Virginia (Virginia CLE) (2020 Ed.)

2.6 INJURY BY ACCIDENT

2.601 Definition. To be compensable, an injury must be the result of an accident. "A claimant establishes an injury by accident if there is '(1) an identifiable incident; (2) that occurs at some reasonably definite time; (3) an obvious sudden mechanical or structural change in the body; and (4) a causal connection between the incident and the bodily change.'" ²⁵⁷

The two leading cases that have sparked many interpretive decisions by the Commission are Badische Corp. v. Starks ²⁵⁸ and Virginia Electric & Power Co. v. Cogbill. ²⁵⁹ In Starks, the claimant, who had a history of back complaints, suffered a gradual onset of pain in her lower back and right leg while working. Her job required her to lift weights of at least 40 pounds and push and pull heavy cans. Nothing unusual happened on the two days when this pain occurred. The claimant gave the first day of pain as the date of the alleged accident and two days later as the day on which disability began. She was later examined by a physician, and a herniated disc was removed. The Commission granted temporary total disability benefits.

The Virginia Supreme Court, however, reversed, holding that (i) an injury by accident arises from an identified incident occurring at some reasonably

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definite time; (ii) when an employee cannot identify an incident causing her injury, she cannot recover compensation; and (iii) there was no evidence of any "sudden structural change" in the claimant's body that is a requisite for an injury by accident. The court noted that the claimant suffered increasing pain on two dates but could not attribute it to any identifiable movement, incident, or event on either day. Accordingly, the claimant's burden of proof had not been satisfied, and there was no evidence to support the Commission's award of compensation. ²⁶⁰

In Cogbill, the claimant worked as an operations clerk and allegedly suffered a lumbar sprain due to prolonged sitting and occasionally bending forward in a straight hardback chair on a truck bed while recording bids at an auction. The Virginia Supreme Court ruled that no industrial injury by accident occurred, because while the claimant may have sat in a hardback chair for a prolonged period of time recording bids, her injury did not involve a sudden or obvious structural change in the body that would be required in the case of ordinary exertion to be compensable. The court noted that the claimant's normal activities were not unusual, that her injury developed slowly, not suddenly, and under such circumstances, her injury did not constitute an accidental injury under the Act. ²⁶¹

The Virginia Supreme Court also reversed the Commission's award of benefits to an employee in Lane Co. v. Saunders. ²⁶² In this case, the employee was required by his employer to exercise unusual exertion when he was instructed to operate a machine different from the one at his regular workstation. The claimant normally operated a band saw that required the use of his shoulders and arms. On a particular day, the claimant was instructed to operate a tenon machine that required repetitive bending and twisting from the waist as well as the stacking of table tops to eye level. Although the claimant could not identify a particular motion or incident that caused his pain, he did testify that his back pain began that morning while working on the tenon machine and progressively increased. The next morning, when he could hardly walk, he reported his back problem, and the treating physician determined there was a herniated disc caused by lifting the table tops.

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The Commission held that because operating the tenon machine was not Saunders' usual job and because he had no prior back problems, the rulings in Badische and Cogbill made Saunders' claim compensable. In reversing the Commission, the Virginia Supreme Court held that for a claimant to show that he has suffered an "injury by accident," he must prove an "identifiable incident that occurs at some reasonably definite time which is the cause of an obvious sudden mechanical or structural change in the body." Because Saunders' evidence did not prove an identifiable incident or sudden precipitating event that was the cause of his disc herniation, he had not proved an "accident" and was not entitled to compensation benefits. ²⁶³

In Goodyear Tire & Rubber Co. v. Harris, ²⁶⁴ the employee, a fabric mill operator, was discharging fabric from a roll when the roll became tangled. The employee was required to crawl into a hole under the machine and pull apart the fabric on his knees, which took 30 to 45 minutes. In the course of unwrapping the fabric, the employee experienced pain in both knees. The court, citing and discussing Southern Express v. Green ²⁶⁵ and Combs v. Virginia Electric & Power Co., ²⁶⁶ disagreed with the employer's assertion that there was no specific incident resulting in a sudden mechanical change which would constitute an injury under the Act. Instead, the court found that the pain experienced by the claimant, as a result of 45 minutes in a kneeling position, was sufficiently within the definition of an "injury by accident."

The Commission has granted benefits in cases where the injury suffered by the employee was caused by several sudden or immediate events that cause a mechanical or structural change in the body. In Ayers v. Goodyear Tire & Rubber Co., ²⁶⁷ the Commission awarded benefits to an employee who lifted 15 items, one at a time, weighing 35 to 37 pounds, over a 15-to 20-minute period. The Commission, relying on R & R Construction Corporation v. Hill, ²⁶⁸ stated that a "'sudden precipitating event' is one that

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'immediately' causes an injury, as distinguished from an injury that appears gradually." ²⁶⁹

In Eastern Shore Community Services Board v. Robinson, ²⁷⁰ the Virginia Court of Appeals held that "a claimant need not experience pain during an identifiable incident to prove that the incident caused a sudden mechanical or structural change in his body" in response to an employer's argument that the claimant did not feel immediate pain during the incident. ²⁷¹

In Holly Farms/Federal Co. v. Yancey, ²⁷² the Commission took a different approach to the Badische requirement that the claimant prove that the onset of symptoms was attributable to "a specific movement on a specific occasion" by holding that a poultry worker's work-related back condition was an occupational disease. ²⁷³ The full Commission also had held that the claimant's case failed to prove an injury by accident as required by Badische.

The Commission's award of benefits on the basis of occupational disease was reversed by the Virginia Supreme Court. The Commission had found that back strain was an "ordinary disease of life," and as such the court held it was not compensable as an occupational disease because it did not fall within the statutory exceptions applicable at that time. The court also pointed out that "implicit" in its prior decisions "is the rule that back injuries are injuries, not diseases."

The Virginia Supreme Court reminded the Court of Appeals that it must adhere to the former's interpretation of the law concerning what constitutes an injury by accident when the Supreme Court decided the following consolidated cases in 1989: Morris v. Morris, ²⁷⁴ Door Systems, Inc. v. Hood, ²⁷⁵ and Pittsburgh Plate Glass v. Totten. ²⁷⁶

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In a sweeping decision reversing these three Court of Appeals decisions, the Virginia Supreme Court reviewed nearly 45 years of precedent supporting the principle that injury by accident does not occur unless there is a specific incident such as picking up a particular heavy object or falling off a ladder, and that working in difficult or stressful employment over a period of time does not constitute a specific incident.

The court stated that to extend coverage under the Act to gradually incurred injuries would impose a substantial deterrent to the employment of older workers and would impose upon the last employer the burden of pensioning every worker worn out by unhealthy exposure on the part of former employers. In an excellent summary of its prior decisions, the court noted it had uniformly followed and applied the Aistrop ²⁷⁷ rule:

Our decisions have uniformly followed and applied the Aistrop rule. See, e.g., Tomko v. Michael's Plastering, 210 Va. 697, 173 S.E.2d 833 (1970) (herniated disc diagnosed after repeated heavy lifting; gradually increasing soreness not proof of "obvious sudden mechanical or structural change"); Badische Corp. v. Starks, 221 Va. 910, 275 S.E.2d 605 (1981) (same; where employee cannot identify particular movement or action causing injury, compensation not recoverable); VEPCO v. Cogbill, 223 Va. 354, 288 S.E.2d 485 (1982) (lumbar strain developed from prolonged sitting in straight-backed chair; not compensable because no sudden, obvious mechanical or structural change shown); The Lane Co., Inc. v. Saunders, 229 Va. 196, 326 S.E.2d 702 (1985) (herniated disc diagnosed after unusual repetitive heavy lifting followed by gradually developing pain; not compensable because no accident, identifiable incident, or sudden precipitating event shown); Kraft Dairy Group v. Bernardini, 229 Va. 253, 329 S.E.2d 46 (1985) (injury caused by cumulative trauma due to repetitive exertions not compensable). ²⁷⁸

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The Supreme Court of Virginia has reasserted its position, in unmistakable terms, that to prove an injury by accident, an employee must present evidence that the injury was caused by a work-related identifiable incident sustained at a reasonably definite time. Evidence concerning a group of multiple events, vague recollections, or general overexertion by the employee does not suffice. ²⁷⁹

2.602 Causal Relationship.

A. In General. The burden is upon the claimant to establish a causal connection between the injury and the employment. The fact that a physical breakdown occurs while the claimant is at...