Injury by Accident: how much time is too much time?

Historically, the Commission has followed the precedent set in Morris v. Morris, which ruled “[i]n order to carry his burden of proving an ‘injury by accident,’ a claimant must prove that the cause of his injury was an identifiable incident or sudden precipitating event and that it resulted in an obvious sudden mechanical or structural change in the body.” Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989) (emphasis added). We began to see a shift in the Commission’s analysis of injury by accident claims in cases such as Van Buren v. Augusta County, 66 Va. App. 441, 787 S.E.2d 532 (2016) and Daggett v. Old Dominion University, JCN VA00001318459 (Mar. 8, 2018). The discussions in Van Buren and Daggett then led to even more of a notable shift in the Commission’s Opinions in Bandy v. Dept. of Motor Vehicles, JCN VA00001370700 (Nov. 2, 2018) and Sclafani v. City of Charlottesville, JCN VA00001340217 (Nov. 29, 2018) (where the Commission’s ruling was wholly premised on the analysis in Bandy), which could potentially turn the longstanding precedent established in cases like Morris on its head.

In Bandy, the claimant’s claim for benefits arose from alleged injury by accident to his left wrist. The claimant was a law enforcement agent for the Department of Motor Vehicles and was participating in defense tactics training at the Virginia State Police Academy. During the training the trainees spent eight hours participating in physical training without any masks or safety equipment, from 8:00 a.m. to 5:00 p.m. each day with an hour for lunch. The training commenced on Monday August 14, 2017.

On August 18, 2017, the day of the alleged incident, the trainees began with review of Kata-5 techniques, karate/judo-based blocking techniques then practiced take-downs. Each of the exercises reviewed involved the claimant bending his partner’s wrist and having his wrist bent. After lunch, the instructors taught various punches, including left and right jabs, uppercuts to the rib cage, punches under the chin, death punches to the head, and elbow strikes on punching bobs and hard rubber mannequins mounted on poles. The claimant described the mannequins as “harder than a CPR dummy but not as hard as brick wall.” The last activity of the day was a punching drill, which consisted of each trainee running to two set places on a basketball court, then ran to each of the four corners, where he then would demonstrate punches on a punching bob until the instructor said stop. The claimant estimated that he threw “125-200” punches of various kinds at the mannequins with his left arm on the day of the incident.

The training ended at 5:00 p.m., at which point the claimant drove home, showered, dressed and ate dinner. Around 6:00 p.m. or 6:30 p.m., the claimant noticed that his wrist was becoming tight. He applied an ice pack, noted that his wrist felt better, and then he went to bed. The next day, the claimant woke up to his wrist swollen. He sought medical treatment and an x-ray revealed a non-displaced oblique fracture through the distal radius.

The Deputy Commissioner denied the claimant’s claim citing the Commission’s decision in Daggett, ruling that:

The evidence in the record is simply insufficient to show the claimant suffered an identifiable incident as required. To the contrary, the evidence in the record suggests that the claimant’s injury occurred gradually over a period of time as the result of repetitive activity. The claimant was involved in training and a drill involving repetitive punching during the afternoon of August 18, 2017; he failed to identify a particular movement or action that resulted in the onset of his symptoms; and he was unable to point to a particular time during the training or drill that his symptoms began. Accordingly, the claimant did not meet his burden of proving he sustained a compensable injury by accident on August 18, 2017 and his claim must be DENIED.

On appeal, the Full Commission reversed the ruling of the Deputy Commissioner stating that “[a]s in Van Buren, we do not agree that the holding in Morris controls the outcome of this case.” Instead the Commission relied on the analysis in Van Buren, ruling in pertinent part:

The evidence does not establish the claimant’s traumatic injury arose from repetitive events. Without the use of safety equipment, the claimant executed a variety of defensive techniques, takedowns, holds and a several distinct types of punches. The eight-hour training session on August 18, 2017 during which he participated provided the necessary rigidity of temporal precision to constitute one event. The claimant saw Nurse Bivins the following morning. An x-ray examination revealed a traumatic injury -a fracture of the hand. This was a discrete and specific injury. Dr. McDermott attributed the wrist fracture to defensive tactic punching drills for work.

We conclude the evidence supports the conclusion that the claimant suffered a particular injury during the course of defensive tactics training. The claimant sustained a traumatic injury in the form of a left wrist comminuted distal radius fracture. It was not an injury of gradual growth or one that, by its nature, resulted from repetitive activity. The defensive tactics punching training undertaken on August 18, 2018 was one “piece of work.” The claimant consistently attributed his injury to this drill. Dr. McDermott, the treating physician, stated a causal relationship between the left wrist fracture and the punching drill. To require the claimant to pinpoint the exact moment his wrist fractured during the exercise would yield an unjust result. We find the claimant’s testimony was credible and supports the finding he sustained an injury caused by a particular piece of work occurring at a reasonably definite time.

The ruling in Bandy is in direct contradiction of how the issue of temporal proximity has been examined previously by the Commission under Morris. The Commission found that the eight-hour training was one event that occurred at a definite time, rather than considering it a cumulative act; therefore, finding that the claim was compensable.

While Bandy is pending appeal, it is currently good law and the effects of its ruling are already being felt throughout the workers’ compensation arena in cases like Sclafani. In Sclafani, the claimant was a police officer, who on the day of the incident was engaged in role-play training with the swat team from 8:00 a.m. to 4:30 p.m. Later that evening, the claimant began to have trouble lifting his arm and began to get sore. Subsequently, the claimant sought medical treatment, and an x-ray showed impingement and an MRI showed mild tendinosis of the supraspinatus tendon and bursitis. The Deputy Commissioner found that the claimant did not sustain a compensable injury by accident and the Full Commission reversed. The Full Commission found that the ruling in Bandy was controlling and “the training session provided the necessary rigidity of temporal precision to constitute one event, and the claimant suffered a discrete and specific traumatic injury to his shoulder as a result.” Therefore, finding the claim was compensable.

Important Takeaways:

• As previously stated, while Bandy is only a Full Commission Opinion it is still considered good law even though it is pending appeal.
• While the cases thus far that adhered to the ruling in Bandy involved first responder claimants, the Commission’s Opinion in Bandy does not distinguish whether the parameters established extend only to first responder claimants or other claimants as well.
• At this time, we do not suggest any immediate change in protocol regarding how injury by accident issues are evaluated as Bandy is not in a case precedent setting yet and has not been applied outside of the first responder classification.

Both Bandy and Sclafani are pending appeal and we will provide a legal update regarding this issue once the decisions have been rendered. It will be interesting to see if this Fall will bring a change of law along with the change of leaves.

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