Virginia Court of Appeals Holds Only a Single Structural Change in the Body Must Be Shown

In a published Opinion on May 14, 2019, Alexandria City Public Schools v. Kerri Handel Record No. 1582-18-4, the Court of Appeals held that a sudden mechanical or structural change in the body is only required to be shown in one part of the body to qualify as a compensable injury by accident. Stated differently, so long as one part of the body is shown to have suffered a mechanical or structural change, the Award may reach other parts of the body as well if they are causally related to the accident.

The Court in Handel reviewed the familiar three-prong injury by accident test: (1) an identifiable incident; (2) that occurs at some reasonably definite time; (3) an obvious structural or mechanical change in the body; and (4) a causal connection between the incident and the bodily change— and held that they never had directly addressed the third prong before.

The Court held that this prong is required to show the occurrence of an “accident” only, and not an “injury.”

The employer in Handel disputed claimant’s right shoulder claim. While claimant alleged pain in the right shoulder after the work accident, imaging revealed no structural changes.

Does this published Opinion move needle in the defense of workers’ compensation matters? Probably not much, so long as the Commission indeed requires a single, identifiable accident (a real concern as of late) and that causation be established.

What are the take-always for the Virginia adjuster?

1. Be sure to explore what precise pain claimant had at the time of the accident. Have claimant explain specifically each and every part of the body where pain was felt as a result of the accident. If pain did not develop until after the accident, have claimant identify when the pain started. Pain at the moment of the accident is not required under the law. However, a compensable accident causally related to the injuries is required. To the extent pain only developed some time after the accident, this will likely cause more question related to whether medical causation can be established.
2. If pain did not occur in a body part until some time after the accident, determine if claimant will acknowledge that they are uncertain or merely speculating that the pain is attributable to the described accident. If so, the claimed injury should not be accepted. Explore possible subsequent events that may have also caused the alleged injury.
3. If claimant is alleging multiple alleged body parts, explore whether some alleged injuries may be too far attenuated; thus, not compensable. In Virginia, only those injuries directly caused by the accident and once removed (a single consequence) are compensable. Pinpoint precisely when pain started as to each body part.
4. Remember that claimant must still prove an injured body part is causally related to a compensable accident. This generally requires a specific medical opinion relating the injuries to the work accident. The Commission rarely will infer medical causation and most certainly should not in complex medical cases.
5. Explore pre-existing conditions. Ask about them in the recorded statement, look for them in the medical records and a performed Medical Index Search, and ask the employer about prior complaints. Only prior conditions that have been materially aggravated or accelerated due to a compensable work accident should be accepted.
6. Consider engaging counsel or a nurse to secure medical questionnaires negating medical causation. This will most likely be successful when there is evidence of prior medical care for the same complaints expressed post-accident or discrepancies in how the accident and alleged injuries were reported.

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