David Daggett v. Old Dominion University/Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: September 25, 2018
• Docket: 0517181
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Malveaux and Senior Judge Annunziata Argued at Norfolk, Virginia UNPUBLISHED

DAVID DAGGETT MEMORANDUM OPINION* BY v. Record No. 0517-18-1 JUDGE MARY BENNETT MALVEAUX SEPTEMBER 25, 2018 OLD DOMINION UNIVERSITY/ COMMONWEALTH OF VIRGINIA

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

Gregory E. Camden (Montagna Klein Camden, LLP, on briefs), for appellant.

Scott John Fitzgerald, Senior Assistant Attorney General (Mark R. Herring, Attorney General; Samuel T. Towell, Deputy Attorney General; Tara Lynn R. Zurawski, Section Chief, on brief), for appellee.

David Daggett (“claimant”) appeals a decision of the Virginia Workers’ Compensation

Commission (“the Commission”). He argues the Commission erred in finding that he failed to

prove he suffered a compensable injury by accident to his left and right shoulders. For the

following reasons, we affirm the Commission’s decision.

I. BACKGROUND

“On appeal from a decision of the . . . Commission, the evidence and all reasonable

inferences that may be drawn from that evidence are viewed in the light most favorable to the

party prevailing below.” Anderson v. Anderson, 65 Va. App. 354, 361, 778 S.E.2d 132, 135-36

(2015) (quoting Artis v. Ottenberg’s Bakers, Inc., 45 Va. App. 72, 83, 608 S.E.2d 512, 517

(2005) (en banc)).

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. In March 2017, claimant was employed by Old Dominion University (“employer”) as a

technical support provider. At work on March 21, 2017, he moved a series of fourteen “smart

boards” for inventory control purposes. Each board measured approximately four-by-six or

four-by-eight feet, weighed between twenty-eight and forty-eight pounds, and had to be moved

twice. To perform this work, claimant grabbed each board by its sides, picked it up, rotated the

board by lifting it “up and over,” and placed it on the other side of the room. After recording the

serial number on the back of the board, claimant returned it to its original location. Claimant

summarized his activity by stating that “I had to rotate them and then I had to rotate them back.”

During this work, claimant’s arms were sore and his shoulders were “burning,” especially

his left shoulder. Claimant had not previously experienced these sensations. Although he could

not specify exactly when the burning and soreness began,1 by the time claimant finished moving

the boards, he was “hurting.” When later asked what he thought had caused his injury, claimant

stated, “if I had to guess, it would be repetitive movement.”

On April 3, 2017, claimant filed an accident/injury report with employer. In that report,

claimant stated that his left shoulder was tender and that he could not lift his arm without pain.

He further stated that “I was moving smart boards . . . . I was sore and assumed I overworked

my shoulder muscle.” Since then, “[m]oving things around has made my shoulder worse.”

Claimant later stated that although he initially reported only a left shoulder injury, “both sides

were affecting me, but the left was really bad.”

The following day, claimant sought medical treatment for his symptoms and was referred

to an orthopedist. On April 17, 2017, claimant filed a claim for benefits alleging an injury to his

left shoulder. He later amended his claim to include a right shoulder injury.

1 Before the deputy commissioner, claimant testified variously that “it was pretty much immediately,” “I can’t say, it was in the middle of it,” “[i]t was probably more towards the end,” and “I can’t specify exactly when.” -2- Dr. Arthur Wardell, an orthopedist, examined claimant on May 24, 2017. He diagnosed a

torn rotator cuff in each shoulder and prescribed physical therapy. Dr. Wardell also specified

that claimant should be subject to work restrictions. The following week, claimant received

physical therapy. The treatment record for that visit states that claimant was “moving + rotating

boards ~ 20 lbs each multiple times in one day.”

The deputy commissioner found that claimant had suffered a compensable injury by

accident to both shoulders and awarded claimant medical benefits. On appeal, a divided

Commission reversed the deputy commissioner’s decision. The majority found that claimant had

failed to prove he suffered a compensable injury by accident because he did not prove that his

shoulder injuries resulted from an identifiable incident or sudden precipitating event. Instead,

the preponderance of the evidence indicated that claimant’s injuries “occurred gradually over a

period of time.” The majority noted that “claimant was engaged in movements of a repetitive

nature” in lifting and turning smart boards and was unable “to identify a particular movement or

action that resulted in the onset of his symptoms.” Further, claimant was “unable to recall

specifically when his symptoms began during the period [when] he was moving the smart

boards.”

The majority also distinguished the claim before it from the claims in both Riverside

Reg’l Jail Auth. v. Dugger, 68 Va. App. 32, 802 S.E.2d 184 (2017), and Van Buren v. Augusta

Cty., 66 Va. App. 441, 787 S.E.2d 532 (2016), cases in which this Court held that the claimants

were not required to pinpoint the exact moment of their injuries. The majority noted that in those

cases, this Court specifically found that the claimants were not engaged in repetitive activities or

movements. The majority concluded that the claim before it was instead controlled by Morris v.

Morris, 238 Va. 578, 385 S.E.2d 858 (1989), because claimant’s “repetitive activity [was] very

similar to the claimants’ activities in Morris.” In Morris, the majority noted, the Supreme Court

-3- held that the claimants failed to prove identifiable incidents or sudden precipitating events, while

also holding that injuries are not compensable when they result from repetitive trauma or

cumulative events, or occur at an unknown time. Claimant appealed the Commission’s decision.

II. ANALYSIS

Claimant argues the Commission erred in finding that he failed to prove that he suffered a

compensable injury by accident to his left and right shoulders.

As the appellant in this case, claimant has the burden of demonstrating that reversible

error was committed by the Commission. Burke v. Catawba Hosp., 59 Va. App. 828, 838, 722

S.E.2d 684, 689 (2012). “The [C]ommission’s determination of whether a claimant suffered ‘an

“injury by accident” presents a mixed question of law and fact, because it involves both factual

findings and the application of law to those facts. The Commission’s factual findings bind us as

long as credible evidence supports them.’” Dugger, 68 Va. App. at 37, 802 S.E.2d at 187

(quoting Van Buren, 66 Va. App. at 446, 787 S.E.2d at 534). This principle applies “even [if]

there is evidence in the record to support a contrary finding.” City of Waynesboro v. Griffin, 51

Va. App. 308, 317, 657 S.E.2d 782, 786 (2008) (quoting Morris v. Badger Powhatan/Figgie Int’l,

Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986)). However, “whether those facts prove

the claimant suffered an ‘injury by accident’ is a question of law.” Dugger, 68 Va. App. at 37,

802 S.E.2d at 187 (quoting Van Buren, 66 Va. App. at 446, 787 S.E.2d at 534). “Therefore, we

review that portion of the Commission’s decision de novo.” Van Buren, 66 Va. App. at 446, 787

S.E.2d at 534.

Code § 65.2-101 limits injuries compensable under the Virginia Workers’ Compensation

Act (“the Act”) to “injur[ies] by accident arising out of and in the course of the [claimant’s]

employment.” To prove such a compensable injury by accident, “a claimant must prove: ‘(1) an

identifiable incident; (2) that occurs at some reasonably definite time; (3) an obvious sudden

-4- mechanical or structural change in the body; and (4) a causal connection between the incident

and the bodily change.’” Dugger, 68 Va. App. at 38, 802 S.E.2d at 187 (quoting Hoffman v.

Carter, 50 Va. App. 199, 212, 648 S.E.2d 318, 325 (2007)). Thus, to recover under the Act, a

claimant must demonstrate “an identifiable incident or sudden precipitating event [that results] in

an obvious sudden mechanical or structural change in the body.” Hoffman, 50 Va. App. at

212-13, 648 S.E.2d at 325 (alteration in original) (quoting Morris, 238 Va. at 589, 395 S.E.2d at

865). Consequently, “a gradually incurred injury is not an injury by accident within the meaning

of the Act,” id. at 213, 648 S.E.2d at 325 (quoting Dollar Gen. Store v. Cridlin, 22 Va. App. 171,

175, 468 S.E.2d 152, 154 (1996)), so that “injuries resulting from repetitive trauma, continuing

mental or physical stress, or other cumulative events, as well as injuries sustained at an unknown

time, are not ‘injuries by accident,’” Dugger, 68 Va. App. at 38, 802 S.E.2d at 187 (quoting

Morris, 238 Va. at 589, 385 S.E.2d at 865).

Claimant argues the Commission erred because the facts prove that he was not engaged

in repetitive activity, but instead in a variety of activities that involved lifting, holding, and

rotating smart boards during a “particular piece of work.”2 He contends that the circumstances

that gave rise to his injuries are factually indistinguishable from those in Dugger and Van Buren

and that like the claimants in those cases, he should have been awarded benefits. Thus, claimant

maintains, the Commission “relie[d] upon the improper standard” when it found that Morris,

rather than Dugger and Van Buren, controls the outcome of this case.

2 Claimant also argues that he engaged in the injurious activity of moving smart boards over a short period of time, rather than over a lengthy or indeterminate period. He contends his injuries occurred within a sufficiently defined time period to be compensable under this Court’s holdings in Dugger and Van Buren. Since we conclude that claimant’s injuries were not compensable because they were caused by repetitive activity, we do not reach claimant’s temporal argument. See Podracky v. Commonwealth, 52 Va. App. 130, 134, 662 S.E.2d 81, 84 (2009) (“[A]n appellate court decides cases ‘on the best and narrowest grounds available.’” (quoting Luginbyhl v. Commonwealth, 48 Va. App. 58, 64, 628 S.E.2d 74, 77 (2006))). -5- We are not persuaded by claimant’s argument. The Commission found that on March 21,

2017, claimant engaged in repetitive movements, could not recall specifically when his

symptoms began while he was moving the smart boards, and was unable to identify a particular

movement or action that caused the onset of his symptoms. Those findings are supported by

credible evidence in the record. Claimant described repeating the same combination of

movements to rotate and move each of fourteen smart boards to the other side of a room, and

then to rotate and move each board back. He also informed his physical therapist that he moved

and rotated the boards multiple times. With respect to his symptoms, claimant could only say

that he had not previously experienced them, they developed sometime while he was moving and

rotating the boards, and he was “hurting” by the time he was done. Further, rather than a

particular movement or action, claimant attributed the onset of his symptoms to his repetitive

movements when moving the smart boards. See Hoffman, 50 Va. App. at 214-15, 648 S.E.2d at

326 (“The testimony of a claimant may [] be considered in determining causation . . . .”

(alteration in original) (quoting Cridlin, 22 Va. App. at 176, 468 S.E.2d at 154)). Because the

Commission’s factual findings on these matters are supported by credible evidence in the record,

they are binding on this Court. In turn, we hold that they are sufficient to support the

Commission’s ultimate finding: that claimant failed to prove his injuries resulted from an

identifiable incident or sudden precipitating event and thus failed to prove he suffered a

compensable injury by accident under the Act.

Further, claimant’s reliance upon Van Buren and Dugger is misplaced. In Van Buren,

this Court specifically noted that the firefighter claimant was not engaged in repetitive activity

and distinguished Morris on that basis. Van Buren, 66 Va. App. at 452, 787 S.E.2d at 537. The

Court concluded that “unlike the claimants in Morris, . . . [the claimant], by contrast, was

engaged in a variety of actions that involved lifting, holding, twisting, pulling, pushing,

-6- grabbing, and bending.” Id. Here, the Commission found that in contrast to the claimant in Van

Buren, claimant was engaged in repetitive activity. That finding necessarily entailed the

conclusion that while claimant’s work activity in moving each smart board may have involved

several discrete movements, those movements were repeated each time claimant undertook a

particular piece of such work—i.e., each time he moved and then replaced one of the fourteen

boards. Consequently, the Commission concluded that claimant’s activities were sufficiently

distinguishable from the widely varied and non-repetitive activities engaged in by the claimant in

Van Buren. We agree that Van Buren is factually distinguishable from the instant case and does

not support claimant’s argument that he suffered a compensable injury by accident arising from

non-repetitive activity.

Dugger is likewise distinguishable. In that case, this Court specifically concluded that, as

in Van Buren, the claimant was not engaged in repetitive activity when she was injured during

training in defensive tactics. Dugger, 68 Va. App. at 41-42, 802 S.E.2d at 189. The Court noted

that “‘simulated fights’ . . . logically involved a variety of movements,” and are “not inherently

repetitive any more than would be the actions of a person defending himself in a [real] fight.” Id.

Such exercises were “more similar to [the activities] in Van Buren,” because they “logically

require[d] pushing, grabbing, bending, and similar motions.” Id. at 42, 802 S.E.2d at 189. As

with Van Buren, we conclude that the Commission correctly distinguished the claimant’s

activities in Dugger from claimant’s activities in the instant case, which were repetitive.

Contrary to claimant’s argument, the Commission did not err in distinguishing Van

Buren and Dugger from the instant case and determining that rather than those cases, Morris

controls. In that consolidated case, the Supreme Court vacated awards of compensation to each

of three claimants. Morris, 238 Va. at 589, 385 S.E.2d at 865. The Court held that none of the

claimants had proved that his injury was caused by an identifiable incident or sudden

-7- precipitating event, resulting in an obvious sudden mechanical or structural change in the body.

Id. The first claimant suffered a heart attack shortly after loading cartons of fiberglass into a

pickup truck; each of the ninety-six cartons weighed approximately fifty pounds and had to be

lifted from a loading dock and lowered into the truck. Id. at 581, 385 S.E.2d at 860. The second

claimant suffered a back injury after delivering seven steel garage doors to a commercial

construction site and unloading each door with a co-worker. Id. at 582, 385 S.E.2d at 860. The

third claimant suffered a heart attack while he was installing ceiling panels; each panel weighed

thirty to thirty-five pounds and had to be held over the claimant’s head while he secured it with a

drill and screw gun. Id. at 583, 385 S.E.2d at 861. Although the Court did not directly

characterize the nature of the activities engaged in by the claimants, its ruling makes clear that it

concluded that they involved “repetitive trauma, continuing mental or physical stress, or other

cumulative events” that produced “gradually incurred injuries,” which were “not ‘injuries by

accident’ within the meaning of [the Act].” Id. at 588, 589, 385 S.E.2d at 864, 865. Here, the

Commission found that claimant’s repetitive activity was very similar to the claimants’ activities

in Morris, and we agree. Thus, the Commission did not apply “the improper standard” when it

held that Morris controls in the instant case, rather than Van Buren or Dugger.

III. CONCLUSION

The record supports the Commission’s finding that claimant failed to prove his injuries

resulted from an identifiable incident or sudden precipitating event. Consequently, we affirm the

Commission’s decision because claimant failed to prove he suffered a compensable injury by

accident to his left and right shoulders.

Affirmed.

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