No Reference to Alleged Injury in ER Records Snaps Jeweler's Case

06 Jan, 2021 Frank Ferreri


Reporting to the emergency room 11 days after an alleged at-work injury didn’t build a jewelry salesperson’s case for benefits.

Instead, the court in Sterling Jewelers and XL Specialty Insurance Co., No. 0678-20-4 (Va. Ct. App. 12/29/20, unpublished) noted that the medical records from the ER visit didn’t refer to the injury, leaving the salesperson unable to establish “obvious sudden mechanical or structural changes” to support his claim.

Injury, ER Visit

While preparing a display case, an access panel the salesperson was holding fell against the left side of his head. The salesperson alleged that the falling panel caused him to go unconscious for “I don’t know how long.”

When the salesperson came to, coworkers gathered around him and gave him ice for a nosebleed. The salesperson turned down offers to take him to the hospital. However, he alleged that the bleeding continued and he began to experience left ear pain, “a bad headache,” and blurred vision, so his manager sent him home.

About two hours after arriving at home, the salesperson began shaking and bit his tongue but relaxed within about 15 seconds.

Eleven days after the incident, the salesperson sought treatment at an emergency room. There, he was diagnosed with a post-concussion headache and a closed head injury. In follow-up treatment, a doctor placed the salesperson on an anti-seizure medication and opined that the salesperson had not experienced a permanent impairment from the injury.

The salesperson later visited a cardiologist with complaints of shortness of breath, heart palpitations, dizziness, and left upper extremity and facial numbness. The cardiologist diagnosed the salesperson with uncontrolled hypertension and noted that he had symptoms of transient ischemic attacks.

Later, the salesperson reported that he experienced “lots of symptoms” after his doctor removed him from the anti-seizure medication. Additionally, he reported that he had a seizure and fell down the stairs in his home.

The salesperson saw two more doctors, with one opining that he had possible “alcohol withdrawal” and the other noting that the salesperson had “questionable seizures.”

On the salesperson’s claim for benefits, a deputy commissioner found that he had failed to prove compensable injuries. On appeal, the full commission affirmed the decision, finding insufficient evidence that the salesperson had experienced “obvious sudden mechanical or structural changes” resulting from the injury.

Sudden Mechanical or Structural Change

The salesperson appealed to the Virginia Court of Appeals, claiming that the commission erroneously determined that he did not experience a compensable injury.

Under Virginia law, for an on-the-job injury to be compensable, it must cause an obvious sudden mechanical or structural change in the body.

In this case, the court determined that the commission’s decision was on solid footing.

“The medical records closest in time to [the salesperson’s] workplace accident – the emergency room notes from 11 days after the accident occurred – do not contain any references to the alleged injuries,” the court wrote. “Because credible evidence in the record supports the commission’s finding that [the salesperson] failed to prove any obvious sudden mechanical or structural changes to his left ear, nose, face, or neck, we are bound by and affirm that finding.”

Thus, the court affirmed the rulings against the salesperson.

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    About The Author

    • Frank Ferreri

      Frank Ferreri, M.A., J.D. covers workers' compensation legal issues. He has published books, articles, and other material on multiple areas of employment, insurance, and disability law. Frank received his master's degree from the University of South Florida and juris doctor from the University of Florida Levin College of Law. Frank encourages everyone to consider helping out the Kind Souls Foundation and Kids' Chance of America.

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