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What Do You Think: Did Footage of Mom Lifting Baby Put ‘Injury by Accident’ Claim to Bed?

02 Oct, 2023 Chris Parker

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South Boston, VA ( – In order to be compensable in Virginia, an “injury by accident” must arise from a discrete event at work.

But what happens when an employee claims there was a discrete event yet failed to mention it in her initial doctor’s appointment? That was one of the issues in a case involving a worker who constructed windows.

The employee asserted that she was engaged at work on Feb. 5, 2019, when she injured her elbow. It happened, she said, when she was "pulling boxes”—one of two "motions" she was required to engage in "every day," over and over.

The employee saw an orthopedist two weeks later. According to the doctor’s report, the employee reported that she "felt a sharp pain in [her] right elbow" while she was "pulling some material.” The records didn’t mention a pop. The doctor concluded that injury resulted from many years of overuse. He diagnosed her with tennis injury.

The employee filed a workers’ compensation claim.

At the 2022 hearing, the employee told the Workers’ Compensation Commission that she injured herself when she was pulling materials from a box. She testified that she "fe[lt] something pop" in her right elbow and her arm began to hurt.

She also testified that she could not lift more than three pounds, due to the injury, and could not drive. Surveillance footage taken around the same time showed her lifting her young child into and out of a car.
The Commission denied her claim, finding her not credible. It concluded that she failed to state a claim for “injury by accident.”

In Virginia, to prove an "injury by accident,” a claimant must establish:
+ An identifiable incident that occurred at some reasonably definite time;
+ An obvious sudden mechanical or structural change in the body; and
+ A causal connection between the incident and the bodily change.

Did the employee establish an "injury by accident"?
A. Yes. She was clearly injured at work, given that one of her duties was repeatedly pulling material.
B. No. Her explanation of how the injury occurred was not convincing.

If you chose B you sided with the court in Velasquez v. Dan River Window Co., No. 1270-22-2 (Va. Ct. App. 09/19/23), which agreed with the Commission that the employee was not credible and didn’t establish a compensable injury by accident.

An injury by accident, the court explained, must be based on a specific causative event. Injury arising gradually from repeated trauma is not an “injury by accident” under Virginia law.

The court noted that the worker was allegedly unable to lift more than three pounds with her right arm. Surveillance footage told a different story, however.

Another credibility question arose from the employee’s statements regarding hearing a “pop” in her elbow at the time of the alleged accident. The orthopedist’s report from the employee’s initial visit two weeks later never mentioned such a pop.

“The Commission was entitled to give greater weight to the description of the alleged injury that she provided in her roughly contemporaneous report to [the orthopedist] in 2019 rather than in the testimony she provided three years later,” the court wrote.

Finally, the court noted that the orthopedist pointed to years of overuse, not a discrete accident, as the reason for the injury.

The evidence supported the Commission’s finding that her testimony about experiencing a discrete "pop" and sudden sharp pain on Feb. 5, 2019, was not credible and that she proving that she suffered an injury by accident on that date. 

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