Can You Receive Virginia Workers Compensation Benefits for Repetitive Motion Injuries?


Chances are good that when you think of workers compensation claims, you think about a sudden accident such as a car crash that leads to a traumatic brain injury or an industrial machine severing an arm or leg and requiring amputation. And for good reason. The Virginia Workers’ Compensation Act and many of the Workers’ Compensation Commission’s judicial opinions focus on the requirement that an injured worker prove that he or she suffered “an injury by accident arising out of and in the course of the employment” to receive workers compensation benefits, including lifetime medical treatment, temporary total disability payments, permanent disability compensation, and a lump sum workers comp settlement.


But many jobs require employees to perform repetitive task that can cause disabling medical conditions such as tenosynovitis, carpal tunnel syndrome, chondromalacia patella, and other repetitive stress injuries. These cumulative trauma injuries can be every bit as severe and require every bit as much medical treatment as injuries caused by acute trauma.


In Virginia there are two ways for an injured worker to try to obtain benefits due to repetitive motion disorders: injury-by-accident and occupational disease. Unfortunately the Virginia Supreme Court has routinely denied repetitive motion claims under both theories.


Under the Workers’ Compensation Act an injury is compensable only if the injured employee proves: (1) an identifiable incident; (2) that occurs at some reasonably definite time; (3) an obvious sudden mechanical or structural change in the body; and (4) a causal connection between the incident and the bodily change. The Supreme Court of Virginia has stated 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.'” Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989).


History of Repetitive Motion Injury Cases in Virginia


In Morris the Virginia Supreme Court heard three separate claims. The first involved an employee who suffered a heart attack after lifting nearly 100 cartons weighing 50 pounds each over a 45 minute period. The second involved an employee who hurt his back while unloading multiple large, steel doors over a 90 minute period. And the third involved an employee who suffered aback injury and a heart attack while installing ceiling panels weighing 30 to 35 pounds over a 2.5 hour period. All three claims were denied.


In 1996 the Supreme Court held that “job-related impairments resulting from cumulative trauma by repetitive motion, however labeled or however defined, are, as a matter of law, not compensable under the present provisions of the Act.” Stenrich Group v. Jemmott, 251 Va. 186, 467 S.E.2d 795 (1996). This court decision limited injured employees’ rights because it closed the loophole allowing for benefits based on an occupational disease caused by repetitive motion or cumulative trauma.


So how can an injured employee receive Virginia workers compensation benefits for repetitive motion injuries if the Supreme Court has said that cumulative trauma injures are not covered? A recent published opinion from the Court of Appeals of Virginia provides the answer and facts that the Workers’ Compensation Commission may use to award benefits even though the disability and medical treatment appear to be related to an employee’s repetitive motion injury.


Court of Appeals Decision in Riverside Regional Jail Authority v. Duggar Addresses Repetitive Movements During an Extended Period


In Riverside Regional Jail Authority v. Duggar, Record No. 0153-17-2 (Va. Ct. App. July 25, 2017) a correctional officer noticed right knee pain and swelling soon after completing a four-hour defensive tactics training session for her employer. During the physical training she was involved in simulated fights, tossed around a bit, and taken down.


The deputy commissioner and the full commission awarded benefits. The commission found:


The claimant here was engaged in a variety of training exercises and defensive maneuvers over a discrete period of time. The Patient First physicians, selected by the employer, indicated the claimant’s knee sprain was caused by her work. The claimant felt the pain as she walked away from the physical training part of the class and reported it very soon afterwards. We find her testimony was credible and supports the finding she sustained an injury caused by a particular piece of work occurring at a reasonably definite time. The claimant proved an injury by accident and was entitled to a medical award.


The employer appealed, arguing that Duggar did not prove an “injury by accident” because (1) “she was engaged in repetitive movements,” (2) “she did not feel any pain or symptoms in her knee until after she completed the training,” and (3) “she could not point to any identifiable incident that caused her injury.”


An Identifiable Incident


The employer argued that Dugger’s four-hour training period was too long to be considered an identifiable incident. The Supreme Court disagreed, finding the case similar to the facts in Kohn v. Marquis, 288 Va. 142, 762 S.E.2d 755 (2014) and Van Buren v. Augusta Cty., 66 Va. App. 441, 787 S.E.2d 532 (2016).


In Kohn the evidence showed that a police recruit was “violently struck in the head during training” on multiple occasions between September and December 2010. On December 9, 2010 he “suffered several blows to his head while engaged in a defensive training exercise” and “began demonstrating serious neurological deficits during the training exercises,” collapsed, and was taken to the hospital for medical treatment. He later died.


Kohn’s estate administrator argued that Kohn’s injuries “resulted from a series of head traumas over a period of time, rather than from a single identifiable event.” Presumably this argument was made so that Kohn could bring a wrongful death action, which typically awards more in damages than a claim for workers compensation. That’s because wrongful death lawsuits can seek damages for loss of earning capacity and pain and suffering.


The Supreme Court, however, found that Kohn’s estate was entitled to workers compensation because he suffered an obvious mechanical or structural change in his body while engaged in a work activity that exposed him to an employment-related hazard that injured him and contributed to his death. The Court also stated that “if the injury or death results from, or is hastened by, conditions of employment exposing the employee to hazards to a degree beyond that of the public at large, the injury or death is construed to be accidental within the meaning of the statute.”


In Van Buren the Court of Appeals found that a firefighter’s spinal cord injury was compensable, even though it was caused by moving a 400-pound man with a broken leg from the man’s shower to an ambulance over a 45-minute period. The Court of Appeals distinguished Van Buren from Morris, finding that Van Buren “was not engaged in repetitive activity” because he was “engaged in a variety of actions that involved lifting, holding, twisting, pulling, pushing, grabbing, and bending.” In addition the Court of Appeals found the injury compensable because moving the man constituted one event, even though it took 45 minutes.


In awarding benefits to Dugger, the Court of Appeals found that her case was similar to Kohn and Van Buren. She did not walk into the physical training session with a knee injury, therefore it followed that her injury occurred during the training session. As such, her injury is sufficiently “bounded by rigid temporal precision.”


Repetitive Movements


The Court of Appeals found that Dugger’s testimony that she took part in “simulated fights” was proof that she was involved in a variety of movements during the trainng class. Because she was involved in a variety of movements during the class, it followed that she was not injured performing the same movements over and over. Her claim, therefore, was not barred under Morris.


Take-Away Points for Repetitive Motion Injuries in Virginia Workers Compensation


As a Virginia workers compensation attorney representing injured employees and their families across the state, I analyze judicial opinions to determine what facts the court or commission found most important in reaching its decision. Here are a few take-away points from the Dugger decision:


  • An identifiable incident can last up to 4 hours. If your injury is caused by an event that is not “sudden,” but takes place over a 4-hour period or less, then you may receive workers comp benefits in Virginia.


  • The key is to show different movements. At your workers compensation hearing it is important to stress the number of different movements you did during the period in question, so that the commission finds that your injury was not caused by repetitive trauma.


  • You do not need to have pain or symptoms right after the identifiable incident, but it helps. The sooner you have symptoms after an identifiable incident, the stronger your workers comp claim. But you may still receive benefits even if it takes hours or days for your symptoms to show up and you have an opinion from a treating physician or another valid reason, such as adrenaline, for the delay.


  • Legislative action is needed. Until the General Assembly amends the Workers’ Compensation Act to make clear that repetitive motion injuries are compensable, injured workers will continue to have a difficult time receiving benefits that would likely be awarded in many other jurisdictions.


Have a question about your case? Trying to find the right workers compensation attorney? Not sure if your workplace injuries are covered? We’re here to help. Contact Corey Pollard for a free consultation if you’ve suffered a repetitive motion injury on the job.