City of Charlottesville v. Sclafani

• Citation: 830 S.E.2d 52,70 Va.App. 613
• Decision Date: 23 July 2019
• Docket Number: Record No. 1999-18-3
• Parties: CITY OF CHARLOTTESVILLE v. William SCLAFANI
• Court: Virginia Court of Appeals

70 Va.App. 613

830 S.E.2d 52

CITY OF CHARLOTTESVILLE

v.William SCLAFANI

Record No. 1999-18-3

Court of Appeals of Virginia, Salem.

JULY 23, 2019

Brian J. McNamara (Brian A. Richardson, Richmond; Faraaz A. Jindani ; Ford Richardson, PC, on briefs), for appellant.

Bradford M. Young (HammondTownsend, PLC, on brief), Fishersville, for appellee.

Present: Judges Chafin, Russell and Senior Judge Clements

OPINION BY JUDGE TERESA M. CHAFIN

William Sclafani, a Charlottesville police officer, injured his left arm and shoulder while playing the role of a restrained suspect during a SWAT team training activity. The City of Charlottesville ("the City") now appeals the decision of the Virginia Workers’ Compensation Commission awarding Sclafani temporary total disability from July 21, 2017, through August 15, 2017 in addition to medical benefits. On appeal, the City argues that the Commission erred in finding that Sclafani suffered a compensable, discrete injury by accident arising out of employment.¹ For the reasons that follow, we reverse the Commission’s finding and remand for further fact finding.

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 prevailing party below," in this case, Sclafani. Anderson v. Anderson, 65 Va. App. 354, 361, 778 S.E.2d 132 (2015) (quoting Artis v. Ottenberg’s Bakers, Inc., 45 Va. App. 72, 83, 608 S.E.2d 512 (2005) ). So viewed, the facts are as follows.

On May 9, 2017, Sclafani played the role of a suspect who needed to be restrained for a SWAT team training activity. The training lasted from approximately 8:00 a.m. until between 4:30 and 5:00 p.m. In his role as a suspect, Sclafani was repeatedly handcuffed, thrown to and picked up off the ground while in handcuffs. Sclafani testified that while he did feel some mild discomfort throughout the day, he denied feeling a "pop" or sudden acute pain. In fact, he stated in his deposition testimony that he advised his doctors that there was no immediate onset of significant pain. However, as he was leaving the training, Sclafani noticed that he could not straighten his left arm on the steering wheel. Later that evening, he could not raise his left arm straight up or down. Sclafani testified that the pain did not really begin until the following day.

While Sclafani reported his injury to his sergeant, he did not seek treatment with Kristine Shannon, a nurse practitioner, until May 12, 2017. Shannon advised him to see a specialist if he did not improve within three weeks. Sclafani ultimately sought treatment from Dr. William T. Grant, an orthopedist, who gave him a steroid injection and referred him to physical therapy. Sclafani underwent surgery on his left shoulder on July 26, 2017. On August 10, 2017, the orthopedist opined that Sclafani could resume light-duty work on August 16, 2017. Sclafani’s light-duty status was continued on September 7, 2017. On September 28, 2017, Sclafani was released to recommence full duty work.

Sclafani filed a claim alleging injury by accident to his left shoulder and arm and seeking an award of medical benefits and temporary total disability benefits from July 21, 2017, to August 16, 2017. The City asserted that Sclafani did not suffer a compensable, discrete injury by accident. The City further alleged that the medical evidence did not support the period of disability alleged by Sclafani.

Following a hearing, the deputy commissioner issued an opinion on July 20, 2018, finding that Sclafani failed to prove his arm and shoulder injury was compensable. The deputy commissioner further explained that although Sclafani did have a clearly defined injury, there was no acute onset of pain. To be compensable, the deputy commissioner concluded that the Commission would have to broaden the definition of "rigid temporal precision" to include injuries that occurred at an unidentified point during an eight-hour period. Because Sclafani was unable to identify a certain point during the eight-hour training at which his injury occurred, the deputy commissioner denied Sclafani’s claim for benefits.

Sclafani appealed to the full Commission. The full Commission reversed the deputy commissioner’s denial of Sclafani’s claim. Based on the factual similarities between the two cases, the Commission relied in large part on its own decision in Bandy v. Department of Motor Vehicles, JCN VA00001370700 (Va. Wrk. Comp. Nov. 2, 2018), in reversing the deputy commissioner’s decision. The Commission found that Sclafani’s case was similar to Bandy in that "the eight-hour training session ... provided the necessary rigidity of temporal precision to constitute one event, and [Sclafani] suffered a ‘discrete and specific’ traumatic injury to his shoulder as a result." The City appealed to this Court.

Analysis

On appeal, the City contends that Sclafani failed to prove that he suffered a compensable, discrete injury by accident arising out of employment. The City further argues that Sclafani did not meet his burden to show an identifiable incident that occurred at "some reasonably definite time" on May 9, 2017. Finally, the City argues that the medical evidence presented failed to support the period of disability alleged.

It is the burden of the City, the appealing party in this case, to demonstrate on appeal that the Commission’s ruling constituted reversible error. Burke v. Catawba Hosp., 59 Va. App. 828, 838, 722 S.E.2d 684 (2012). "The Commission’s factual findings bind [this Court] as long as credible evidence supports them," Riverside Reg’l Jail Auth. v. Dugger, 68 Va. App. 32, 37, 802 S.E.2d 184 (2017) (quoting Van Buren v. Augusta Cty., 66 Va. App. 441, 446, 787 S.E.2d 532 (2016) ), such that "the existence of ‘contrary evidence ... in the record is of no consequence,’ " City of Waynesboro v. Griffin, 51 Va. App. 308, 312, 657 S.E.2d 782 (2008) (quoting Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824 (1991) ). "However, whether those facts prove the claimant suffered an ‘injury by accident’ is a question of law" which this Court reviews de novo . Goodyear Tire & Rubber Co. v. Harris, 35 Va. App. 162, 168, 543 S.E.2d 619 (2001).

The Virginia Workers’ Compensation Act requires that an injury by accident "aris[e] out of and in the course of the [claimant’s] employment" to be compensable. Code § 65.2-101. The claimant must prove, by a preponderance of the evidence, that he sustained a compensable injury. See Va. Dep’t of Transp. v. Mosebrook, 13 Va. App. 536, 537, 413 S.E.2d 350 (1992). In addition, the claimant bears the burden of establishing that an identifiable incident occurred at a reasonably definite time that resulted in an obvious sudden mechanical or structural change in his body that was causally connected to the incident. See Hoffman v. Carter, 50 Va. App. 199, 212, 648 S.E.2d 318 (2007). "A gradually incurred injury is not an injury by accident within the meaning of the Act." Id. at 213, 648 S.E.2d 318 (quoting Dollar Gen. Store v. Cridlin, 22 Va. App. 171, 175, 468 S.E.2d 152 (1996) ). Thus, "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 184 (quoting Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858 (1989) ). Instead, regarding the element of timing, the claim regarding the incident must be "bounded with rigid temporal precision." Morris, 238 Va. at 589, 385 S.E.2d 858.

The Virginia Workers’ Compensation Act establishes a no-fault scheme that makes temporal proof necessary. If the time of the incident cannot be determined, an employer cannot properly investigate and defend the claim. Id. at 586, 385 S.E.2d 858. However, the Supreme Court and this Court have held that an incident lasting for more than a few seconds or minutes can be enough to establish the "rigid temporal precision" required when the surrounding circumstances support the conclusion. See id. at 589, 385 S.E.2d 858 (holding that the claimant’s inability to identify "whether he fell at 11:35 a.m. or 11:45 a.m." does not necessarily defeat a claim as long as a claimant can "fix the time of the occurrence with reasonable accuracy"); Richard E. Brown, Inc. v. Caporaletti, 12 Va. App. 242, 243-44, 402 S.E.2d 709 (1991) (holding that a claimant only needs to prove that an injury "occur[ed] within a reasonably definite time").

The Supreme Court contemplated the question of "whether chilblains

that the claimant suffered as a result of being exposed to cold temperature in a walk-in cooler during a four-hour period constitute[d] an ‘injury by accident’ under [the Act]" in S. Express v. Green, 257 Va. 181, 183, 509 S.E.2d 836 (1999). The Court found that the claimant did in fact establish an injury by accident because her "chilblains first appeared during the time that she spent in the cooler, thus at a particular time and place and upon a particular occasion." Id. at 189, 509 S.E.2d 836. Further, the Court held that the claimant’s chilblains resulted from "the performance of a specific piece of work" – the nearly continuous exposure to the cold of the walk-in cooler for a four-hour period. Id.

This Court applied the same logic in Van Buren v. Augusta Cty., 66 Va. App. 441, 787 S.E.2d 532 (2016), in which the claimant, a firefighter, was injured during the rescue of a 400-pound man from an accident in a shower. Id. at 444, 787 S.E.2d 532. Claimant, however, could not identify the specific moment during the forty-five-minute rescue at which he was injured. This Court held that the claimant suffered a non-cumulative injury as he was continuously "engaged in a variety of actions that involved lifting, holding, twisting, pulling, pushing, grabbing, and bending" during the rescue effort. Id. at 452, 787 S.E.2d 532. We further held that the rescue itself was...