Dep't of Motor Vehicles v. Bandy
| Decision Date | 30 April 2019 |
| Docket Number | Record No. 1878-18-2 |
| Court | Virginia Court of Appeals |
| Parties | DEPARTMENT OF MOTOR VEHICLES/COMMONWEALTH OF VIRGINIA v. JOHN H. BANDY |
UNPUBLISHED
Present: Judges Russell, Malveaux and Senior Judge Clements
Argued at Richmond, Virginia
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Adam L. Katz, Assistant Attorney General (Mark R. Herring, Attorney General; Samuel T. Towell, Deputy Attorney General; Tara Lynn R. Zurawski, Section Chief, on briefs), for appellant.
Horace F. Hunter (Hunter & Everage, on brief), for appellee.
John H. Bandy (claimant) fractured his left wrist during a training session connected to his employment as a law enforcement agent with the Department of Motor Vehicles (DMV). DMV appeals the decision of the Virginia Workers' Compensation Commission (Commission) awarding medical benefits to claimant.1 DMV argues that the Commission erred in making "irreconcilable" factual findings that claimant's injury occurred during both the entire one-day, eight-hour training session and the four-hour afternoon punching session. We affirm the Commission's decision.
On appeal, "[t]his Court must view the evidence in the light most favorable to the prevailing party before the commission." Samartino v. Fairfax Cty. Fire & Rescue, 64 Va. App. 499, 502-03 (2015). So viewed, the evidence established that claimant was assigned to participate in a five-day defensive tactics course beginning August 14, 2017. Training took place from 8:00 a.m. to 5:00 p.m. each day, with a one-hour lunch break between the morning and afternoon sessions.
On August 18, 2017, claimant performed several maneuvers in the morning session that involved twisting his hand and wrist backwards and forcibly bending his wrist forward. He also threw different types of punches at another trainee who blocked the punches with his arms. During the training exercises, the participants switched roles between officer and suspect. After lunch, claimant participated in drills in which he punched a hard rubber mannequin for two to three minutes at a time. The final drill of the day required claimant to hit four different mannequins in succession multiple times. Claimant described the exercise as "intense" and said that he hit the mannequins hard enough to make them "jump[]." Claimant estimated that he threw a total of 125-200 punches of various types with his left hand.
Claimant went home after the training ended at 5:00 p.m. Between 6:00 and 6:30 p.m., his watch began to feel tight on his left wrist. He thought he probably had strained his wrist, as it had not been swollen earlier in the day. Claimant put an ice pack on his wrist, which slightly alleviated his discomfort. When he awoke the next morning, his wrist had "blown up like a balloon."
Claimant went to a local urgent care center for treatment on August 19, 2017. He reported to a nurse practitioner that he had injured his left wrist while "hitting a mannequin" during a police training session. An x-ray showed a fracture to his left wrist. On August 21,2017, an orthopedic hand surgeon evaluated claimant. The doctor's record reflected that claimant had injured his wrist on August 18, 2017 "while doing defensive tactic punching drills for work." The report stated that claimant had experienced "significant pain[,] swelling[,] and discomfort following an episode of heavy contact and impact activity doing drills while working in a training exercise for his employment." The doctor diagnosed claimant's injury as a "comminuted distal radius fracture of left wrist."
Appellant filed a claim with the Commission for benefits based on the August 18, 2017 injury to his wrist. Following a hearing, the deputy commissioner found that claimant had not proved a compensable injury by accident because "the evidence in the record suggest[ed] that the claimant's injury occurred gradually over a period of time as the result of repetitive . . . punching during the afternoon of August 18, 2017." Claimant requested review.
The full Commission reversed the deputy commissioner, finding that claimant's wrist injury did not arise from repetitive events but was a "discrete and specific injury" attributed to "defensive tactic punching drills for work."2 The Commission noted that "[t]he eight-hour training session on August 18, 2017 during which [claimant] participated provided the necessary rigidity of temporal precision to constitute one event." The Commission concluded, however, that "[t]he defensive tactics punching training undertaken on August 18, 2018 [sic] was one 'piece of work'" and that claimant "sustained an injury caused by a particular piece of work occurring at a reasonably definite time."
As the appellant in this case, DMV must demonstrate that the Commission's ruling was reversible error. See Burke v. Catawba Hosp., 59 Va. App. 828, 838 (2012). "[W]hether aclaimant 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.'" Riverside Regional Jail Auth. v. Dugger, 68 Va. App. 32, 37 (2017) (quoting Van Buren v. Augusta Cty., 66 Va. App. 441, 446 (2016)). The Commission's factual findings are binding on appeal if supported by credible evidence, but "[w]hether those facts prove the claimant suffered an 'injury by accident' is a question of law." Id. Thus, "we review that portion of the Commission's decision de novo." Van Buren, 66 Va. App. at 446.
To be compensable under the Virginia Workers' Compensation Act, an injury by accident must "aris[e] out of and in the course of the [claimant's] employment." Code § 65.2-101. The claimant must prove, by a preponderance of the evidence, that an identifiable incident occurred at some reasonably definite time, resulting in an obvious sudden mechanical or structural change in his body that is causally connected to the incident. See Hoffman v. Carter, 50 Va. App. 199, 212 (2007); Va. Dep't of Transp. v. Mosebrook, 13 Va. App. 536, 537 (1992). "[A] gradually incurred injury is not an injury by accident within the meaning of the Act," Hoffman, 50 Va. App. at 213 (quoting Dollar Gen. Store v. Cridlin, 22 Va. App. 171, 175 (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 (quoting Morris v. Morris, 238 Va. 578, 589 (1989)).
Here, the parties agree that claimant's injury did not arise from "repetitive trauma." Id. Thus, the dispositive issue is whether claimant's injury was caused by an event "bounded with rigid temporal precision." Morris, 238 Va. at 589. The evidence established that claimant fractured his left wrist on August 18, 2017, during the afternoon training session that consisted of four hours of punching drills. Claimant's wrist was not swollen at the beginning of the day's training, and he first noticed swelling in his wrist within sixty to ninety minutes after he hadfinished the punching drills. When he sought medical treatment the next day, he reported that he had injured his wrist while "hitting a mannequin." The records of the hand surgeon who evaluated claimant several days later reflected that claimant had fractured his left wrist on August 18, 2017, "while doing defensive tactic punching drills for work." Accordingly, claimant proved that his injury occurred during a reasonably definite time and was a compensable injury by accident. See Dugger, 68 Va. App. at 41-44 ().
DMV acknowledged at oral argument that its complaint, in fact, was not with the Commission's finding that claimant's injury occurred during the afternoon punching session. Rather, DMV disagrees with the Commission's statement in its decision that "[t]he eight-hour training session on August 18, 2017 . . . provided the necessary rigidity of temporal precision to constitute one event." DMV contends that the statement cannot be reconciled with the Commission's finding that claimant's injury occurred during the afternoon punching drills.3
Read in the context of the Commission's entire ruling, we conclude that the Commission's reference to the "eight-hour training session" may be considered dicta, as it was not essential to deciding the case. See, e.g., Newman v. Newman, 42 Va. App. 557, 565-66 (2004) (en banc) (). The Commission clearly found that claimant's injury by accident occurred during the punching drills that took place in the afternoon training session, and the record supports that finding. Thus, we affirm the Commission's award of medical benefits to claimant.
Affirmed.
I fully concur in both the reasoning and result of the majority opinion. The evidence was sufficient to support a conclusion that the injury occurred during the afternoon session, and the Commission so found.4 As DMV concedes, such a finding renders this case indistinguishable from this Court's decision in Riverside Reg'l Jail Auth. v. Dugger, 68 Va. App. 32 (2017). Accordingly, as the majority concludes, the Commission did not err in awarding benefits to claimant.
I write separately to address the Commission's assertion that "[t]he eight-hour training session on August 18, 2017 during which [claimant] participated provided the necessary rigidity of temporal precision to constitute one event." Although I agree with the majority that the statement represents mere dicta, it is an incorrect statement of the law, and thus, is dicta with the potential to cause great mischief going forward.
As the Commission opinion acknowledges, a claimant, to establish that he has suffered an...
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