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ACCIDENT 

See Arising Out Of,  Course of Employment,  Causation,  Disability, Occupational Disease 

A claimant seeking benefits under the Virginia Workers' Compensation Act must prove either (1) an injury by accident or an occupational disease (2) arising out of and (3) in the course of (4) the employment. Holly Farms Foods, Inc. v. Carter, 15 Va. App. 29, 37, 422 S.E.2d 165, 169 (1992) (quoting Code Sec. 65.2-101).

Elements. To be compensable, the claimant must prove an injury by accident. In order to carry the burden of proving an "injury by accident," a claimant must prove by a preponderance of the evidence that (1) a reasonably unexpected (2) identifiable incident or sudden precipitating event (2) caused (3) an injury, i.e., an obvious sudden mechanical or structural change in the body. Odgen Allied Aviation Servs. v. Shuck, 18 Va. App. 756, 758, 446 S.E.2d 898, 899 (1994) (quoting Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989)). If an injury sustained in an industrial accident aggravates or accelerates a pre-existing condition, then a causal connection between the injury and the resulting disability is proven and is compensable under the Workers' Compensation Act. Southern Iron Works Inc. v. Wallace, 16 Va. App. 131, 134, 428 S.E.2d 32, 34 (1993) (quoting Olsten of Richmond v. Leftwich, 230 Va. 317, 320, 336 S.E.2d 893, 895 (1985)); First Fed. Sav. & Loan Ass'n v. Gryder, 9 Va. App. 60, 63, 383 S.E.2d 755, 757-58 (1989).

The Court of Appeals upheld an award of benefits to a claimant who felt a pull when lifting a particular box, but no actual pain until the next day. She also indicated her injury occurred "while unloading boxes." The medical evidence variously described an overuse injury, strain and tendonitis. "Injury by accident" is defined, within the context of the Workers' Compensation Act, as "an identifiable incident or sudden precipitating event [that results] in an obvious sudden mechanical or structural change in the body." Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989). By contrast, a gradually incurred injury is not an injury by accident within the meaning of the Act. Middlekauff v. Allstate Ins. Co., 247 Va. 150, 154, 439 S.E.2d 394, 397 (1994). Though an injury by accident must be "`bounded with rigid temporal precision,' . . . [a]n injury need not occur within a specific number of seconds or minutes . . . but instead, must occur within a `reasonably definite time.'" Brown v. Caporaletti, 12 Va. App. 242, 243-44, 402 S.E.2d 709, 710 (1991) (quoting Morris, 238 Va. at 589, 385 S.E.2d at 864). The medical reports reflect only the results of claimant's physical examinations and do not purport to establish the cause or causes of her injury. See Morris, 3 Va. App. at 282, 348 S.E.2d at 879. Indeed, neither doctor was asked to give an opinion as to the causal relationship between claimant's work and her disability. See id. at 281-82, 348 S.E.2d at 878-79. Reserve Life Insurance Co. v. Hosey, 208 Va. 568, 159 S.E.2d 633 (1968), does not require that medical evidence is dispositive, or required, to establish causation. The testimony of a claimant may also be considered in determining causation, especially where the medical testimony is inconclusive. See Morris v. Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 281, 348 S.E.2d 876, 878 (1986); 2B Arthur Larson, The Law of Workmen's Compensation Sec. 79.51(a) (1995). In short, the commission was free to credit claimant's testimony at the hearing as a basis for its finding of causation. Dollar Gen. Store v. Cridlin, 22 Va. App. 171, 178, 468 S.E.2d 152, 155 (1996).

Voluntary and other reasonably expected injuries are not compensable. Injuries voluntarily inflicted are not compensable. "[A]n injury by accident must be unexpected to be compensable." See, e.g., Reserve Life Insurance Co. v. Hosey, 208 Va. 568, 570-71, 159 S.E.2d 633, 635 (1968) (injury to knee while making door-to-door survey unexpected); Lynchburg Foundry Co. v. Irvin, 178 Va. 265, 270-71, 16 S.E.2d 646, 648 (1941) (pinching of "safety shoe" causing toe injury unexpected); Ellis v. City of Norfolk, 68 O.I.C. 47, 52 (1989) (finding injury expected therefore noncompensable). However, claimant's injury cannot be considered an "expected" result of a deviation from the heavy lifting restriction placed on her activities because of her breast cancer surgery; her shoulder injury was not one the restriction was intended to avoid. Cf. Miller v. Dixon Lumber Co., 67 O.I.C. 71, 73 (1988); Bragg v. Buchanan General Hosp., 59 O.I.C. 30, 32-33 (1980); Dobbins v. Contractors Equip. & Supply Co., 58 O.I.C. 104, 106 (1979). Dollar Gen. Store v. Cridlin, 22 Va. App. 171, 178, 468 S.E.2d 152, 155 (1996). If an activity violating a doctor's specific restrictions, instructions or orders   (not mere doctor's advice) causes injury, the injury is the expected result of the activity and does not constitute an injury by accident. Carpet Palace, Inc. v. Paul L. Salehi, Record No. 0706-97-4 (Ct. of Appeals, Jan. 20, 1998); Brewer v. Westmoreland Coal Co., 70 O.I.C. 112 (1991). "The basic and indispensable ingredient of 'accident' is unexpectedness." 2 Arthur Larson, Workers' Compensation Law, Sec. 37.20 (1997). "The definition of accident generally assented to is . . . an event which, under the circumstances, is unusual and not expected by the person to whom it happens." Reserve Life Ins. Co. v. Hosey, 208 Va. 568, 570-71, 159 S.E.2d 633, 635 (1968) (knee injury during door-to-door survey was unexpected). Cf. L.B. Priester & Son v. McGee, 106 So.2d 394, 398 (Miss. 1958)(claimant's "expectation of a probable second heart attack [was not] so strong as to strip the occurrence of its accidental character"). Additionally, "[a]n accident is an event which creates an effect which is not the natural or probable consequence of the means employed and is not intended, designed, or reasonably anticipated." Lynchburg Foundry Co. v. Irvin, 178 Va. 265, 271, 16 S.E.2d 646, 648 (1941) (toe ulceration from work shoe and resultant foot amputation were unexpected). Although "few people intentionally persist in a line of conduct that expectedly results in personal injury . . . such cases can be found." Larson, supra, Sec. 38.83(f). See Capers v. Flautt, 407 S.E.2d 660, 662 (S.C. Ct. App. 1991) (claimant's contact dermatitis was "an event which [claimant] could anticipate given his past experience" and was not a compensable injury by accident); Ernest Waters Constr. Co. v. Mills, 51 So.2d 180, 181(Fla. 1951) (claimant's dermatitis was not compensable where it was "activated [three times] by neglect on his part to obey his doctor's instructions"). Nor is an aggravation of a compensable injury caused by a claimant's violation of his restrictions compensable. Kent A. Derrow  v. Owens Brockway Plastics, Inc., Record No. 1827-98-3 (January 19, 1999).

Exposure Cases. If excessive heat [or] cold causes injury, then the injury is an injury by accident within the meaning of the [Act]. Byrd v. Stonega Coal & Coke Co, 182 Va. 212, 215, 28 S.E.2d 725, 727 (1944). In Robinette v. Kayo Oil Co., 210 Va. 376, 171 S.E.2d 172 (1969), the Court denied compensation to an employee who contracted pneumonia after working for several days "without boots, overshoes or raincoat in rainy, snowy and cold weather during which there was standing water around the gasoline pumps" where the employee worked. Id. at 377, 171 S.E.2d at 173. Ruling that the employee did not prove an injury by accident, the Court noted the following: the employee contracted pneumonia from exposure to the elements in the regular course of employment engaged in carrying out the duties for which he had been employed for some six months. There was nothing catastrophic or extraordinary in the exposure, nor did it arise under emergency conditions. The exposure was neither unexpected nor unforeseen but was intentional, deliberate and protracted. There is nothing to distinguish claimant’s activities from those of other service station attendants or other workers who are required to do outside work in all kinds of weather. Id. at 381, 171 S.E.2d at 176. Recently, Imperial Trash Service v. Dotson, 18 Va. App. 600, 445 S.E.2d 716 (1994), held that Morris v. Morris, 238 Va. 578, 385 S.E.2d 858 (1989), did not preclude recovery when the evidence proved that the employee suffered a heatstroke while working in warm weather. The court ruled that the conditions of employment caused the heatstroke because the employee was "work[ing] in hot, humid conditions over a period of time, a situation to which the general public is not regularly exposed." Id. at 605, 445 S.E.2d at 719. Furthermore, the court held that"[t]he fact that [the employee] lifted containers over a brief period does not make the heatstroke [the employee] suffered a 'gradually incurred' injury, as the employer contends." Id.

"[G]enerally it has been held that the term 'injury, 'personal injury,' or 'personal injury by accident,' caused by excessive heat [or] cold . . . is embraced within the meaning of the [Act]." Byrd v. Stonega Coke & Coal Co., 182 Va. 212, 215, 28 S.E.2d 725, 727 (1944). In 1944, when the Supreme Court applied that rule to uphold an award to an employee in Byrd, the Act required an employee who sought compensation for an injury to prove an "injury by accident arising out of and in the course of the employment." 182 Va. at 215, 28 S.E.2d at 727. The current version of the Act has the identical language. See Code Sec. 65.2-101. In Byrd, an employee worked for ten hours around coke ovens that reached a temperature of 2,500 degrees. 182 Va. at 214-15,28 S.E.2d at 726-27. While the employee was breaking coke and pulling it from the ovens, he collapsed and died. Noting that "[a]s an original proposition, it would seem logical to hold that the facts as related, do not disclose an 'accident,'" id., the Court held, however, 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." Id. at 216, 28 S.E.2d at 727. In holding that the employee had made out a prima facie case for compensation, the Court noted that the employee's exposure to extreme heat was the cause of the employee's death because "it is a matter of common knowledge that frequently persons apparently normal collapse from exposure to extreme heat or cold." Id. at 217, 28 S.E.2d at 727.

In Robinette v. Kayo Oil Co., 210 Va. 376, 171 S.E.2d 172 (1969), the Court denied compensation to an employee who contracted pneumonia after working for several days "without boots, overshoes or raincoat in rainy, snowy and cold weather during which there was standing water around the gasoline pumps "where the employee worked. Id. at 377, 171 S.E.2d at 173. Ruling that the employee did not prove an injury by accident, the Court noted the following: In the present case [the employee] contracted pneumonia from exposure to the elements in the regular course of his employment. He was engaged in carrying out the duties for which he had been employed for some six months. There was nothing catastrophic or extraordinary in his exposure, nor did it arise under emergency conditions. His exposure was neither unexpected nor unforeseen but was intentional, deliberate and protracted. There is nothing to distinguish his activities from those of other service station attendants or other workers who are required to do outside work in all kinds of weather. Id. at 381, 171 S.E.2d at 176.

Exposure Cases and Cumulative Trauma. Recently, the Court of Appeals discussed these "exposure" decisions in Imperial Trash Service v. Dotson, 18 Va. App. 600, 445 S.E.2d 716 (1994), and held that the more recent Supreme Court case of Morris v. Morris, 238 Va. 578, 385 S.E.2d 858 (1989), did not preclude recovery when the evidence proved that the employee suffered a heatstroke while working in warm weather. The evidence in Dotson proved the employee suffered an embolism from heatstroke from the following activity: On July 10, 1990, . . . Dotson drove the truck with the windows down. It was not air conditioned. After Dotson and Mickelson had picked up material, weighing fifteen to thirty pounds, at over seven hundred houses in 86 degree temperature, Dotson became confused and began losing his balance. Dotson said, "this heat has gotten to me." Mickelson, who realized that Dotson was in some distress, placed Dotson in the shade of a tree and finished the route alone. When Mickelson returned to the tree, Dotson was in critical condition. Within minutes, Dotson was taken to the hospital, unconscious, with a body temperature of 110 degrees.18 Va. App. at 602, 445 S.E.2d at 717. In Dotson, the Court ruled that the conditions of employment caused the heatstroke because the employee was "work[ing] in hot, humid conditions over a period of time, a situation to which the general public is not regularly exposed." Id. at 605, 445 S.E.2d at 719. Furthermore, the Court held that "[t]he fact that [the employee] lifted containers over a brief period does not make the heatstroke [the employee] suffered a 'gradually incurred' injury, as the employer contends." Id. After the Dotson decision, the Supreme Court in Stenrich Group v. Jemmott, 251 Va. 186, 199, 467 S.E.2d 795, 802 (1996), and Middlekauff v. Allstate Ins. Co., 247 Va. 150, 154, 439S.E.2d 394, 397 (1994), reiterated the view that a gradually incurred injury is not an injury by accident within the meaning of the Act. Both Jemmott and Middlekauff cite Morris, which states 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' within the meaning of Code Sec. 65.1-7." 238 Va. at 589, 385 S.E.2d at 865. See Allied Fibers v. Rhodes, 23 Va. App. 101, 104, 474 S.E.2d 829, 830 (1996) (hearing loss resulting from prolonged exposure to industrial noise is noncompensable gradually incurred injury). But see Code Sec. 65.2-400(C) (amended in 1997 to state that "[h]earing loss and carpal tunnel syndrome are not occupational diseases but are ordinary diseases of   life as defined in [Code] Sec. 65.2-401").

Claimant worked in a refrigerated room between two and three hours shelving merchandise. She developed superficial frostbite and chilblains. Her injuries are compensable. Southern Express v.  Clara Louise Green, Record No. 1316-97-2 (February 3, 1998), 26 Va. App. 439, 495 S.E.2d 500 (1998), affirmed, Southern Express v. Green, 257 Va. 181, 509 S.E.2d 836 (1999). Exposure to cold temperature in a cooler for approximately four hours during a shift of work constitutes an identifiable event or incident. Chilblains were not an "injury of gradual growth . . . caused by the cumulative effect of many acts done or many exposures to conditions prevalent in the work, no one of which can be identified as the cause of the harm . . . ." Aistrop v. Blue Diamond Coal Co., Inc., 181 Va. 287, 293, 24 S.E.2d 546, 548 (1943). Instead, the chilblains were "the result of some particular piece of work done or condition encountered on a definite occasion . . . ." Id. In other words, claimant's chilblains resulted from a single exposure to cold temperature on a definite occasion during the performance of a specific piece of work, i.e., an "identifiable incident." Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989). It was not caused by repeated exposures over a period of months or years. See also, Byrd v. Stonega Coke & Coal Co., 182 Va. 212, 28 S.E.2d 725 (1944)(claimant died after having pulled coke out of a hot oven for more than ten hours.)

Repetitive/cumulative trauma, continuing physical/mental stress, cumulative events in general, injuries at unknown time.

    In response to certified questions of law from a federal district court, the Virginia Supreme Court held that the Virginia Workers' Compensation Act does not bar a plaintiff from bringing a common-law action to recover damages for hearing loss resulting from cumulative trauma if the claim accrued during the period in which such hearing loss was not a compensable injury or disease under the Act, that such claims are not within the purview of the Act, and that pursuing such a claim before the Commission in the first instance is not required.
    On March 1, 1996, the Virginia Supreme Court decided The Stenrich Group v. Jemmott, 251 Va. 186, 467 S.E.2d 795 (1996).  Three cases
involving claimants seeking compensation for disease caused by repetitive motion or trauma under the Act were consolidated for consideration under Jemmott.  Two cases involved carpal tunnel syndrome and one case involved "trigger thumb."  The Court held that "job-related impairments resulting from cumulative trauma caused by repetitive motion, however labeled or however defined, are, as a matter of law, not compensable under the [then existing] provisions of the Act."  Id. at 199, 467 S.E.2d at 802.  Several months later, on September 3, 1996, the Court of Appeals of Virginia rendered an opinion in a hearing loss case, stating that "the Supreme Court's decision in Jemmott mandates our holding that gradually incurred industrial hearing loss is a noncompensable, cumulative trauma condition or injury," under the terms of the then existing Act.  Allied Fibers v. Rhodes, 23 Va. App. 101, 102, 474
S.E.2d 829, 829-30 (1996).
    Apparently in response to Jemmott and Allied Fibers, the General Assembly amended the Act, effective July 1, 1997, to exclude carpal tunnel syndrome and hearing loss as occupational diseases pursuant to Code Sec. 65.2-400, but to include them as ordinary diseases of life under Code  65.2-401.  See Code Sec. 65.2-400(C).  Accordingly, after July 1, 1997, hearing loss is within the purview of the Act.
    As early as 1943, in Aistrop v. Blue Diamond Coal Co., 181 Va. 287, 24 S.E.2d 546 (1943), the Court noted that "injury of gradual growth, . . . caused by the cumulative effect of many acts done or many exposures to conditions prevalent in the work, no one of which can be identified as the cause of the harm, is definitely excluded from compensation."  Id. at 293, 24 S.E.2d at 548 (quotation marks omitted).  Two years after the decision in Aistrop, the General Assembly amended the Act to include limited coverage for occupational diseases.  However, as the Court noted in Morris v. Morris, 238 Va. 578, 586, 385 S.E.2d 858, 863 (1989)(citing Lane Co. v. Saunders, 229 Va. 196, 199 n., 326 S.E.2d 702, 703 n.), despite many opportunities and the passage of what has now been over 50 years, the legislature "has made no change in the Aistrop rule with respect to injuries gradually incurred."  Moreover, in Western Elec. Co. v. Gilliam, 229 Va. 245, 247-48, 329 S.E.2d 13, 14-15 (1985)(internal footnote omitted), the Court stated: "Some contend that any disability arising out of and during the course of employment, including disabilities resulting from both injuries and diseases caused gradually by repeated trauma, should be made compensable under the Workers' Compensation Act.  But such a consequential decision, impacting as it must a broad spectrum of economic and social values, is a matter of public policy reserved to the original and exclusive jurisdiction of the General Assembly, and we will not trespass upon its domain."
    Additionally, the Court held that the Court of Appeals erred in holding that a torn rotator cuff muscle caused by repetitive trauma was compensable under the Act.  See Merillat Indus., Inc. v. Parks, 246 Va. 429, 436 S.E.2d 600 (1993).  Thus, from Aistrop in 1943 to Jemmott in 1996, the Virginia Supreme Court has consistently held that, whether characterized as an injury or a disease, if the job-related impairment "result[ed] from cumulative trauma caused by repetitive motion," it was not compensable under the Act.  Jemmott, 251 Va. at 199, 467 S.E.2d at 802.
    A particular claim may be non-compensable for one of two reasons: (1) it does not fall within the purview of the Act, or (2) while within the purview of the Act, certain defenses preclude recovery.  There is a significant difference between a claim arising within the purview of the Act that is subject to defenses and a claim that is not within the purview of the Act at all.  In the former case, there is no recourse to common law remedies; in the latter case, there is recourse to common-law remedies.  See Williams v. Garraghty, 249 Va. 224, 238, 455 S.E.2d 209, 218 (1995).
    A similar question was presented in Middlekauff v. Allstate Ins. Co., 247 Va. 150, 439 S.E.2d 394 (1994), which involved a claim of intentional infliction of emotional distress from cumulative incidents.  The trial court dismissed Middlekauff's tort action, holding that the exclusivity provision of Code Sec. 65.2-307 barred a common law suit.  The Virginia Supreme Court  reversed and held that: "Here, Middlekauff alleges a gradually incurred injury caused by cumulative events.  Specifically, she alleges a "pattern of abusive behavior," continuing over an extended period of time, and she states that this conduct caused her severe emotional distress.  Further, Middlekauff's pleadings do not allege an injury that can be construed as resulting from an obvious sudden mechanical or structural change in her body.  Therefore . . . we conclude that Middlekauff has not alleged such an injury within the purview of the Act. Id. at 153, 439 S.E.2d at 396.
    Accordingly, prior to July 1, 1997, hearing loss was not within the purview of the Act, the employees' common law right of action for damages for that injury is not impaired by the Act.  As the Court stated in Griffith v. Raven Red Ash Coal Co., 179 Va. 790, 798, 20 S.E.2d 530, 534 (1942): "Our conclusion is that the Workmen's Compensation Act is exclusive in so far as it covers the field of industrial accidents, but no further.  To the extent that the field is not touched by the statute, we think that the legislature intended that the employee's common-law remedies against his employer are to be preserved unimpaired."
    Code Sec. 65.2-700 which provides that "[a]ll questions arising under this title, if not settled by agreements of the parties interested therein with the approval of the Commission, shall be determined by the Commission, except as otherwise herein provided," does not compel that a claim not within the purview of the Act must first be submitted to the Commission for a determination of compensability.  Where it is clear on the face of the pleadings that a claim is not within the purview of the Act, it is not necessary for plaintiffs to submit their claims to the Commission.  Certified question number two from the federal district court assumes that the claim "is not compensable under and not barred by the Virginia Workers' Compensation Act."  Because the plaintiffs are not within the purview of the Act, they are not required to submit their claims to the Commission before pursuing their common-law causes of action.  Adams v. Alliant Techsystems, Record No. 002613 (April 20, 2001). WP Version.

Stenrich Group v. Jemmott, 251 Va. 186, 199, 467 S.E.2d 795, 802 (1996) (holding that "job-related impairments resulting from cumulative trauma caused by repetitive motion, however labeled or however defined, are, as a matter of law, not compensable under the present provisions of the Act" as injuries by accident or occupational diseases), and Middlekauff  v. Allstate Ins. Co., 247 Va. 150, 154, 439 S.E.2d 394, 397 (1994), reiterated the view that a gradually incurred injury is not an injury by accident within the meaning of the Act. This principle applies to all "cumulative trauma conditions, regardless of whether they are caused by repetitive motion." Allied Fibers v. Rhodes, 23 Va. App. 101, 104, 474 S.E.2d 829, 830 (1996). Both Jemmott and Middlekauff cite Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989), holding 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' within the meaning of Code Sec. 65.2-101. See Allied Fibers v. Rhodes, 23 Va. App. 101, 104, 474 S.E.2d 829, 830 (1996) (hearing loss resulting from prolonged exposure to industrial noise is a noncompensable gradually incurred injury—But see 1997 amendment to Sec. 65.2-400 (C) making hearing loss and CTS compensable as ordinary diseases of life.); Stenrich Group v. Jemmott, 251 Va. 186, 199, 467 S.E.2d 795, 802 (1996). Rhodes stressed that hearing loss "does not fit the classic definition of injury, namely a sudden event produced by immediate trauma," but, nevertheless, "'belongs under the general heading of traumatic injury because it is strictly a physical force.'" Id. at 103, 474 S.E.2d at 830 (quoting Attorney's Textbook of Medicine, Sec. 84.65 (Roscoe N. Gray & Louise Gordy, eds., 3d ed. 1995)). Prolonged physical force of the concrete floor against claimant's feet gradually caused her impairment, a non-compensable cumulative trauma.

Unless deemed compensable by the General Assembly, "cumulative trauma conditions, regardless of whether they are caused by repetitive motion, are not compensable under the Act." Allied Fibers v. Rhodes, 23 Va. App. 101, 104, 474 S.E.2d 829, 830 (1996),

The General Assembly, by enacting Code Sec. 65.2-402, expressly indicated its intent that occupational "heart disease" will be included as a compensable "disease." Even if all heart disease is caused gradually by the process of trauma, the General Assembly has expressly removed this ailment from those cumulative trauma conditions that are otherwise not compensable as a "disease" when it is incurred by the public servants enumerated in the statute. City of Hopewell v. Michael W. Tirpak, Record No. 1369-97-2 (July 28, 1998).

"In order to carry his burden of proving an 'injury by accident,' a claimant must prove that the cause of his injury was an identifiable incident or sudden precipitating event and that it resulted in an obvious sudden mechanical or structural change in the body." Morris v. Morris,, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989). While standing in a footing located sixteen to eighteen inches below ground, claimant reached and grabbed for a piece of plywood, twisting to his left. While bent over pulling the plywood towards him, he felt a burning pain in his lower back at about waist level. Claimant's account was corroborated by a co-worker and in part by his recorded statement. Credible evidence supports the commission's decision that claimant suffered an injury by accident arising out of and in the course of his employment. B&R Contractors, Inc. v. Willie M. Wethington, Jr., Record No. 0087-99-1 (June 15, 1999). WP Version.

Claimant and co-workers were moving heavy boxes of pipe fittings. Claimant and a co-worker were moving a box from a truck onto a mason's wheelbarrow, when the box slipped and all the weight shifted to claimant's side. After claimant held the box and placed it in the wheelbarrow, he felt pain in his groin, abdomen, and back. This version of events was supported by the testimony of claimant's co-workers and his reports to the doctor. Credible evidence supports the commission's finding that claimant suffered an injury by accident. Although claimant suffered from pre-existing degenerative disease, the commission found that claimant had been able to perform arduous labor for approximately four months until his January 13, 1997 injury by accident. Medical records and opinions, coupled with claimant's testimony, constitute credible evidence to support the commission's finding that claimant's disability was caused in part by the injury by accident. Tidewater Mechanical Contractors, Inc. v. Douglas Thomas, Record No. 0368-99-1 (June 15, 1999). WP Version.

A florist's gradually incurred allergic contact dermatitis is a compensable "disease" under the Act. First, holding that florist's allergic contact dermatitis qualifies as a disease would not threaten the coherence of the existing distinction between "injuries by accident" and "occupational diseases." The development of an allergic sensitivity to floral allergens cannot be confused with an "injury" because it is not a "mechanical or structural change in the body." Virginia Elec. and Power Co. v. Cogbill, 223 Va. 354, 356, 288 S.E.2d 485, 486 (1982) (stating that an injury is "an obvious . . . mechanical or structural change in the body"). Claimant's allergic contact dermatitis occurred as a result of exposure to a chemical contained in two flowers: alstroemeria and tulips. Through a process that involved neither "repetitive motion" nor "cumulative trauma," the chemical reacted with claimant's antibodies in a way that caused her immune system to develop a hypersensitivity to the chemical. Although claimant's allergic sensitivity to the allergen in these flowers had a physical manifestation -- the contact dermatitis on her hands and arms -- her underlying problem cannot be understood as an "injury." Unlike prior attempts to set forth all-purpose definitions of disease, narrowly holding that a florist's allergic contact dermatitis is within the General Assembly's intended meaning of "disease" does not render the two categories of ailments "unnecessary and meaningless," Holly Farms/Federal Co. v. Yancey, 228 Va. 337, 341, 321 S.E.2d 298, 300 (1984), or threaten to convert the Act into "a general plan of health insurance." Morris v. Morris, 238 Va. 578, 584, 385 S.E.2d 858, 862 (1989). A New Leaf, Inc. v. Elaine R. Webb, 257 Va. 190, 511 S.E.2d 102 (1999) WP Version.

"In order to carry [the] burden of proving an 'injury by accident,' a claimant must prove that the cause of [the] injury was an identifiable incident or sudden precipitating event and that it resulted in an obvious sudden mechanical or structural change in the body." Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989).The Commission properly denied benefits to a claimant who was unable to identify the specific movement or work activity, if any, that she was performing when she felt sudden pain. The claimant experienced the sudden onset of pain after about two hours of continuous rapid-paced work as a cashier. Claimant could not recall what identifiable incident or action on her part occurred at the time she experienced sudden pain and there is nothing in the record to prove "an identifiable incident or sudden precipitating event" as the cause of claimant's injury, a rotator cuff tear. Mario L. Calvano, Executor, et al. v. Wal-Mart, etc., Record No. 1597-98-4 (April 20,1999). WP Version.

    The commission found as established fact that claimant sufficiently identified: (1) the particular time, place and occasion of the injury; (2) the identifiable incident which caused the injury; and (3) a mechanical or structural change in his body.  On February 4, 1999, while claimant was on his knees for forty-five minutes pulling fabric loose, Harris experienced pain in both knees. As soon as he exited the hole, Harris reported the incident and the pain to his supervisor. Harris also denied experiencing any pain in his knees prior to the incident on February 4.  The commission concluded that Harris's claim was not defeated by his inability to identify the specific piece of fabric which, when pulled, caused the injury.  Medical testimony in the case, including that provided by Drs. Settle and Aitken, established that claimant's knee injury was due to the February 4, 1999 incident, the latter physician opining that the incident "probably caused or exacerbated meniscal tears in his knees that resulted in symptoms of pain." Although Harris may have had pre-existing arthritis and a degenerative condition of his knees, the condition was materially aggravated as a result of the injury he sustained when he disengaged the wrap-up of fabric on February 4, 1999. On that date, he suffered a meniscal tear that caused disabling pain in his knees for the first time. Such an injury is compensable. Olsten of Richmond v. Leftwich, 230 Va. 317, 319-20, 336 S.E.2d 893, 895 (an injury by accident which materially aggravates or accelerates a pre-existing condition is compensable); see also Ohio Valley Constr. Co. v. Jackson, 230 Va. 56, 58, 334 S.E.2d 554, 555 (1985).
    [T]o establish an "injury by accident," a claimant must prove (1) that the injury appeared suddenly at a particular time and place and upon a particular occasion, (2) that it was caused by an identifiable incident or sudden precipitating event, and (3) that it resulted in an obvious mechanical or structural change on the human body. Southern Express v. Green, 257 Va. 181, 187, 509 S.E.2d 836, 839 (1999); see also Combs v. Virginia Elec. & Power Co., 259 Va. 503, 508, 525 S.E.2d 278, 281 (2000).
    Goodyear contends claimant did not prove an "injury by accident." Goodyear focuses on the period of time claimant worked when the injury occurred, and on the fact he was on his knees for some forty-five minutes. Proceeding from those facts, Goodyear contends the injury in question was gradually incurred, see, e.g., Kraft Dairy Group, Inc. v. Bernardini, 229 Va. 253, 329 S.E.2d 46 (1985), and that the incident claimed to precipitate the compensable injury was not sufficiently "bounded with rigid temporal precision" to meet the definition of "injury by accident." See, e.g., Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 864 (1989). Goodyear's contention is refuted by two Virginia Supreme Court holdings, Green, 257 Va. 181, 509 S.E.2d 836, and Combs, 259 Va. 503, 525 S.E.2d 278. In both cases, the causative "incidents" were not instantaneous but, rather, continued over a period of four hours and two hours, respectively.
    In Green, the employee had worked for four hours stacking drinks in a walk-in cooler at a convenience store. While working in the cooler, the employee developed chilblains, resulting from her exposure to the cold temperature in the cooler. In finding that the employee had suffered an "injury by accident," the Virginia Supreme Court stated: The evidence in this case shows that Green's chilblains were not an "injury of gradual growth . . . caused by the cumulative effect of many acts done or many exposures to conditions prevalent in the work, no one of which can be identified as the cause of the harm . . . ." Instead, the chilblains were "the result of some particular piece of work done or condition encountered on a definite occasion . . . ." In other words, Green's chilblains resulted from a single exposure to cold temperature on a definite occasion during the performance of a specific piece of work, i.e., an "identifiable incident." It was not caused by repeated exposures over a period of months or years. Green, 257 Va. at 189, 509 S.E.2d at 841 (citations omitted). 
    In Combs, the employee had developed a severe headache during an aerobics class held on company property. The employee was taken to the employer's employee health services "quiet room," where she was left unattended. Two hours after she had been placed in the "quiet room," the employee was found covered in vomit, in a coma-like state. The employee was taken to the hospital where doctors concluded she had suffered a brain aneurysm. In finding that the employee had suffered a compensable "injury by accident," the Virginia Supreme Court stated: "Combs' injury is not the aneurysm itself. Instead, her injury is the aggravation, exacerbation and/or acceleration of the aneurysm. That injury resulted from the alleged negligent emergency medical care, or lack thereof, that she received from Virginia Power and its EHS employees after she suffered a severe headache during the aerobics class.... The particular time, place, and occasion of her injury was at the EHS "quiet room" in Virginia Power's Richmond office, during the two to three hours that elapsed from when she first developed the headache and was taken to the "quiet room" until she was transported to the hospital. The identifiable or precipitating event was the alleged negligent emergency medical treatment that she received during this span of time. Finally, Combs' paralysis and cognitive brain damage represent the mechanical or structural changes in her body that resulted from her injury. Thus, all the requirements of an "injury by accident" are present in this case." Combs, 259 Va. at 508-09, 525 S.E.2d at 281-82.
    Code Sec. 65.2-600(D) requires an employee to give written notice of an accident to the employer within thirty days of the occurrence of the accident. However, written notice is unnecessary if the employer has actual notice through a foreman or other superior officer. Newport News Shipbuilding & Dry Dock Co. v. Barnes, 32 Va. App. 66, 70, 526 S.E.2d 298, 300 (2000); Kane Plumbing, Inc. v. Small, 7 Va. App. 132, 138, 371 S.E.2d 828, 832 (1988). Additionally, compensation will not be barred for failure to give timely notice unless the employer can prove it was prejudiced by such lack of notice. Code Sec. 65.2-600(E). In this case, although claimant did not seek medical treatment until March 28, 1999, and did not file an accident report until that date, his supervisor, Frank Van Valkenburg, admitted that claimant immediately reported the incident and the injury to him on February 4, 1999. Thus, claimant provided timely notice of his injury. Additionally, Goodyear has made no allegation that it was prejudiced by the absence of timely written notice.  Goodyear Tire & Rubber Company v. Harris, Record No. 1631-00-3 (March 27, 2001). WP Version. 

In United Airlines, Inc. v. Walter, 24 Va. App. 394, 396-97, 482 S.E.2d 849, 850-51 (1997), the Court of Appeals held that photosensitivity to fluorescent lighting is an injury rather than a disease.

Simple acts of bending over, reaching, stooping, turning, etc. To recover benefits, claimant must establish an "injury by accident arising out of and in the course of [her] employment," Code Sec. 65.2-101, and "that the conditions of the workplace or some significant work related exertion caused the injury." Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989). "The phrase arising 'out of' refers to the origin or cause of the injury." County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989). "Whether an injury arises out of the employment is a mixed question of law and fact and is reviewable by the appellate court." Plumb Rite, 8 Va. App. at 483, 382 S.E.2d at 305.

Standing up after bending. The Workers' Compensation Commission erred when it ruled that claimant sustained a compensable injury arising out of his employment on May 26, 1998. Claimant went to a table and lifted a food tray, which held an empty bowl and plate and weighed approximately ten pounds or less. He then twisted to his side and bent from the waist to place the tray in the cart. Because the top of the cart was full, he had to bend to a point approximately twelve inches above floor level to slide the tray into an empty slot. As Ellis stood up, his back went out.  "In order to be compensable, . . . the injury 'must also arise out of the employment; the injury must be caused by the conditions of the workplace.' The claimant must 'prove by a preponderance of the evidence that the accident "arose out of and in the course of his employment[.]"'" Vint v. Alleghany Regional Hosp., 32 Va. App. 60, 63, 526 S.E.2d 295, 297 (2000) (citations omitted). Whether an injury arose out of the employment is a mixed question of law and fact properly reviewable by this Court. Norfolk Community Hosp. v. Smith, 33 Va. App. 1, 4, 531 S.E.2d 576, 578 (2000). In making these determinations, "Virginia employs the actual risk test. A claimant's injury arises out of the employment if the manner in which the employer requires the work to be performed is causally related to the resulting injury." Vint, 32 Va. App. at 63-64, 526 S.E.2d at 297. As the commission noted in its opinion "in Brown v. Caporaletti, 12 Va. App. 242, 402 S.E.2d 709 (1991) the employee spent about five minutes in a bent over position [working on a furnace,] and sustained an injury to his back while straightening up. The Court held that the injury was compensable [, because] [a]lthough he was merely straightening up at the time of the injury, this was connected to the previous activities of the claimant [laying the 100 pound furnace on its side]." We found that these activities were "peculiar to his work." Brown, 12 Va. App. at 245, 420 S.E.2d at 711. However, we have specifically held that "[a]n injury does not arise out of the employment when it 'cannot fairly be traced to the employment as a contributing proximate cause and . . . comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood.'" Vint, 32 Va. App. at 63-64, 526 S.E.2d at 297. Put another way, an injury is not compensable merely because it occurred during the performance of some employment duty if the act performed by the employee is not a causative hazard of the employment. Simple acts of walking, bending, or turning, without any other contributing environmental factors, are not risks of employment.  Here claimant was injured after bending to pick up the tray. The action of bending was neither unusual, awkward, nor something that claimant was required to do on a repetitive basis. Grove v. Allied Signal, Inc., 15 Va. App. 17, 21-22, 421 S.E.2d 32, 34-35 (1992); see also Vint, 32 Va. App. at 65-66, 526 S.E.2d at 297-98. In such cases, we have held that "[a]n injury resulting from merely bending over to do something does not arise out of the employment . . . [because] merely bending over is a risk to which the general public is equally exposed." Vint, 32 Va. App. at 65-66, 526 S.E.2d at 297-98. Our Supreme Court has noted that in an appropriate case, "[i]t is generally held . . . that the words 'arising out of and in the course of employment' should receive a liberal construction in order to carry out the humane and beneficent purposes of the act." Bradshaw v. Aronovitch, 170 Va. 329, 336, 196 S.E. 684, 686 (1938). However, we have recognized that these words "cannot be liberalized by judicial interpretation for the purpose of allowing compensation on every claim asserted." Vint, 32 Va. App. at 63, 526 S.E.2d at 297 (emphasis added). "[A] claimant [must] show that the conditions of the workplace or that some significant work related exertion caused the injury." Plumb Rite Plumbing Service v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989). The record contains no such showing, and the mere happening of an accident at the workplace, not caused by any work-related risk or significant work-related exertion, is not compensable. Id. Southside VA Training Ctr/CW v. Frederick W. Ellis, Record No. 0659-00-2 (November 21, 2000). WP Version.

Simple movements—Factors. If claimant’s movement was not shown to be obstructed, confined, cramped, restricted, to involve significant exertion, or made difficult or awkward in any way by the work environment, it will not be presumed that a back injury from bending to pick up a piece of paper "arises out of" the employment. If the evidence establishes that claimant did not engage in any significant exertion, that the action of bending did not involve any awkward position, and that no condition or hazard peculiar to the workplace caused claimant’s injury, aside from the usual act of bending and picking up a piece of paper, claimant fails as a matter of law to prove that the injury arose out of the employment. Wilhelminia Lee v. City of Portsmouth School Board, No. 1254-96-1 (Ct. of Appeals, Dec. 17, 1996). If no condition of the workplace or additional exertion necessitated by work, aside from the usual act of turning one's head to look at another person, caused the injury, the injury did not arise out of employment. Jeffrey Mitchell Weakley v. A. Geer & Sons, Inc., No. 1294-95-2 (Ct. of Appeals, Oct. 31, 1995). In First Fed. Sav. and Loan v. Gryder, 9 Va. App. 60, 383 S.E.2d 755 (1989) the Court specifically noted that if claimant had been only working at her desk and felt a sharp pain when she "twisted," she would not have been permitted to recover. If claimant's injury was caused solely by his twisting, the conditions of the work place had nothing to do with the injury he sustained. See Plumb Rite Plumbing Service v. Barbour, 8 Va. App. 482, 382 S.E.2d 305 (1989).

"In order to carry [the] burden of proving an 'injury by accident,' a claimant must prove that the cause of [the] injury was an identifiable incident or sudden precipitating event and that it resulted in an obvious sudden mechanical or structural change in the body." Morris v. Morris, 238 Va. 578, 589, 385S.E.2d 858, 865 (1989). "An accident may be said to arise out of and in the course of the employment if the exertion producing the accident is too great for the man undertaking the work, even though the degree of the exertion is usual and ordinary and 'the workman had some predisposing weakness.' . . . 'The question is not whether it would affect the ordinary man, but whether it affected the [employee.]'" Russell Loungewear v. Gray, 2 Va. App. 90, 94, 341 S.E.2d 824, 826 (1986) (citations omitted)). If an aggravation of a pre-existing condition was caused by an identifiable incident that resulted in an obvious sudden mechanical or structural change in his body, the evidence proved that the '"causative danger . . . had its origin in a risk connected with the employment, and . . . flowed from that source as a rational consequence."' That the activity was usual, and did not require exertion, and that the injury was not 'foreseen or expected' are irrelevant." Grove v. Allied Signal, Inc., 15 Va. App. 17, 22, 421 S.E.2d 32, 35 (1992) (citation omitted)."'[T]he employer takes the employee as he is and if the employee is suffering some physical infirmity, which is aggravated by an industrial accident, the employer is responsible for the end result of such accident.'" McDaniel v. Colonial Mechanical Corp., 3 Va. App. 408, 414, 350 S.E.2d 225, 228 (1986) (citation omitted).

Another employee was walking briskly, with her head turned away from claimant, and collided with claimant as she spoke to another employee in a hallway.  Credible evidence supports the commission's factual findings and related conclusion that claimant's injuries were caused by an actual risk of employment. The issue is not whether the accident is of the type that occur outside the workplace; the issue is whether the workplace, in the particular situation at hand, exposed the claimant to the risk of injury. In this case, the injury was caused by the inattentiveness of a co-employee. Accidents due to the negligence of co-workers historically have been found to arise out of the employment. See Goodyear Tire &Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987); Eastern State Hospital  v. Tenia P. Roberson, Record No. 2211-98-1 (January 19, 1999).

Immediate onset of pain not required. That claimant did not experience back pain until the morning after the incident is not fatal to the claim. Morris v. Morris, 238 Va. 578, 385 S.E.2d 858 (1989) did not require a showing of immediate onset of the symptoms of the injury. Hercules, Inc. v. Gunther, 13 Va. App. 357, 364 n.2, 412 S.E.2d 185, 189 n.2 (1991).

New Injury by Accident vs. Change in Condition. This issue may arise in cases where the different statutes of limitations for an injury by accident and change in condition may produce different results and in cases where the insurer at the time of the original injury by accident is different from the insurer at the time when the alleged change in condition arises. A change in condition is a condition flowing from a progression, deterioration or aggravation of the injury sustained in the original accident. A condition or injury resulting from a new and separate accident is not a change in condition. Leonard v. Arnold, 218 Va. 210, 237 S.E.2d 97 (1977).

No new injury by accident where claimant's older injury had not healed. On April 13, 1995, claimant sustained a compensable lower back injury while working as a process specialist for Amoco Foam Products Company, which was purchased by Tenneco Packaging in 1996. Claimant then settled her claim and the commission approved the settlement. Claimant suffered from intermittent back pain thereafter. On February 11, 1997, she felt lower back pain while trying to push a cart after it had become stuck. Claimant reported that "it was the same thing as before," and  that her old back injury had "flared up on her." Her doctor diagnosed a "[r]e-aggravation of low back strain" and noted that Patrick had suffered from left leg pain in the past as well as back pain. He stated claimant had a recurrence or exacerbation of her pre-existing lower back problems and that this did not constitute a new and separate injury. He believed claimant experienced a re-aggravation of her chronic lumbar strain that had initially occurred on April 13, 1995. He also stated she had "no new mechanism of injury." "In order to carry [the] burden of proving an 'injury by accident,' a claimant must prove that the cause of [the] injury was an identifiable incident or sudden precipitating event and that it resulted in an obvious sudden mechanical or structural change in the body." Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989). "[A]ggravation of an old injury or pre-existing condition is not, per se, tantamount to a new 'injury.' To be a 'new injury,' the incident giving rise to the aggravation must in itself, satisfy each of the requirements for an 'injury by accident arising out of . . . the employment.'" First Federal Savings & Loan Ass'n v. Gryder, 9 Va. App. 60, 63, 383 S.E.2d 755, 757-58 (1989). The evidence proved claimant never fully recovered from the 1995 lower back injury and continued to experience chronic pain and exacerbations of her back condition. Credible medical evidence proved that the February 11 event caused a "[r]e-aggravation of [Patrick's existing] low back strain" that was merely an ever worsening of her original injury. Credible evidence supports the commission's conclusion that claimant's post-February 11, 1997 lower back pain and disability did not result from a new compensable injury by accident. Carolyn J. Patrick v. Tenneco Packaging, Record No. 0201-99-3 (June 15, 1999). WP Version.

Psychological Injury. Claimant was trapped in an elevator for two hours and claimed post traumatic stress syndrome (PTSD) as a result. Claimant did not suffer from claustrophobia and did not require any immediate medical treatment after the incident. "To qualify as a compensable injury by accident, a purely psychological injury must be causally related to a physical injury or to a sudden shock or fright arising in the course of employment." Id. at 88, 515 S.E.2d at 349 (citing Chesterfield County Fire Dept. v. Dunn, 9 Va. App. 475, 477, 389 S.E.2d 180, 182 (1990) (citing Burlington Mills Corp. v. Hagood, 177 Va. 204, 209-11, 13 S.E.2d 291, 293-94 (1941))). Specifically, "post-traumatic stress disorder is a compensable injury" within the meaning of the workers' compensation statute "if caused by either a physical injury or an obvious sudden shock or fright arising in the course of employment." Daniel Constr. Co. v. Tolley, 24 Va. App. 70, 77, 480 S.E.2d 145, 148 (1997). In the present case, the incident of August 11, 1997, as described by claimant, does not rise to the level of an obvious fright or sudden shock as contemplated in Hercules v. Gunther, 13 Va. App. 357, 412 S.E.2d 185 (1991), or Burlington Mills Corp. v. Hagood, 177 Va. 204, 13 S.E.2d 291 (1941). The evidence supports the commission's determination that although claimant may have experienced "discomfort and anxiety" from being trapped in the elevator for two hours, the event was not "unexpected, shocking, or catastrophic" so as to qualify as a compensable psychological injury. Credible evidence also supports the commission's determination that claimant failed to prove she suffered from a compensable occupational disease. Here, the medical evidence demonstrated a long-term history of psychological problems, the death of the claimant's father shortly before she was trapped in the elevator, and the commission was not required to accept the opinion of the treating physician when countered by other evidence. Accordingly, the commission did not err in finding that claimant's PTSD was not an aggravation of an ordinary disease of life. See Owens v. Virginia Dept. of Transp., 30 Va. App. 85, 88, 515 S.E.2d 348, 349 (1999) (holding that the sound of a falling utility cover was not an unexpected event and that the evidence was insufficient to prove an aggravation of claimant's pre-existing PTSD). Linda L. Hill v. Travelodge and Selective Ins. Co., Record No. 0653-99-2 (December 28, 1999). WP Version.

Psychological disability caused by conflicts with supervisors and disagreement with management decisions or "a pattern of abusive behavior" is not an injury by accident. Teasley v. Montgomery Ward, 14 Va. App. 45, 415 S.E.2d 596 (1992); Middlekauff v. Allstate Ins. Co., 247 Va. 150, 439 S.E.2d 394 (1994).

Injury from Coworker's Friendly Clap on the Back not Compensable. While in the course of his employment as a police officer, claimant was approached by another police officer, who clapped claimant on the back and lower neck, as a form of greeting, without any intention to hurt claimant. Claimant felt immediate pain and later sought medical treatment for injuries sustained as a result of the incident. No evidence indicated that the officer who "clapped" claimant on the back and neck did so with any intent to engage in playful or prankish behavior, such that his actions could be considered horseplay. A clap on the back in greeting is more akin to the friendly "goosing" in [Richmond Newspapers v.] Hazelwood, [249 Va. 369, 457 S.E.2d 56 (1995)] than it is to horseplay, which is defined as "rough or boisterous play or pranks. "In addition, no evidence brought this case within the ambit of a compensable assault case. Rather, the undisputed evidence proved that the injury was caused by the personal greeting of one police officer to another and did not arise from an actual risk connected with claimant's employment. Contrary to claimant's argument, no evidence showed that the greeting was directed at claimant because of his employment as a police officer or that it benefited the employer in any manner. Accordingly, claimant's evidence did not sustained his burden of proving that his injury arose out of his employment. Donald James Johnson v. County of Henrico Police, Record No. 2266-99-2 (January 18, 2000). WP Version.

In light of the inconsistencies between claimant's testimony and his prior statements, his medical records, and the accident report, the Commission was entitled to reject his account at hearing of an identifiable incident of lifting. Bobby Morton v. Servicemaster Consumer Service, Record No. 2326-98-2 (May 4, 1999). WP Version.

In McMurphy Coal Co. v. Miller, 20 Va. App. 57, 59, 455 S.E.2d 265, 266 (1995), the Court of Appeals held that under common law rules of evidence, medical histories are admissible substantively as party admissions. Thereafter, the Court of Appeals recognized in Pence Nissan Oldsmobile v. Oliver, 20 Va. App. 314, 456 S.E.2d 541 (1995), that, under Rule 2.2 of the Rules of the Workers' Compensation Commission, the commission may consider medical histories in determining how an accident occurred. Rule 2.2 gives the commission "'[t]he discretion to give probative weight to hearsay statements in arriving at its findings of fact.'" Oliver, 20 Va. App. at 319, 456 S.E.2d at 544 (quoting Williams v. Fuqua, 199 Va. 709, 714, 101 S.E.2d 562, 566 (1958)). Bobby Morton v. Servicemaster Consumer Service, Record No. 2326-98-2 (May 4, 1999). WP Version.

To establish a prima facie claim for compensation for an "injury by accident" arising out of and in the course of the employment, the claimant must prove, by a preponderance of the evidence, (1) an identifiable incident, (2) that occurred at some reasonably definite time, (3) with an obvious, sudden mechanical or structural change in the body, and (4) a causal connection between the incident and the bodily change.  See Code Sec. 65.2-101; Chesterfield County v. Dunn, 9 Va. App. 475, 476, 389 S.E.2d 180, 181 (1990); Aistrop v. Blue Diamond Coal Co., Inc., 181 Va. 287, 293, 24 S.E.2d 546, 548 (1943).  "[A]n injury resulting from cumulative trauma caused by physical exertions inherent in the employee's normal work is not an 'injury by accident,' compensable under the Worker's Compensation Act."  Kraft Dairy Group, Inc. v. Bernardini, 229 Va. 253, 256, 329 S.E.2d 46, 48 (1985). A patient's medical history [I]s admissible to explain the basis of the doctor's opinion, or to impeach (as with a prior inconsistent statement), or to corroborate (as with a prior consistent statement) the claimant's testimony.  Also, if a claimant has given a history that negates the hearing proof of a compensable injury, then such history would constitute an admission by a party, admissible when offered by an adverse party as an exception to the hearsay rule. McMurphy Coal Co. v. Miller, 20 Va. App. 57, 59, 455 S.E.2d 265, 266 (1995) (citation omitted). As in McMurphy, the commission in this case "should have considered the medical histories . . . because the histories contradicted [claimant's] hearing testimony of how the accident occurred."  Id. at 59, 455 S.E.2d at 267.  As in McMurphy, "[b]y failing to consider these statements, the commission ignored relevant evidence that supported the appellant['s] position and, when coupled with other evidence, this action may have affected the outcome of this case."  Id. at 60, 455 S.E.2d 267  For this reason, the case is remanded for review by the commission so it may properly consider all relevant evidence. Southside Virginia Training Ctr. v. Jones, Record No. 2898-98-2 (January 11, 2000). WP Version.

The Workers' Compensation Commission did not err in finding that claimant proved an injury by accident arising out of her employment. Claimant operated an end trim saw in employer's factory. On August 10, 1998, at 1:00 p.m., as McGhee was moving a pallet from underneath the saw, the pallet fell into a hole. When claimant "jerked" the pallet to remove it from the hole, she "popped [her] back." She did not experience pain at that time. Several hours later, when she arose from a sofa at home, she felt pain in her back. She  returned to work the next day, but left work after an hour because of back pain. Claimant returned to work a week later, although her back was still hurting her. When she "jerked" a pallet that fell into a crack, her back "pop[ped]" again. Claimant obtained the assistance of a co-worker and then reported the August 10, 1998 incident. Claimant's doctor diagnosed her as having a lumbar strain and lumbosacral joint sprain. Before August 10, 1998, McGhee had no history of back pain or back problems. An "injury by accident" requires "(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." Chesterfield County v. Dunn, 9 Va. App. 475, 476, 389 S.E.2d 180, 181 (1990). "[P]ain does not have to be contemporaneous with the accident to be an injury by accident." Ratliff v. Rocco Farm Foods, 16 Va. App. 234, 239, 429 S.E.2d 39, 42 (1993). The medical records contain a history consistent with claimant's testimony. The commission could reasonably find that claimant sustained an obvious sudden mechanical or structural change when her back "popped" on August 10, 1998 at work and that later she exacerbated the injury at home and when she returned to work on August 18, 1998. Marley Mouldings, Inc. v. Patricia McGhee, Record No. 2272-99-3 (February 15, 2000). WP Version.

The Workers' Compensation Commission did not err in finding that claimant failed to prove  he sustained an injury by accident arising out of and in the course of his employment on November 12, 1997. "In order to carry [the] burden of proving an 'injury by accident,' a claimant must prove that the cause of [the] injury was an identifiable incident or sudden precipitating event and that it resulted in an obvious sudden mechanical or structural change in the body." Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989). Neither claimant's supervisor nor the medical records  corroborate claimant's testimony of an incident on November 12, 1997. Claimant also did not know how the accident happened. Although there is no doubt that claimant suffers back pain and symptoms, the evidence does not establish that his condition arose from a work-related incident on November 12, 1997, which is the alleged accident under consideration. Marshall R. Braithwaite v. Smalley Package Co., Record No. 2506-99-4 (February 15, 2000). WP Version.

Slip on wet step. The Workers' Compensation Commission (commission) did not err in finding that claimant proved that she sustained an injury by accident arising out of her employment on October 9, 1997, when she slipped on a wet step. The phrase "arising out of" refers to the origin or cause of the injury. County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989). To prevail, claimant must "show that the conditions of the workplace . . . caused the injury." Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989). Claimant fell while ascending aluminum steps outside a trailer where employer stored cleaning materials that claimant needed in order to perform her work. It had rained approximately one hour before the accident and, according to claimant's undisputed testimony, the steps were wet from the rain, which caused her to slip and fall. The surface of each stair was covered with holes punched up from underneath, which created a raised jagged surface. However, there were no holes within one inch of the front edge of the stair where the tread met the riser. Claimant stated that she had not placed her entire foot on the stair's tread, but rather just the front part of the bottom of her foot was on the edge of the stair when her foot slipped, causing her to strike her knee on the stair and fall backwards injuring her back and knee. It was the nature of claimant's employment that placed her on the wet steps, which resulted in her fall. Credible evidence proved that the conditions of the workplace, i.e., the wet stairs, caused the claimant's injury. A C M v. Martinez, Record No. 1500-99-2 (February 22, 2000). WP Version.

Fall on Stairs. The commission applied the incorrect standard to determine compensability in awarding benefits to claimant. The commission also erred in finding claimant's injury arose out of her employment. in order for a fall on stairs to be compensable there must either be a defect in the stairs or claimant must have fallen as a result of a condition of the employment. Southside Virginia Training Center/Commonwealth of Virginia v. Shell, 20 Va. App. 199, 203, 455 S.E.2d 761, 763 (1995).  See also Memorial Hospital v. Hairston, 2 Va. App. 677, 347 S.E.2d 527 (1986). Therefore, the commission erred when it ruled that the defect must be associated with the employment. Rather, the steps must either be defective or a condition of the employment must cause the injury. In this case, the commission factually found no defect in the top step. Therefore, in order for claimant's injury to be compensable, it must have resulted from a condition of her employment. In Shell, claimant fell while traversing steps on her way to retrieve a medical file. Shell, 20 Va. App. at 201, 455 S.E.2d at 762. Claimant admitted there was nothing unusual about the steps and that she fell when she turned to look at a client who was "'recreating.'" Id. Claimant did not state "the client was the direct cause of her inadvertence to the stairs." Id. at 203, 455 S.E.2d at 763. The court found no defect in the stairs and no evidence that claimant was hurried or distracted by her employment duties. Id. at 203-04, 455 S.E.2d at 763-64. The Court of Appeals concluded a condition of the employment did not cause claimant to fall on the stairs and, therefore, the injury did not arise out of her employment.
      Conversely, the court found a compensable injury in Marion Correctional Treatment Center v. Henderson, 20 Va. App. 477, 458 S.E.2d 301 (1995). In Henderson, claimant, a correctional officer, fell down a set of stairs while he watched the tower guard for acknowledgment. Id. at 479, 458 S.E.2d at 302. The Court of Appeals wrote: Observation of the guard towers was one of the security functions of his employment. The way in which he performed this aspect of his job increased the risk of falling on this occasion and directly contributed to cause his fall and injury. He would not have been equally exposed to the risk apart from his duty to observe the guard towers and provide security at the facility. Id. at 480-81, 458 S.E.2d at 303. 
    In this case, although the commission concluded that a condition of the employment caused claimant's injury, nothing in the record supports that conclusion. The commission wrote that because claimant's heel "got caught in the riser," the injury was caused by a condition of the employment. The commission's analysis must be rejected that such was a condition of the employment. Because the commission found no defect in the steps and because nothing in the record supports the commission's holding that the injury occurred as the result of a condition of the employment,  the injury did not arise out of the employment. County of Buchanan School Bd. v. Diana Horton,  Record No. 1750-00-3 (March 6, 2001). WP Version.

Injury During Exercise Class Aggravated at Employee Health Services. VWC Has Exclusive Jurisdiction. Employee suffered an "injury by accident arising out of and in the course of . . . employment," Code Sec. 65.2-101. Employer arranged for an independent instructor to teach an aerobics class at its Richmond office for the benefit of its employees. Participation in the class by employer's employees was voluntary. Employer advertised the class on its bulletin boards and in its newsletter. It did not charge for the use of its facility, but participating employees were required to pay a fee to the instructor for the class. Claimant participated in the aerobics class during her lunch hour, and, while doing so, developed a severe headache. When Combs' head pain did not subside, she was taken to the Employee Health Services ("EHS") "quiet room" to rest. The "quiet room" is used by employees who become ill at work, or by recuperating employees who have returned to work after an accident or illness and need to rest during the workday. When an employee is using the room, an EHS staff member is required to be in the office, and the employee is to be checked at regular intervals. Claimant was not examined by any medical personnel and was not checked at regular intervals. Two hours later claimant was discovered in a coma-like state. Claimant was taken to the hospital and was diagnosed with intracranial bleeding, a right giant middle cerebral aneurysm, and an intraparenchymal hemorrhage. The aggravation and acceleration of claimant's' pre-existing aneurysm was "an injury by accident arising out of and in the course of her employment", and her action in Circuit Court alleging negligence in employer's operation of EHS was therefore barred by the exclusivity provision of the Act. "An injury is subject to the exclusivity provision of the Act if it is the result of an accident and arises out of and in the course of the employment." Richmond Newspapers, Inc. v. Hazelwood, 249 Va. 369, 372, 457 S.E.2d 56, 58 (1995). Thus, the critical inquiry is whether claimant's injury was (1) an injury by accident, (2) arising out of, (3) and in the course of, her employment. See Code Sec. 65.2-101; Briley v. Farm Fresh, Inc., 240 Va. 194, 197, 396 S.E.2d 835, 836 (1990). If any one of these elements is missing, then claimant's claim is not covered by the Act, Snead v. Harbaugh, 241 Va. 524, 526, 404 S.E.2d 53, 54 (1991), and she can proceed with her personal injury claim in the circuit court. (1) Injury by Accident. This Court recently addressed the requirements of an "injury by accident" in Southern Express v. Green, 257 Va. 181, 509 S.E.2d 836 (1999). There, the Court held that an "injury by accident" occurs when the injury appears "suddenly at a particular time and place[,] and upon a particular occasion[;]" when it is "caused by an identifiable incident [,]or sudden precipitating event[;]" and when the injury results "in an obvious mechanical or structural change in the human body." Id. at 187, 509 S.E.2d at 839. All these factors were present with regard to claimant's injury (the aggravation, exacerbation, and/or acceleration of the aneurysm resulting from the alleged negligent emergency medical care, or lack thereof, that she received from EHS employees after she suffered a severe headache during the aerobics class). According to claimant's Circuit Court Motion for Judgment, the particular time, place, and occasion of her injury was at the EHS "quiet room" in employer's Richmond office, during the two to three hours that elapsed from when she first developed the headache and was taken to the "quiet room" until she was transported to the hospital. The identifiable or precipitating event was the alleged negligent emergency medical treatment that she received during this span of time. Finally, Combs' paralysis and cognitive brain damage represent the mechanical or structural changes in her body that resulted from her injury. Thus, all the requirements of an "injury by accident" are present in this case. See Winn v. Geo. A. Hormel & Co., 560 N.W.2d 143, 149 (Neb. 1997)(holding that negligent medical treatment at employer's first-aid medical facility may constitute "accident"). (2) Arising out of. The phrase "arising out of" pertains to the origin or cause of an injury. County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989); Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938). In determining whether an injury arises out of employment, the Virginia Supreme Court has repeatedly quoted with approval the test enunciated in In re Employers' Liab. Assur. Corp., Ltd., 102 N.E. 697 (Mass. 1913). An injury arises "out of" the employment, when there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises "out of" the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence. Id. at 697; accord Lucas v. Lucas, 212 Va. 561, 563, 186 S.E.2d 63, 64 (1972); Conner v. Bragg, 203 Va. 204, 208-09, 123 S.E.2d 393, 396-97 (1962); Bradshaw, 170 Va. at 335, 196 S.E. at 686. In Virginia, we apply an "actual risk test," meaning that the employment must expose the employee to the particular danger causing the injury, notwithstanding the public's exposure generally to similar risks. Lucas, 212 Va. at 563, 186 S.E.2d at 64. Thus, if there is a causal connection between Combs' injury and the conditions of her employment, then her injury arose out of her employment. See United Parcel Serv. of Am. v. Fetterman, 230 Va. 257, 258, 336 S.E.2d 892, 893 (1985) ("An accident arises out of the employment when there is a causal connection between the claimant's injury and the conditions under which the employer requires the work to be performed."). The risk of employment was the alleged negligent emergency medical treatment by EHS personnel, which aggravated her pre-existing aneurysm. Claimant was exposed to this risk or condition of employment solely because she was an employee. The public generally would not have been exposed to the same risk because only employees could utilize EHS. This caser is distinguishable from Taylor v. Mobil Corp., 248 Va. 101, 444 S.E.2d 705 (1994). In Taylor, an employee visited a doctor at his employer's clinic for treatment of a heart condition. The employee ultimately suffered a fatal heart attack at home although the doctor had advised him that he was not suffering from heart disease. Id. at 103-04, 444 S.E.2d at 706-07. This Court concluded that the employee's risk of exposure to negligent treatment by the doctor was not an actual risk of employment because the employee voluntarily opted to use the doctor at the employer's clinic. He was not required to do so by his employer, nor was he treated by that doctor because he became ill at work. Id. at 107, 444 S.E.2d at 708. In contrast, claimant suffered her severe headache while participating in the aerobics class at employer's office. While taking part in that class was not required by employer, EHS personnel treated claimant because of her status as an employee. In fact, the aerobics instructor called EHS when claimant became ill because the EHS coordinator had directed the instructor to do so. Thus, the risk that led to claimant's injury was part of her work environment. See Briley, 240 Va. at 198, 396 S.E.2d at 837. Additionally, "When an injury sustained in an industrial accident accelerates or aggravates a pre-existing condition, death or disability resulting therefrom is compensable under the Workers' Compensation Act." Ohio Valley Const. Co. v. Jackson, 230 Va. 56, 58, 223 S.E.2d 554, 555 (1985). (3) Course of  employment. Claimant's pre-existing aneurysm united with an actual risk of her employment to produce her injury. "The phrase arising `in the course of' [employment] refers to the time, place, and circumstances under which the accident occurred." Johnson, 237 Va. at 183, 376 S.E.2d at 74. "An accident occurs `in the course of the employment' when it takes place within the period of the employment, at a place where the employee may reasonably be, and while he is reasonably fulfilling duties of his employment or engaged in doing something incidental thereto." Bradshaw, 170 Va. at 335, 196 S.E. at 686; accord Lucas, 212 Va. at 563, 186 S.E.2d at 64; Conner, 203 Va. at 208, 123 S.E.2d at 396. The aggravation of the aneurysm occurred after EHS personnel responded to the call for assistance from the aerobics instructor, during claimant's' period of employment, and at a place where she could reasonably be if she became ill at work, i.e., the "quiet room." The only reason that EHS responded to that call was because claimant was an employee. Thus, claimant "was injured at a place where she was reasonably expected to be while engaged in an activity reasonably incidental to her employment." Briley, 240 Va. at 198, 396 S.E.2d at 837. Her injury therefore occurred "in the course of" her employment. Claimant's injury was an "injury by accident arising out of and in the course of [her] employment." Code Sec. 65.2-101, and is therefore compensable under the Act. Her action in the circuit court is thus barred by Code Sec. 65.2-307 ("The rights and remedies herein granted to an employee when his employer and he have accepted the provisions of this title respectively to pay and accept compensation on account of injury or death by accident shall exclude all other rights and remedies of such employee . . . on account of such injury . . . ."). Combs v. Virginia Power, Record No. 990534 (March 2, 2000). WP Version.

Carpal Tunnel Syndrome Can be an Injury by Accident. A claimant's carpal tunnel syndrome may be compensable as an "injury by accident" or an "occupational disease," depending on how it develops. See Rocco Turkeys, Inc. v. Lemus, 21 Va. App. 503, 507, 465 S.E.2d 156, 158 (1996). Carpal tunnel syndrome, which is a condition that exhibits a characteristic set of symptoms caused by compression of the median nerve in the carpal tunnel, will qualify as a disease when it develops as the body's response to environmental factors, infective agents, or inherent defects of the body. Carpal tunnel syndrome may be caused by a number of precipitating factors or events, such as repetitive motion, cumulative trauma, obesity, rubella, pregnancy, rheumatoid arthritis, gout, and hypothyroidism, or a traumatic injury. Id. (citing 2 Cecil Textbook of Medicine 1563 (19th ed. 1992)) (emphasis added). Accordingly, carpal tunnel syndrome may qualify as an "injury by accident" under Code Sec. 65.2-101 or as an "occupational disease" under Code Sec. 65.2-401, depending upon its pathology or how it is incurred. In injury by accident cases, the clear and convincing evidence standard does not apply. "[T]he claimant had the burden of establishing, by a preponderance of the evidence, and not merely by conjecture or speculation, that [he] suffered an injury by accident which arose out of and in the course of the employment." Central State Hosp. v. Wiggers, 230 Va. 157, 159, 335 S.E.2d 257, 258-59 (1985) (citations omitted). The evidence in the instant case proved that claimant's carpal tunnel syndrome was not an injury of gradual growth or the result of cumulative trauma. Indeed, the commission specifically found that claimant's injuries occurred while performing a single act, stating the following: The record establishes that the "identifiable incident" in this case commenced when the claimant felt a sudden onset of pain in the right arm while lifting the fuel hose and adapter above shoulder level. He then lost strength shortly thereafter in his right arm. At some juncture during this incident the claimant also suffered a puncture wound to the dorsum of his right hand. As in a motor vehicle accident that can cause more than one structural or mechanical change in the body so too did this incident cause greater than one bodily change. The event causing these two insults to the body must be viewed as a unitary whole rather than two disparate occurrences. Regardless of the sequence, the injuries occurred while claimant was performing a single act. ( Here, credible evidence supports the commission's finding that claimant proved (1) that his carpal tunnel syndrome appeared suddenly at a particular time and place and upon a particular occasion, (2) that it was caused by an identifiable incident or sudden precipitating event, and (3) that it resulted in an obvious sudden mechanical or structural change in the human body. See Southern Express v.Green, 257 Va. 181, 187, 509 S.E.2d 836, 839 (1999)(chilblains that the claimant suffered as a result of being exposed to cold temperature in a walk-in cooler during a four-hour period constituted an 'injury by accident' under the Act). Accordingly,  the commission did not err in finding that claimant's carpal tunnel syndrome constituted an "injury by accident" within the meaning of Code Sec.65.2-101. Ogden Aviation Services v. Saghy, Record No. 1179-99-4 (April 4, 2000). WP Version.

The commission did not err in finding: (1) that claimant established an "injury by accident" to his right foot on September 1, 1997; and (2) that medical treatment rendered in August 1998 was causally related to that "injury by accident." Claimant testified that on September 1, 1997, while working as a groundsman, he was injured when a tree fell on his right foot. Two witnesses corroborated this account. Claimant sought no medical treatment for almost a year. The medical records set forth a record of an injury a year earlier followed by intermittent pain.  This evidence was sufficient for the commission to find an injury by accident and causation. "The testimony of a claimant may also be considered in determining causation, especially where the medical testimony is inconclusive." Dollar General Store v. Cridlin, 22 Va. App. 171, 176, 468 S.E.2d 152, 154 (1996).  Thus, the court  held in Cridlin that where "the [medical] reports reflect only the results of claimant's physical examination and do not purport to establish the cause or causes of her injury[,] . . . the commission was free to credit claimant's testimony at the hearing as a basis for its finding of causation." Id. at 177, 468 S.E.2d at 155 (citation omitted). The record in this case does not establish that the medical issue was so complex that the commission made findings in an area that could only be properly decided by medical experts. Strickly Stumps, Inc. v. George Robert Enoch, Record No. 0523-00-4 (November 21, 2000). WP Version.

Professional Sports Injuries.  The Workers' Compensation Commission did not err in entering an award of permanent partial disability benefits in favor of Jeffrey A. Uhlenhake, a professional football player of the Washington Redskins, for injury to his left foot and in denying him an award of benefits for injury to his left knee.
    Beginning in 1996, Uhlenhake was employed by Pro-Football as an offensive lineman for the Washington Redskins football team. From 1989 to 1996, he had been employed by other professional football teams. During his career, Uhlenhake experienced a number of physical injuries in training, practices, and games. In 1993, he had anterior cruciate ligament (ACL) reconstruction surgery on his left knee. He testified that prior to his employment with Pro-Football he "had some [left] knee clicking, but . . . didn't have any pain or discomfort."
    Uhlenhake testified that he sustained an injury on September 28, 1997, during a regularly scheduled game when another player fell on his left ankle and foot. Uhlenhake reported the injury to the team's trainer and continued in the game. The team's physician, Dr. Gordon Lee Avery, an orthopaedic surgeon, examined Uhlenhake and noted a left ankle sprain with swelling, bruising, and pain but no instability. Uhlenhake applied ice to the injury and did not return to Dr. Avery for further treatment for the sprain.
    Uhlenhake testified that during a regularly scheduled game on November 9, 1997, he felt a "pop and pain" in his left knee when he "twisted or hyper-extended or did something" while blocking an opposing player. He testified that he continued in the game and reported the incident to the training staff the following day.
    At the end of the 1997 football season, Uhlenhake had surgery to repair the ACL on his left knee. Dr. Joseph D. Linehan, an orthopaedic surgeon, examined Uhlenhake in 1999 and opined that he had a permanent impairment of his left ankle due to arthritis and of his left knee due to the ACL injury. Uhlenhake filed a claim for permanent partial disability benefits based upon injuries to his left ankle and foot and to his left knee.
    The principle is well established that "[t]o constitute injury by accident it is not necessary that there must be a . . . 'fortuitous circumstance' . . . [or] that there should be an extraordinary occurrence in or about the work engaged in." Derby v. Swift & Co., 188 Va. 336, 344, 49 S.E.2d 417, 421 (1948). Moreover, even if an "injury was not accidental as to cause, [if] it was as to result[, . . .] this is sufficient under the [Act]." Id. at 343, 49 S.E.2d at 421. The Supreme Court reaffirmed these principles in Lilly v. Shenandoah's Pride Dairy, 218 Va. 481, 485, 237 S.E.2d 786, 788 (1977). See also R&R Construction Corp. v. Hill, 25 Va. App. 376, 379, 488 S.E.2d 663, 664 (1997).
    Uhlenhake was engaged in an activity required by his employment. He was employed by Pro-Football to train, practice, and play in football games, which is the business of Pro-Football. No evidence proved Uhlenhake undertook a voluntary task when he engaged in the activity, which he alleges caused his injury. This is not a case of an injury "resulting from an employee's voluntary participation in employer-sponsored off-duty recreational activities which are not part of the employee's duties." Code Sec. 65.2-101 (specifying an exclusion from injury by accident). Likewise, this is not a case in which the "injury was the direct result of [an employee] taking a risk of his own choosing, independent of any employment requirements, and one that was not an accepted and normal activity at the place of employment." Mullins v. Westmoreland Coal Co., 10 Va. App. 304, 308, 391 S.E.2d 609, 611 (1990). Uhlenhake was at all relevant times engaged in an activity within the scope of his employment contract.  "Injuries in [professional] sports are so routinely treated as compensable in the great majority of jurisdictions that they seldom appear in reported appellate decisions." 2 Arthur Larson, Workers' Compensation Law, Sec. 22.04[1][b] (2001).
    No evidence in this record established that Uhlenhake performed his employment tasks with the intent or design to bring on an injury. See Derby, 188 Va. at 342, 49 S.E.2d at 420 (noting that when the effect of the employee's action "was not intended or designed, the injury resulting was produced by accidental means"). Indeed, the record establishes that Uhlenhake was performing the tasks he was employed to perform when he was injured. Employer offered no proof that he was doing anything other than his required employment tasks in the manner required.
    Employer nevertheless asserts that "[p]rofessional football players must accept the risk of injury if they wish to play the game" and argues that "the commission's broadened definition will extend compensability to . . . others who voluntarily participate in employment where injury is either highly probable or certain." It has long been understood, however, that the legislature abolished various common law doctrines, including assumption of the risk, when it adopted the Workers' Compensation Act. Humphrees v. Boxley Bros. Co., 146 Va. 91, 95, 135 S.E. 890, 891 (1926). See also Whalen v. Dean Street Co., 229 Va. 164, 170, 327 S.E.2d 107, 106 (1985). It has also been long understood that the Act was "a compromise greatly to the advantage of the employee," Humphrees, 146 Va. at 95, 135 S.E. at 891, and was designed to address injury by accident resulting from "the hazard or risk to which [the employee] was exposed . . . in the particular business" of the employer. Fauver v. Bell, 192 Va. 518, 521, 65 S.E.2d 575, 577 (1951). Applying the Virginia Act, the Supreme Court has consistently held "that 'if . . . injury . . . 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 . . . is construed to be accidental within the meaning of the [Act].'" Southern Express, 257 Va. at 188, 509 S.E.2d at 840 (citation omitted). See also Byrd v. Stonega Coke & Coal Co., 182 Va. 212, 28 S.E.2d 725 (1944). In effect, Pro-Football's argument, if accepted, would introduce into the workers' compensation law the concept of assumption of the risk for a hazard that is undisputedly an incident of a worker's occupation. "To say that football injuries are not accidental because of the probability of injury is, if one looks at it more closely, no more than to say that any activity with a high risk factor should be ruled noncompensable." 2 Larson at Sec. 22.04[1][b]. The commission properly rejected this misguided notion and ruled that "[t]he nature of the employment and the foreseeability of a potential injury does not determine whether an injury sustained in the ordinary course of an employee's duties is an accident." The business of Pro-Football is to engage in the activity of professional football. It employs individuals to constantly perform in a strenuous activity that has risks and hazards. As with coal miners, steel workers, firefighters, and police officers, who are covered by the Act, other classes of employees are regularly exposed to known, actual risks of hazards because "the employment subject[s] the employee to the particular danger." Olsten v. Leftwich, 230 Va. 317, 319, 336 S.E.2d 893, 894 (1985). The commission correctly ruled that professional football players are not exempt from the coverage of the Act when they suffer injuries in the game they are employed to perform.
    The commission determined that Uhlenhake did not prove by a preponderance of the evidence that his ACL injury occurred from an identifiable event. employer's head athletic trainer and its assistant athletic trainer testified that Uhlenhake never reported that his left knee injury occurred from a specific incident. Both trainers also reviewed video records from the relevant games and found no indication that Uhlenhake experienced a specific trauma in those games. Pro-Football's records indicate that Uhlenhake reported an injury to his left knee in November 1997, but the records also indicate "he did not remember when he injured the knee." In addition, Dr. Avery testified that Uhlenhake never described or spoke of a particular event that caused his injury. Dr. Avery and Dr. Charles Jackson reviewed the November 13 MRI of Uhlenhake's knee, and both doctors concluded that the MRI depicted a stretched rather than torn anterior cruciate ligament. Dr. Avery opined that the knee injury was the cumulative result of playing football over many years. Credible evidence supports the commission's finding "that the [knee] injury was the result of cumulative events." Under the Act, such an injury is not compensable. The Lane Company, Inc. v. Saunders, 229 Va. 196, 199, 326 S.E.2d 702, 703 (1985). Jeffrey A. Uhlenhake v. Pro-Football, Inc., Record No.  0326-01-4 (January 29, 2002). WP Version.

Multiple Injuries.  The Court of Appeals correctly upheld a decision of the Workers' Compensation Commission denying an employer's request for payment credit against each of a claimant's three underlying injuries involving incapacity to perform work rather than just a condition that had resolved itself.
    Following a hearing in 1994, the deputy commissioner awarded Eggleston temporary total incapacity benefits stating that Eggleston's "physical limitations are the result of bilateral gamekeepers thumb, bilateral carpal tunnel syndrome and right shoulder problems."  The amount of the weekly payment was based on Eggleston's wages at the time she suffered her gamekeepers' thumb injury.  Du Pont did not appeal the decision of the deputy commissioner. In February 1999, Du Pont filed a change in condition application under all three of Eggleston's claim files, seeking various reductions in, and credits for, the incapacity payments it was making.  As relevant to this appeal, Du Pont asserted that Eggleston's gamekeepers' thumb injury had resolved itself and that the incapacity award should be appropriately reduced.  Du Pont also asserted that it was entitled to a weekly credit against each injury toward the 500-week maximum recovery period established by Code Sec. 65.2-518, rather than a credit limited to the gamekeepers' thumb injury, the crediting mechanism imposed by the Commission.
    The General Assembly authorized crediting a single payment as more than one week for purposes of Code Sec. 65.2-518, in only one instance.  That instance is where the claimant is receiving a benefit for both a permanent loss and a benefit for partial incapacity.  Code Sec. 65.2-503(E)(2) authorizes an employer to make a single payment comprised of the amount due an employee
pursuant to an award of permanent loss (Code Sec. 65.2-503) and partial incapacity (Code Sec. 65.2-502) and provides that such single payment must be credited as two weeks compensation for purposes of the 500-week compensation limitation.
    This section, of course, does not apply in this case because this case involves one, not two, awards and does not involve an award for a temporary partial and a contemporaneous award for permanent loss.  However, a well-recognized rule of statutory construction, expressio unius est exclusio alterius, provides that the mention of a specific item in a statute implies that other omitted items were not intended to be included within the scope of the statute.  Smith Mountain Lake Yacht Club v. Ramaker, 261 Va. 240, 246, 542 S.E.2d 392, 395 (2001); Commonwealth v. Brown, 259 Va. 697, 704-05, 529 S.E.2d 96, 100 (2000); Board of Supervisors v. Wilson, 250 Va. 482, 485, 463 S.E.2d 650, 652 (1995); Turner v. Wexler, 244 Va. 124, 127, 418 S.E.2d 886, 887 (1992).  Thus, specifically allowing a simultaneous or double crediting for two awards under the circumstances contemplated by Code Sec. 65.2-503(E)(2) and not providing for such double crediting for the purpose of Code Sec. 65.2-518 under any other circumstances, leads us to the conclusion that the General Assembly did not authorize or intend to authorize a double credit in circumstances in which the General Assembly has not authorized either a combined payment for more than one award or a double credit for a single payment.
    The workers' compensation statutes do not address the proper treatment of a single award that is based on a combination of injuries.  However, workers' compensation case law developed by the Court of Appeals provides some guidance.  The Grief Companies/Genesco, Inc. v. Hensley, 22 Va. App. 546, 553, 471 S.E.2d 803, 807 (1996), involved two injuries which "together caused total disability."  In that case, the Commission had determined that the claimant's temporary total disability was " 'due partially to her right hand condition and partially to the left.  It cannot be determined which condition is predominately disabling.' "  Id. at 550, 471 S.E.2d at 805-06.  The right hand condition had predated the left hand condition and, based on that condition, the claimant was receiving temporary total disability benefits at the time the left hand condition arose.  Id.  The Court of Appeals concluded that because the condition of the left hand "contributes to" the total incapacity, that condition "may properly be considered the basis for a total incapacity award."  Id. at 553, 471 S.E.2d at 807.  The Court of Appeals went on to instruct that, pursuant to
Code Sec. 65.2-506, the total incapacity award should be paid for the left hand first and, when that compensation was exhausted or the condition resolved itself, the temporary total incapacity award the claimant had been receiving for the right hand should be resumed, "if justified."  Id.
    The rule of the Grief case is that where more than one injury contributes to the incapacitating condition, a component injury may be the basis for the temporary total incapacity award.  When that injury resolves itself or the compensation limitation of Code Sec. 65.2-518 is reached, the claimant can continue to receive temporary total incapacity benefits based on the other component injury only if the evidence still supports a finding that the claimant is totally incapacitated based on the other component injury.
    Nothing in this procedure allows the claimant to recover more than 500 weeks of compensation for any one injury nor is compensation for each component injury guaranteed.  Following resolution of or compensation exhaustion for the initial injury, Eggleston carries the burden of showing that a component injury continues to support a finding of temporary total incapacity.
    Accordingly, because the circumstances of this case do not come within the provisions of the Workers' Compensation Act that authorize the Commission to credit a single payment as more than one week compensation for purposes of Code Sec. 65.2-518 and because the crediting procedure followed by the Commission in this case did not result in a violation of Code Sec. 65.2-518, we
will affirm the judgment of the Court of Appeals. E.I. du Pont de Nemours and Co. v. Eggleston, Record No. 011739 (Va. Sup. Ct., June 7, 2002). WP Version.

Contact with diseased animals--Injury by Accident--Medical Treatment.  The Workers' Compensation Commission erred in denying claimant's claim for reimbursement for the cost of injections, which she alleged were required as a result of exposure to the rabies virus in her employment. Claimant, a veterinary assistant, assisted Dr. Allison Mayo, the veterinarian-owner in treating a feral cat for upper respiratory and head cold symptoms. Dr. Mayo directed claimant to medicate the cat.  Claimant put medication into the cat's mouth using her hands, which had  pre-existing scratches from handling other animals.  When she put her hand inside the cat's mouth to insert the medication, she probably touched the cat's tongue and that there was "a good chance that . . . saliva came in contact with [her] hands."  The day after Frey medicated the cat, the cat's condition worsened. After the cat developed progressive neurologic symptoms, however, another veterinarian instituted rabies precautions to assure that none of the employees would have further exposure to the cat.  The veterinarian then "euthanized" the cat but failed to test the cat for rabies.  When the veterinarian-owner learned of claimant's exposure to the cat, she contacted several experts in rabies epidemiology because of her concern for clai