City of Charlottesville v. Sclafani

CITY OF CHARLOTTESVILLE v. WILLIAM SCLAFANI

Record No. 1815-19-2

COURT OF APPEALS OF VIRGINIA

MAY 5, 2020

UNPUBLISHED

Present: Judges Humphreys, Huff and Malveaux

Argued by teleconference

MEMORANDUM OPINION^* BY JUDGE MARY BENNETT MALVEAUX

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

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

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

The Virginia Workers' Compensation Commission ("the Commission") awarded benefits to William Sclafani ("claimant") for a workplace injury. On appeal, this Court reversed the Commission's decision that claimant's injury met the burden of establishing temporal precision and remanded to the Commission for additional fact-finding on that issue. See City of Charlottesville v. Sclafani, 70 Va. App. 613, 623 (2019). The City of Charlottesville ("employer") now appeals the Commission's award of benefits on remand. Employer argues the Commission erred in finding that claimant met his burden to show that his injury occurred at some reasonably definite time. Finding no error by the Commission, we affirm.

I. BACKGROUND

"On appeal from a decision of the . . . Commission, the evidence and all reasonable inferences that may be drawn from that evidence are viewed in the light most favorable to the party prevailing below," in this case, claimant. Anderson v. Anderson, 65 Va. App. 354, 361 (2015) (quoting Artis v. Ottenberg's Bakers, Inc., 45 Va. App. 72, 83 (2005) (en banc)).

So viewed, the evidence establishes that claimant worked for employer as a police officer during 2017. Claimant testified that on May 9, 2017, he "role-play[ed] the bad guy" during SWAT team training from 8:00 a.m. until approximately 5:00 p.m.¹ In this role, claimant was repeatedly "put on the ground and cuffed," picked up "underneath the arms," and "moved away."

Claimant could not "recall anything ever popping or cracking" or a moment during the training when he experienced a sudden onset of pain. However, he did recall that "at the end, [he] was picked up a little weird . . . [and] felt some discomfort" in his left shoulder. Claimant described the sensation as a "tweak," which occurred "[a]fter lunch, when they picked me up [during] the last scenario -- it was a knife scenario. After they handcuffed me and picked me up, . . . it was discomfort." He further stated that during the training, "[o]nly that one [moment] really sticks out . . . the knife scenario one, where I was picked up a little funny . . . [and] felt like discomfort."

During his drive home, claimant's left shoulder became "real sore" and he found that he could not "hold [his] arm out straight on the steering wheel." Claimant did not "remember it hurting when [he] went to lunch" earlier that day. Later that evening, claimant discovered that he could not raise his arm straight up or down or lift it above his head.

When asked by employer's counsel whether the "knife scenario" was the "incident that you believed caused something to go wrong," claimant replied, "Oh yeah. There's no doubt." Claimant further explained, "I could move my arm fine. And then after that -- you know, if you hold your wrist up level with your ear and then just push up, you know, I couldn't do that with the left arm."

Claimant sought medical treatment and later underwent left shoulder surgery to address tendinosis, rotator cuff tears, and traumatic impingement syndrome.

During his medical treatment, claimant filed a claim for benefits alleging an injury by accident to his left shoulder and arm. The deputy commissioner denied the claim, holding that claimant had suffered a clearly defined injury but had not established an identifiable incident or sudden precipitating event as the injury's cause.

Claimant requested review by the full Commission. On review, the Commission reversed the deputy commissioner and awarded claimant medical and temporary total disability benefits. The Commission found that the day-long training session "provided the necessary rigidity of temporal precision to constitute one event, and the claimant suffered a 'discrete and specific' traumatic injury to his shoulder as a result." The Commission awarded claimant benefits, and employer appealed to this Court.

On review, this Court concluded the Commission had "assumed but failed to find" that claimant's testimony had established that his injury occurred "with sufficient temporal precision." Sclafani, 70 Va. App. at 623. We noted that claimant's "training spanned eight hours, with an interruption for lunch. The assumption that [claimant] sustained a non-cumulative injury during the last four hours of training was justified based on [claimant's] own testimony. However, there was no specific finding to this effect." Id. Consequently, we "reverse[d] the Commission's decision that [claimant's] injury met the burden of establishing temporal precision" and remanded "for the Commission to make a factual finding . . . as to whether [claimant's] injury occurred during the four post-lunch hours of the training." Id.

On remand, the Commission found that claimant had not noticed any problems with his arm or shoulder prior to his lunch break. Then, "[a]t some point after lunch when he was picked up and taken to the ground, he felt a 'tweak' or 'discomfort'" and was subsequently "unable to push up with his left arm." Based upon these facts, the Commission found that claimant "sustained a non-cumulative injury during the last four hours of training. He consistently denied feeling any shoulder or arm discomfort in the morning and first felt a 'tweak' in the afternoon." The Commission further concluded that "this case [is] factually and legally indistinguishable from . . . Riverside Reg[']l Jail Auth[.] v. Dugger, 68 Va. App. 32 (2017). The claimant was engaged in the same type of physical activities when the injuries occurred over the identical [sic] four-hour period." The Commission awarded benefits to claimant.

Employer appealed the Commission's remand decision to this Court.

II. ANALYSIS

Employer argues the Commission erred in finding that claimant met his burden to show that his injury occurred at some reasonably definite time on May 9, 2017.² Specifically, it contends that claimant's injury was not bound by rigid temporal precision because claimant "could not recall when his injury occurred over the entire eight-hour training exercise." Thus, employer argues, the instant case is distinguishable from Dugger, where an injury that occurred sometime during a four-hour training session was found sufficiently temporally precise.

"As the appellant in this case, [employer] bears the 'burden of showing' that the Commission committed 'reversible error.' Further, this Court defers to the Commission in its role as fact finder." Jones v. Crothall Laundry, 69 Va. App. 767, 774 (2019) (citation omitted) (quoting Burke v. Catawba Hosp., 59 Va. App. 828, 838 (2012)). Thus, in conducting our review, factual findings by the Commission are conclusive and binding on this Court if they are supported by credible evidence. Id. "This principle applies 'even [if] there is evidence in the record to support a contrary finding.' The appellate court simply does not 'retry the facts, reweigh . . . the evidence, or make [its] own determination of the credibility of the witnesses.'" Id. (alterations in original) (citation omitted) (first quoting City of Waynesboro v. Griffin, 51 Va. App. 308, 317 (2008); then quoting Layne v. Crist Elec. Contractor, Inc., 64 Va. App. 342, 345 (2015)). "Whether credible evidence exists to support a factual finding is a question of law," Hercules, Inc. v. Gunther, 13 Va. App. 357, 361 (1991), and this Court "review[s] questions of law de novo," Advance Auto and Indem. Ins. Co. of N. Am. v. Craft, 63 Va. App. 502, 514 (2014).

An injury by accident is compensable under the Virginia Workers' Compensation Act when it "aris[es] out of and in the course of the [claimant's] employment." Code § 65.2-101. To prove such an injury, "a claimant must prove: '(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.'" Dugger, 68 Va. App. at 38.

An identifiable incident is "inevitably 'bounded with rigid temporal precision'"—that is, it necessarily "'occurs at [some] reasonably definite time.'" Van Buren v. Augusta Cty., 66 Va. App. 441, 451 (2016) (alteration in original) (quoting Morris v. Morris, 238 Va. 578, 588-89 (1989)). "[I]njuries resulting from repetitive trauma, . . . or other cumulative events . . . are not 'injuries by accident' under the act." Morris, 238 Va. at 589. However, even though the incident must by bounded with rigid temporal precision, a claimant "is only required to fix the time of [its] occurrence with reasonable accuracy," id., and "an incident lasting for more than a few seconds or minutes can be enough to establish . . . 'rigid temporal precision' . . . when the surrounding circumstances support the conclusion," Sclafani, 70 Va. App. at 619. "Therefore, an 'identifiable incident' is present if the injury was 'the result of some particular piece of work done or condition encountered on a definite occasion.'" Id. at 622 (quoting Southern Exp. v. Green, 257 Va. 181, 189 (1999)).

In the instant case, contrary to employer's argument, the record does not support that claimant's injury merely occurred sometime during the approximately eight hours of training on May 9, 2017. The Commission, instructed on remand to "make a factual finding . . . as to whether [claimant's] injury occurred during the four post-lunch hours of the training," reexamined the evidence and concluded that claimant's injury did occur during that time frame. Id. at 623. Credible evidence in the record supports this finding. As noted by the Commission, claimant did not...