PRESENT:    All the Justices

PATRICIA KOHN, ADMINISTRATOR
OF THE ESTATE OF JOHN KOHN,
DECEASED
                                               OPINION BY
v.   Record No. 131162                 JUSTICE S. BERNARD GOODWYN
                                           September 12, 2014
BRUCE P. MARQUIS, ET AL.

           FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                       Mary Jane Hall, Judge

      In this appeal, we consider whether the circuit court

erred in granting summary judgment to the defendants on a plea

in bar which asserts that the plaintiff’s action is barred by

the Virginia Workers’ Compensation Act.

                               Background

      Patricia Kohn (Kohn), the wife of John Kohn (John), is

the administrator of her husband’s estate.     In a wrongful

death complaint filed in the Circuit Court of the City of

Norfolk, Kohn asserted that John died as the result of

multiple blows to the head inflicted between September 20,

2010 and December 9, 2010, during his training to become a

City of Norfolk police officer.      She alleged that the simple

and gross negligence of Norfolk Police Department Chief Bruce

P. Marquis and Senior Assistant Chief Sharon Chamberlin, as

well as the gross and willful conduct of Leldon Sapp, Stephen

Bailey, L.L. Tessier and Michael Reardon, who were Norfolk

Police officers and instructors at the Norfolk Police Academy,
caused John’s death (all defendants will be collectively

referred to as “the City”).

     The City filed a plea in bar alleging that Kohn’s

exclusive remedy is under the Virginia Workers’ Compensation

Act, Code § 65.2-100 et seq. (Act).      Kohn requested a jury

trial on the plea in bar, and the circuit court granted Kohn’s

request.    However, before the trial on the plea in bar, the

City moved for summary judgment on its plea based upon Kohn’s

pleadings and her responses to requests for admissions and

interrogatories.   After a hearing, the circuit court granted

the City’s motion for summary judgment on the plea in bar and

dismissed the case with prejudice.      Kohn appeals.

                              Facts

     John started training at the Norfolk Police Academy as a

recruit on September 20, 2010.       According to Kohn’s complaint,

at various times between September 20, 2010 and December 9,

2010, John was repeatedly and violently struck in the head

during training.    She asserts that these repeated violent

blows to the head proximately caused John’s death on December

18, 2010.

     The following undisputed facts were established by Kohn’s

responses to the City’s requests for admissions, pleadings

filed, and arguments made to the circuit court.         Between

September 20, 2010 and December 9, 2010, John was a police


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recruit undergoing training at the Norfolk Police Academy.

During his tenure at the Police Academy, John was a paid

employee of the City of Norfolk, as were the individual

defendants.

        Kohn admits that she is not aware of John’s seeking

medical treatment for injuries experienced during his training

as a police recruit prior to December 9, 2010.     On December 9,

2010, John experienced several blows to his head while

participating in training exercises at the Norfolk Police

Academy.    He was involved in a head-to-head collision with

another recruit, and he suffered several blows to his head

while engaged in a defensive training exercise with Officer

Sapp.    John began demonstrating serious neurological deficits

during the training exercises and was transported to Sentara

Leigh Hospital.    Medical records indicate John collapsed at

the Police Academy.     In a brief to the circuit court, Kohn

stated the facts upon which she relied more succinctly:

        [O]n December 9, 2010 Officer Leldon Sapp
        repeatedly struck Plaintiff’s decedent in the head
        with his fists to the point where Plaintiff’s
        decedent was no longer able to defend himself from
        Officer Sapp. At this point, Officer Sapp
        suspended his attack and shortly thereafter Mr.
        Kohn was transported to Sentara Leigh Hospital and
        then to Sentara Norfolk General Hospital.

        Upon evaluation at Sentara Leigh Hospital, John was

documented to have a Glasgow coma scale of 3 upon arrival.



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A CT scan was reported to show bilateral subdural hematomas

with midline shift.     On December 18, 2010, John died of trauma

to the head.

        Kohn contends that during his entire tenure at the

Norfolk Police Academy, John suffered numerous blows to his

head, all of which contributed to his death on December 18,

2010.    In her opposition to the plea in bar and to summary

judgment on the plea, Kohn referred the circuit court to an

autopsy report which states that blows to John’s head on

December 9, 2010 “may have played a significant role in Mr.

Kohn’s terminal event but other blows to the head prior to

this event cannot be excluded as contributing to his terminal

head injury.”

        This Court granted an appeal on the following assignment

of error:

             The trial court erroneously granted summary
        judgment despite the existence of a disputed
        material fact in the case. Specifically, the
        question whether the death resulted from injury by
        accident presented a jury issue, and the trial court
        violated the widow’s constitutional right to trial
        by jury by granting summary judgment.

                              Analysis

        “If it appears from the pleadings, the orders, if any,

made at a pretrial conference, [and] the admissions, if any,

in the proceedings . . . that the moving party is entitled to

judgment, the court shall enter judgment in that party’s


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favor.”    Rule 3:20.   A party does not have a constitutional

right to a jury trial if a case can be determined as a matter

of law based upon material facts not genuinely in dispute.

See W.S. Forbes & Co. v. Southern Cotton Oil Co., 130 Va. 245,

254-55, 108 S.E. 15, 18-19 (1921) (noting that the Seventh

Amendment of the United States Constitution is not applicable

to the states, and upholding summary disposition without trial

under Article I, § 11 of the Constitution of Virginia where

the controlling facts are not in dispute).    However, summary

judgment may not be entered if any material fact is genuinely

in dispute.    Kasco Mills, Inc. v. Ferebee, 197 Va. 589, 593,

90 S.E.2d 866, 870 (1956).    In an appeal arising from the

grant of a motion for summary judgment, appellate courts will

review the application of law to undisputed facts de novo.

See Transportation Ins. Co. v. Womack, 284 Va. 563, 567, 733

S.E.2d 656, 658 (2012).

     In this instance, the circuit court granted the City

summary judgment on its plea in bar based upon the exclusivity

provision of the Act.    Pursuant to the Act, an injured

employee and his beneficiaries are precluded from maintaining

a common law action against an employer or a co-employee for

an injury sustained in the course of employment if the Act

applies.    Code § 65.2-307(A); see also Hudson v. Jarrett, 269

Va. 24, 29, 606 S.E.2d 827, 829 (2005).


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     The Act applies to injuries by accident “arising out of

and in the course of” an individual’s employment.   Code

§ 65.2-300(A).   An injury by accident is “an identifiable

incident that occurs at some reasonably definite time, which

is the cause of an obvious sudden mechanical or structural

change in the body.”   Lane Co. v. Saunders, 229 Va. 196, 199,

326 S.E.2d 702, 703 (1985) (internal quotation marks omitted).

To 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 in the human body.”    Southern Express v.

Green, 257 Va. 181, 187, 509 S.E.2d 836, 839 (1999).

     Kohn’s complaint alleges that John was an employee of the

City of Norfolk’s Police Department who was injured by and

died because of numerous blows to his head during his

training.   It is not disputed that his injury and death arose

out of and in the course of his employment or that the

defendants were his co-employees.

     Additionally, it is admitted that John received several

blows to the head and was injured during training on December

9, 2010.    The parties agree that John suffered neurological

deficits as a result of those blows and was taken to the


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hospital.   Thus, there is no dispute that John suffered an

injury by accident on December 9, 2010.

       Kohn contends that John’s death was caused not just by

the injury that occurred on December 9, 2010, which

contributed to it, but also as the result of other blows to

the head John received earlier in his training.    In other

words, she asserts that John’s death resulted from a series of

head traumas over a period of time, rather than from a single

identifiable event.   She contends that John’s death is

therefore not compensable under the Act.

       Kohn asserts that the circuit court erred in granting

summary judgment because there is a material question of fact

regarding whether John’s death was caused by a single

identifiable trauma or a series of traumas suffered over the

course of his training.   Citing Dollar General Store v.

Cridlin, 22 Va. App. 171, 175, 468 S.E.2d 152, 154 (1996), she

posits that if John’s death was caused by a series of traumas

rather than solely by one event it is “a gradually incurred

injury [and] not an injury by accident within the meaning of

the [Workers’ Compensation] Act.”    Id.   She notes that

injuries that result from repetitive traumas are not “injuries

by accident.”    Southern Express, 257 Va. at 186, 509 S.E.2d at

839.




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     The City argues that John suffered an injury by accident

on December 9, 2010, which was a proximate cause of his death.

The City asserts that, whether or not John had preexisting

conditions and injuries, his undisputed injury by accident on

December 9, 2010, which Kohn alleges contributed to his death,

entitles John to workers’ compensation benefits and bars this

action.

     We agree with the City.   This case significantly differs

from the gradually incurred injury and repetitive trauma cases

referenced by Kohn in that John suffered an obvious mechanical

or structural change in his body while engaged in a work

activity which exposed him to an employment-related hazard

that injured him and contributed to his death.

     In Byrd v. Stonega Coke & Coal Co., 182 Va. 212, 216, 28

S.E.2d 725, 727 (1944), this Court stated that “if the injury

or death results from, or is hastened by, conditions of

employment exposing the employee to hazards to a degree beyond

that of the public at large, the injury or death is construed

to be accidental within the meaning of the statute.”   In the

present case, John collapsed at work after the last blow to

his head on December 9, 2010, and was rushed to the hospital.

He died several days later.    It is undisputed that John was

injured on December 9, 2010 during training.   Kohn’s complaint

itself contends that John’s injuries on December 9, 2010


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contributed to his death.   The training on December 9, 2010

was a condition of employment that exposed John to the hazard

of blows to the head beyond that of the public at large, and

the injury John suffered during training on December 9, 2010

was a proximate cause of his death.      Thus, his death is

properly construed as accidental within the meaning of the

Act.

                            Conclusion

       Accordingly, the circuit court did not err in granting

summary judgment on the plea in bar, and the circuit court did

not err in holding that the exclusivity provision of the Act,

Code § 65.2-307(A), bars this action.      As a result, we will

affirm the judgment of the circuit court.

                                                         Affirmed.




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