                                         COURT OF APPEALS OF VIRGINIA


            Present: Judges Huff, O’Brien and Senior Judge Haley
            Argued at Fredericksburg, Virginia
PUBLISHED




            ALEXANDRIA CITY PUBLIC SCHOOLS AND
             ALEXANDRIA CITY SCHOOL BOARD
                                                                                 OPINION BY
            v.     Record No. 1582-18-4                                       JUDGE GLEN A. HUFF
                                                                                 MAY 14, 2019
            KERRI HANDEL


                         FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                           Michael S. Bliley (Andrew M. Alexander; Siciliano, Ellis, Dyer &
                           Boccarosse PLC, on briefs), for appellant.

                           (Julie H. Heiden; Koonz, McKenney, Johnson, DePaolis &
                           Lightfoot, LLP, on brief), for appellee. Appellee submitting on
                           brief.


                   Alexandria City Public Schools (“employer”) appeals an award of workers’

            compensation benefits to Kerri Handel (“claimant”) by the Virginia Workers’ Compensation

            Commission. In a single assignment of error, employer argues the Commission erred in finding

            that claimant suffered a compensable injury to her right shoulder. Employer argues claimant

            failed to prove she suffered a sudden structural or mechanical change to her shoulder. Employer

            contends that claimant must demonstrate a sudden mechanical or structural change to each part

            of the body in which the claimant is experiencing pain for the injury to be compensable under the

            Workers’ Compensation Act. This Court affirms the Commission because claimant must only

            prove her accident caused one sudden mechanical or structural change to her body to collect

            compensation for any injury caused by that accident. Proof of a “sudden mechanical or

            structural change in the body” is required only to establish that a claimant suffered an “injury by

            accident.”
                                         I. BACKGROUND

        “Under settled principles of appellate review, we consider the evidence in the light most

favorable to employee as the prevailing party before the commission.” Layne v. Crist Elec.

Contractor, Inc., 64 Va. App. 342, 345 (2015). So viewed, the evidence in the record shows the

claimant was employed as a math teacher at T.C. Williams High School in the Alexandria City

School District on April 24, 2014. On that date, claimant slipped on a puddle of hand sanitizer on

her classroom floor and fell on her right side. She was then taken by ambulance to Alexandria

Hospital for treatment of her injuries. Among the multiple injuries listed under “Final Diagnoses”

on the hospital records from that visit is “Pain in joint, shoulder region.”

        Claimant filed a notice of injury report with Alexandria City Public Schools on April 29,

2014, in which she indicated that her right ankle, knee, hip, shoulder, neck, and back were all

injured in the fall. On April 30, 2014, claimant sought treatment from orthopedist Dr. David

Hampton at which time she complained of pain throughout her right side, including her right

shoulder, hip, knee, ankle, low back, and neck. Dr. Hampton evaluated claimant again in

September 2016 for shoulder pain and concluded her pain was nerve related. Dr. Hampton then

referred claimant to Dr. Ryan Jander for a second opinion. At her examination with Dr. Jander,

claimant complained of pain originating in her shoulder and radiating down her arm with numbness

in her hand. There were no abnormal results indicated by imaging of claimant’s right shoulder done

by either Dr. Hampton or Dr. Jander, but Dr. Jander concluded complainant suffered from a

neurological condition in her shoulder and referred her to physical therapy.

        A hearing was held on November 9, 2016, before Deputy Commissioner Susan

Cummins. Prior to that hearing, employer had stipulated to a compensable injury by accident to

the claimant’s right hip, neck, back, right ankle, and right knee but disputed claims for the right

shoulder and a head injury. In February 2018, the deputy commissioner issued a letter opinion

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awarding claimant temporary total disability benefits and lifetime medical benefits for “injuries

including but not limited to injuries to the right knee, right ankle, right hip, right shoulder, back,

neck, head and for memory loss, migraines/headaches and a concussion/post-concussion

syndrome.” The deputy commissioner found that her “account of how she was injured is

uncontroverted by the other evidence.” The deputy commissioner further found that claimant

had demonstrated “the necessary causal nexus between the accident and the claimant’s right

shoulder complaints” and that she had sustained an “injury by accident” to both her shoulder and

head.

        Employer appealed the commissioner’s decision and requested a full Commission review

in April 2018. Employer argued claimant failed to demonstrate a structural or mechanical

change in the shoulder. Nevertheless, the Commission unanimously agreed with the deputy

commissioner that claimant had “established a compensable injury by accident to the right

shoulder.”

        This appeal followed.

                                   II. STANDARD OF REVIEW

        “The commission’s determination of whether a claimant suffered ‘an “injury by accident”

presents a mixed question of law and fact, because it involves both factual findings and the

application of law to those facts. The Commission’s factual findings bind us as long as credible

evidence supports them.’” Riverside Regional Jail Authority v. Dugger, 68 Va. App. 32, 37

(2017) (quoting Van Buren v. Augusta Cty., 66 Va. App. 441, 446 (2016)). “In determining

whether credible evidence exists, [this C]ourt does not retry the facts, reweigh the preponderance

of the evidence, or make its own determination of the credibility of the witnesses.”

Smith-Adams v. Fairfax Cty. Sch. Bd., 67 Va. App. 584, 590 (2017) (quoting Wagner Enters.,

Inc. v. Brooks, 12 Va. App. 890, 894 (1991)).

                                                 -3-
       Whether the facts found by the Commission “prove the claimant suffered a compensable

‘injury by accident’ is a question of law.” Van Buren, 66 Va. App. at 446 (quoting Goodyear

Tire & Rubber Co. v. Harris, 35 Va. App. 162, 168 (2001)). Where there is a mixed question of

law and fact, “the [C]ommission’s ruling is not binding on appeal.” Gwaltney of Smithfield,

Ltd. v. Hagins, 32 Va. App. 386, 393 (2000).

                                         III. ANALYSIS

       On appeal, employer contends that the Commission erred in finding that the injury to

claimant’s right shoulder was compensable because, unlike her other injuries, claimant failed to

prove a sudden mechanical or structural change in her right shoulder. Under Virginia law, an

injury is compensable under the Workers’ Compensation Act when the injury was the result of

an accident, which the claimant must establish by proving “(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 bodily change.” Hoffman v.

Carter, 50 Va. App. 199, 212 (2007).

       Employer only challenges the third prong, claiming that there is no structural or

mechanical change to the claimant’s shoulder and that the shoulder pain she complains of was

not caused by the structural or mechanical changes elsewhere in her body. Employer concludes

that this fact alone makes claimant’s shoulder injury non-compensable under the Act. Although

this Court has never directly addressed this issue before, we find employer’s argument

unpersuasive and therefore disagree.1


       1
          In an unpublished opinion, this Court recently affirmed the denial of an award based on
a failure to establish a structural or mechanical change to the brain despite employer’s stipulation
that other injuries were compensable because other mechanical or structural changes existed.
Preston v. Franklin Cty. Public Schools, Record No. 1545-18-2 (Va. Ct. App. Mar. 26, 2019).
Preston does not control for two reasons. First, it is unpublished and not binding precedent. It is
only relevant for its persuasive effect.

                                                -4-
       A single “sudden mechanical or structural change” anywhere in the body suffices to

establish that a claimant has suffered an “injury by accident.” Once an injury by accident is

established, any injury causally connected to the accident—even if not connected to the sudden

mechanical or structural change—is compensable. In other words, a claimant does not need to

prove a structural or mechanical change in every body part affected by an obvious accident as

long as there is at least one sudden mechanical or structural change and each injury is caused by

the accident.2

       The requirement that a claimant prove she suffered a “sudden mechanical or structural

change” exists only to establish that the injury is accidental and not the result of a gradual change

over time. The Supreme Court and this Court have only applied the “sudden mechanical or

structural change” requirement in three general circumstances. In each circumstance, the courts

ultimately use it only to establish that the claimant’s injuries are accidental. It is not used to

establish that the injuries are “injuries” within the meaning of Workers’ Compensation statute.




        Second, it is unpersuasive in this case because the claimant in Preston did not argue the
Commission erred by requiring her to prove a separate mechanical or structural change for the
head injury. Rather, the claimant argued that the Commission had erred because she had proved
a mechanical or structural change. In its opinion, this Court only held that there was credible
evidence in the record to support the Commission’s determination that she had not proved the
mechanical or structural change. This Court did not analyze whether the requirement to prove a
mechanical or structural change does, or should, apply in that context because that question was
not before the Court. See Clifford v. Commonwealth, 274 Va. 23, 25 (2007) (“[A]n appellate
court may not ‘recast’ an argument made in a lower court into a different argument upon which
to base its decision . . . .”).
       2
          It may be that in some cases the only way a claimant will establish causation is by
proving that the injury complained of is connected to a sudden mechanical or structural change.
For example, if a claimant were to suffer a ruptured vertebra as the result of the usual exertions
of the job, it is possible the only way to prove a concomitant leg problem was causally connected
would be to show that the ruptured vertebra caused the leg problem because it disrupted a nerve.
                                                 -5-
       First, a claimant suffers an “injury by accident” when she suffers a “sudden mechanical

or structural change” in the body, even if the claimant’s injury is caused by the usual exertions of

her job—even when there is no “accident” within the ordinary sense of that word.

       Second, a claimant has not suffered an “injury by accident” when the injury is gradually

occurring. Suffering a “mechanical or structural change to the body” is insufficient. Rather it

must be a “sudden mechanical or structural change.”

       Third, a claimant may prove a purely psychological injury to be an “injury by accident”

without proving she suffered a “sudden mechanical or structural change” to her body. Rather,

she can prove she suffered an “injury by accident” by demonstrating an “obvious sudden shock

or fright” caused her purely psychological injury, such as post-traumatic stress disorder. The

claimant may still prove the purely psychological injury is an injury by accident by showing a

“sudden mechanical or structural change” to the body, but is only required to when she cannot

prove her psychological injury was caused by an “obvious sudden shock or fright.”

       These three uses of the test demonstrate that the purpose of proving the “sudden

mechanical or structural change” is to establish the injuries are accidental.

                                        A. Usual exertions

       Despite the absence of an “accident” within the ordinary meaning of that word, an injury

that an employee sustains while performing his or her routine job duties is compensable as an

“injury by accident” when the injury results in a “sudden mechanical or structural change” in the

body. The Supreme Court addressed the question of whether an injury that was sustained during

the performance of ordinary job duties, rather than as a result of an unusual event or exertion,

would be compensable as an “injury by accident” in Virginia Electric & Power Co. v. Quann,

197 Va. 9, 12 (1955). In Quann, the Court held that “when usual exertion results in actually

breaking, herniating, or letting go with an obvious sudden mechanical or structural change in the

                                                -6-
body, whether external or internal, the injury is accidental.” Id. The Court reaffirmed this

principle in Virginia Electric & Power Co. v. Cogbill, 223 Va. 354, 356 (1982) (emphasis

added), when it held that in order for injuries resulting from ordinary exertion to be compensable

as an injury by accident, the claimant must prove that it resulted in “an obvious sudden

mechanical or structural change in the body.”

       Thus, the Court uses the “sudden mechanical or structural change” test to expand the

notion of when an injury is legally caused “by accident,” not to exclude from “injury by

accident” those injuries caused by an obvious accident that are unconnected to a “mechanical or

structural change” in the body. To require a claimant to prove each injury is connected to a

particular “mechanical or structural change” in the body despite suffering other “sudden

mechanical or structural changes” in an obvious accident, turns the test upside-down. The

purpose of the test is to allow a claimant to demonstrate that her injuries are accidental, even in

the absence of an obvious accident. Thus, this Court applies the “sudden mechanical or

structural change” test as a threshold to establish the claimant has suffered an accident. Once an

accident is established, any injuries resulting from that accident, even if not connected directly to

the sudden mechanical or structural change, are compensable.

                                  B. Gradually Occurring Injury

       The Supreme Court’s limitation on claims for gradually occurring injuries likewise

demonstrates that the “sudden mechanical or structural change” test operates as a threshold. In

Morris v. Morris, 238 Va. 578, 589 (1989), the Supreme Court declined to expand the definition

of “injury by accident” to include gradually incurred injuries when it held that to prove an injury

by accident the claimant must prove “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.”

                                                -7-
          In one of the three consolidated cases addressed in Morris, the claimant began to develop

back soreness during the unloading of seven large steel doors from a truck. Id. at 582. He

developed increasing soreness throughout the day but continued to work at a steady pace and did

not mention an injury to his co-workers. Id. He worked a full shift the next day, but then went

to the hospital where he was diagnosed with a ruptured cervical disc. Id. A ruptured cervical

disc is a structural change in the body. However, gradually increasing soreness was not proof of

an “obvious sudden mechanical or structural change.” Id. at 586 (emphasis added). The Court

concluded “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 § 65.1-7,” because they do not result from an accident. Id.

at 589.

          The Court looked to the intent of the Act to focus its analysis:

                 It is apparent from the language employed by the drafters of the
                 Act that it was originally intended to provide coverage for the most
                 frequently recurring kinds of industrial accidents, e.g., injuries
                 immediately resulting from hazards of the workplace such as
                 blows from falling objects; injuries from contacts of the body with
                 operating machinery or corrosive chemicals; falls from ladders,
                 catwalks, and the like.

Id. at 585. Based on this intent, the Court focused on defining what constitutes an “accident,”

and not on restricting the definition of “injury.”

          Like the Court’s inclusion of sudden injuries caused by a claimant’s ordinary job

responsibilities in the definition of “injury by accident,” the Court’s exclusion of gradually

occurring injuries supports the conclusion that the “sudden mechanical or structural change” test

operates as a threshold test. The Supreme Court reversed the award of benefits in Morris not

because the claimant had failed to demonstrate a mechanical or structural change, but because

the change was not “sudden.” The Court focused on the non-accidental nature of the injury, as


                                                  -8-
demonstrated by the lack of a “sudden mechanical or structural change.” When a claimant is

injured in an obvious accident and suffers one sudden mechanical or structural change, all

injuries flowing from the accident—even if unconnected to the” mechanical or structural

change”—are “injuries by accident” and compensable.

                                 C. Purely Psychological Injuries.

       Further demonstrating that the “sudden mechanical or structural change” test operates as

a threshold test, a claimant is not required to prove a “sudden mechanical or structural change” to

establish an “injury by accident” when the claimant alleges “a purely psychological injury.”

Instead, she need only establish that the “purely psychological injury” is “causally related to a

physical injury or . . . causally related to an obvious sudden shock or fright arising in the course

of employment.” UPS v. Prince, 63 Va. App. 702, 709 (2014) (quoting Chesterfield Cty. v.

Dunn, 9 Va. App. 475, 477 (1990)); see also Fairfax Cty. Fire & Rescue Dep’t v. Mottram, 263

Va. 365, 375 (2002) (“[T]raumatic neurosis caused by sudden shock or fright without any

physical impact may be compensable as an injury by accident.” (citing Burlington Mills Corp. v.

Hagood, 177 Va. 204, 210-11 (1941))). Only if the claimant fails to demonstrate a “sudden

shock or fright” will the claimant be required to demonstrate a “sudden mechanical or structural

change” to establish her purely psychological injury is an “injury by accident.” Dunn, 9

Va. App. at 476.

       The key overlap between the two tests is “sudden.” Both the “sudden mechanical or

structural change” test and the “sudden shock or fright” test establish that the claimant has

suffered an “injury by accident.” This conclusion is reinforced by this Court’s analysis of when

a claimant has suffered a “sudden shock or fright.” This Court excludes those “shocks” or

“frights” that are “an expected occurrence in the performance of [the claimant’s] duties.” Hess

v. Va. State Police, 68 Va. App. 190, 198 (2017) (quoting Hercules, Inc. v. Gunther, 13 Va. App.

                                                -9-
357, 363 (1991)). For example, in Hess, this Court held a state trooper’s post-traumatic stress

disorder (“PTSD”) was not an “injury by accident” because the shock of responding to a

gruesome fatal accident scene is “an expected occurrence in the performance of his duties.” Id.

This Court agreed with the Commission’s holding that viewing the scene could not be a

“sudden” or “unexpected” shock or fright when viewing fatal accident scenes is “an

unfortunately frequent and expected occurrence in a trooper’s daily duties.” Id. at 199.

       Thus, the treatment of pure psychological injuries reinforces the conclusion that the

“sudden mechanical or structural change” test is a threshold test satisfied when a claimant is

involved in an obvious accident and suffers one “sudden mechanical or structural change” to her

body. Allowing a claimant to prove a “purely psychological” “injury by accident” through a

“sudden shock or fright,” but without proving a “sudden mechanical or structural change,”

demonstrates that the purpose of the test is to establish the sudden, unexpected, “accidental”

nature of the injury.

       Together, these three uses of the test demonstrate that the purpose of proving a “sudden

mechanical or structural change” is to demonstrate that the claimant’s injuries are accidental.

The core of the test is the suddenness of the injury. Thus, when a claimant is involved in an

obvious accident, a single “sudden mechanical or structural change” is sufficient to demonstrate

she suffered an “injury by accident.” All injuries causally connected to the accident, even if not

directly attributable to one particular “sudden mechanical or structural change,” are

compensable.

       Here, by stipulating that several of claimant’s injuries, sustained in the slip and fall, were

compensable, employer conceded claimant suffered at least one “sudden mechanical or structural

change to her body.” That is all that is required. As long as her shoulder injury is causally

connected to her fall, that injury is compensable.

                                               - 10 -
       The Commission found the shoulder injury was caused by the fall, noting, “it [is]

significant here that the claimant has not received treatment for right shoulder complaints in the

recent years prior to her accident.” Although employer argues claimant’s shoulder injury was

not causally connected to a “sudden mechanical or structural change” in her body, it does not

argue on appeal that it was unconnected to the fall. Therefore, this Court affirms the

Commission’s finding that claimant’s shoulder injury was a compensable injury by accident.

                                       IV. CONCLUSION

       This Court affirms the decision of the Virginia Workers’ Compensation Commission. A

claimant need only demonstrate a single “sudden mechanical or structural change” to establish

an “injury by accident.” Thereafter, she may prove an injury is compensable by causally

connecting it to the accident, even if she cannot demonstrate it is connected to the “mechanical

or structural change.”

                                                                                         Affirmed.




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