                                          COURT OF APPEALS OF VIRGINIA


            Present: Judges Chafin, Russell and Senior Judge Clements
            Argued at Salem, Virginia
PUBLISHED




            CITY OF CHARLOTTESVILLE
                                                                                   OPINION BY
            v.      Record No. 1999-18-3                                     JUDGE TERESA M. CHAFIN
                                                                                  JULY 23, 2019
            WILLIAM SCLAFANI


                         FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

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

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


                    William Sclafani, a Charlottesville police officer, injured his left arm and shoulder while

            playing the role of a restrained suspect during a SWAT team training activity. The City of

            Charlottesville (“the City”) now appeals the decision of the Virginia Workers’ Compensation

            Commission awarding Sclafani temporary total disability from July 21, 2017, through August 15,

            2017 in addition to medical benefits. On appeal, the City argues that the Commission erred in

            finding that Sclafani suffered a compensable, discrete injury by accident arising out of

            employment.1 For the reasons that follow, we reverse the Commission’s finding and remand for

            further fact finding.




                    1
                     In a second assignment of error, the City contends that the medical evidence failed to
            support the full period of disability. Because we reverse the Commission’s finding of an injury
            by accident, it is unnecessary to address this assignment on appeal.
                                            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

prevailing party below,” in this case, Sclafani. Anderson v. Anderson, 65 Va. App. 354, 361

(2015) (quoting Artis v. Ottenberg’s Bakers, Inc., 45 Va. App. 72, 83 (2005)). So viewed, the

facts are as follows.

       On May 9, 2017, Sclafani played the role of a suspect who needed to be restrained for a

SWAT team training activity. The training lasted from approximately 8:00 a.m. until between

4:30 and 5:00 p.m. In his role as a suspect, Sclafani was repeatedly handcuffed, thrown to and

picked up off the ground while in handcuffs. Sclafani testified that while he did feel some mild

discomfort throughout the day, he denied feeling a “pop” or sudden acute pain. In fact, he stated

in his deposition testimony that he advised his doctors that there was no immediate onset of

significant pain. However, as he was leaving the training, Sclafani noticed that he could not

straighten his left arm on the steering wheel. Later that evening, he could not raise his left arm

straight up or down. Sclafani testified that the pain did not really begin until the following day.

       While Sclafani reported his injury to his sergeant, he did not seek treatment with Kristine

Shannon, a nurse practitioner, until May 12, 2017. Shannon advised him to see a specialist if he

did not improve within three weeks. Sclafani ultimately sought treatment from Dr. William T.

Grant, an orthopedist, who gave him a steroid injection and referred him to physical therapy.

Sclafani underwent surgery on his left shoulder on July 26, 2017. On August 10, 2017, the

orthopedist opined that Sclafani could resume light-duty work on August 16, 2017. Sclafani’s

light-duty status was continued on September 7, 2017. On September 28, 2017, Sclafani was

released to recommence full duty work.




                                                -2-
       Sclafani filed a claim alleging injury by accident to his left shoulder and arm and seeking

an award of medical benefits and temporary total disability benefits from July 21, 2017, to

August 16, 2017. The City asserted that Sclafani did not suffer a compensable, discrete injury by

accident. The City further alleged that the medical evidence did not support the period of

disability alleged by Sclafani.

       Following a hearing, the deputy commissioner issued an opinion on July 20, 2018,

finding that Sclafani failed to prove his arm and shoulder injury was compensable. The deputy

commissioner further explained that although Sclafani did have a clearly defined injury, there

was no acute onset of pain. To be compensable, the deputy commissioner concluded that the

Commission would have to broaden the definition of “rigid temporal precision” to include

injuries that occurred at an unidentified point during an eight-hour period. Because Sclafani was

unable to identify a certain point during the eight-hour training at which his injury occurred, the

deputy commissioner denied Sclafani’s claim for benefits.

       Sclafani appealed to the full Commission. The full Commission reversed the deputy

commissioner’s denial of Sclafani’s claim. Based on the factual similarities between the two

cases, the Commission relied in large part on its own decision in Bandy v. Department of Motor

Vehicles, JCN VA00001370700 (Va. Wrk. Comp. Nov. 2, 2018), in reversing the deputy

commissioner’s decision. The Commission found that Sclafani’s case was similar to Bandy in

that “the eight-hour training session . . . provided the necessary rigidity of temporal precision to

constitute one event, and [Sclafani] suffered a ‘discrete and specific’ traumatic injury to his

shoulder as a result.” The City appealed to this Court.




                                                -3-
                                             Analysis

       On appeal, the City contends that Sclafani failed to prove that he suffered a compensable,

discrete injury by accident arising out of employment. The City further argues that Sclafani did

not meet his burden to show an identifiable incident that occurred at “some reasonably definite

time” on May 9, 2017. Finally, the City argues that the medical evidence presented failed to

support the period of disability alleged.

       It is the burden of the City, the appealing party in this case, to demonstrate on appeal that

the Commission’s ruling constituted reversible error. Burke v. Catawba Hosp., 59 Va. App. 828,

838 (2012). “The Commission’s factual findings bind [this Court] as long as credible evidence

supports them,” Riverside Reg’l Jail Auth. v. Dugger, 68 Va. App. 32, 37 (2017) (quoting Van

Buren v. Augusta Cty., 66 Va. App. 441, 446 (2016)), such that “the existence of ‘contrary

evidence . . . in the record is of no consequence,’” City of Waynesboro v. Griffin, 51 Va. App.

308, 312 (2008) (quoting Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 229 (1991)).

“However, whether those facts prove the claimant suffered an ‘injury by accident’ is a question

of law” which this Court reviews de novo. Goodyear Tire & Rubber Co. v. Harris, 35 Va. App.

162, 168 (2001).

       The Virginia Workers’ Compensation Act requires that an injury by accident “aris[e] out

of and in the course of the [claimant’s] employment” to be compensable. Code § 65.2-101. The

claimant must prove, by a preponderance of the evidence, that he sustained a compensable

injury. See Va. Dep’t of Transp. v. Mosebrook, 13 Va. App. 536, 537 (1992). In addition, the

claimant bears the burden of establishing that an identifiable incident occurred at a reasonably

definite time that resulted in an obvious sudden mechanical or structural change in his body that

was causally connected to the incident. See Hoffman v. Carter, 50 Va. App. 199, 212 (2007).

“A gradually incurred injury is not an injury by accident within the meaning of the Act.” Id. at

                                               -4-
213 (quoting Dollar Gen. Store v. Cridlin, 22 Va. App. 171, 175 (1996)). Thus, “injuries

resulting from repetitive trauma, continuing mental or physical stress, or other cumulative

events, as well as injuries sustained at an unknown time, are not ‘injuries by accident.’” Dugger,

68 Va. App at 38 (quoting Morris v. Morris, 238 Va. 578, 589 (1989)). Instead, regarding the

element of timing, the claim regarding the incident must be “bounded with rigid temporal

precision.” Morris, 238 Va. at 589.

       The Virginia Workers’ Compensation Act establishes a no-fault scheme that makes

temporal proof necessary. If the time of the incident cannot be determined, an employer cannot

properly investigate and defend the claim. Id. at 586. However, the Supreme Court and this

Court have held that an incident lasting for more than a few seconds or minutes can be enough to

establish the “rigid temporal precision” required when the surrounding circumstances support the

conclusion. See id. at 589 (holding that the claimant’s inability to identify “whether he fell at

11:35 a.m. or 11:45 a.m.” does not necessarily defeat a claim as long as a claimant can “fix the

time of the occurrence with reasonable accuracy”); Richard E. Brown, Inc. v. Caporaletti, 12

Va. App. 242, 243-44 (1991) (holding that a claimant only needs to prove that an injury

“occur[ed] within a reasonably definite time”).

       The Supreme Court contemplated the question of “whether chilblains that the claimant

suffered as a result of being exposed to cold temperature in a walk-in cooler during a four-hour

period constitute[d] an ‘injury by accident’ under [the Act]” in S. Express v. Green, 257 Va. 181,

183 (1999). The Court found that the claimant did in fact establish an injury by accident because

her “chilblains first appeared during the time that she spent in the cooler, thus at a particular time

and place and upon a particular occasion.” Id. at 189. Further, the Court held that the claimant’s

chilblains resulted from “the performance of a specific piece of work” – the nearly continuous

exposure to the cold of the walk-in cooler for a four-hour period. Id.

                                                 -5-
       This Court applied the same logic in Van Buren v. Augusta Cty., 66 Va. App. 441 (2016),

in which the claimant, a firefighter, was injured during the rescue of a 400-pound man from an

accident in a shower. Id. at 444. Claimant, however, could not identify the specific moment

during the forty-five-minute rescue at which he was injured. This Court held that the claimant

suffered a non-cumulative injury as he was continuously “engaged in a variety of actions that

involved lifting, holding, twisting, pulling, pushing, grabbing, and bending” during the rescue

effort. Id. at 452. We further held that the rescue itself was to be considered “one event,” and

therefore, because the claimant’s injury occurred sometime during the rescue, there was

sufficient evidence to prove the temporal precision requirement. Id. at 455.

       This Court addressed a similar issue in Dugger, again, applying the same reasoning

applied in Green and Van Buren. In Dugger, the claimant, a correctional officer, was injured

while taking part in a four-hour-long defense tactics class during which she participated in

simulated fights, “which logically require[d] pushing, grabbing, bending, and similar motions.”

Dugger, 68 Va. App. at 35. Thus, the claimant’s “movements during the defensive training were

not repetitive in nature.” Id. at 41-42. Further, this Court noted that the claimant’s injury clearly

occurred during the defensive training class that was continuous and uninterrupted, and therefore

sufficiently “bounded by rigid temporal precision,” entitling her to benefits. Id. at 42.

       Most recently, this Court decided Department of Motor Vehicles v. Bandy, No.

1878-18-2 (Va. Ct. App. Apr. 30, 2019).2 Like in this case, the dispositive issue on appeal in

Bandy was not whether the claimant’s injury arose from “repetitive trauma,” but whether his

injury was caused by an event “bounded with rigid temporal precision.” Id. at *4. The claimant

in Bandy was engaged in an eight-hour training session where he was involved in a variety of


       2
          Although not binding precedent, unpublished opinions can be cited and considered for
their persuasive value. Rule 5A:1(f). See Otey v. Commonwealth, 61 Va. App. 346, 351 n.3
(2012) (noting that unpublished opinions are persuasive but not binding precedent).
                                              -6-
defensive techniques, takedowns, holds, and several distinct types of punches. Id. The afternoon

session consisted of four hours of punching drills. Id. The claimant noticed that his wrist started

to swell approximately an hour to an hour and a half after the conclusion of the punching drills.

Id. at *4-5. The next day, the claimant informed the treating physician that he injured his wrist

while “hitting a mannequin.” Id. at *5. He was diagnosed with a fractured hand, and the

medical records indicated that he was injured “while doing defensive tactic punching drills for

work,” during an approximately four-hour window of time. Id. This Court held that his “injury

occurred during a reasonably definite time and was a compensable injury by accident.” Id.

However, we specifically noted that “[r]ead in the context of the Commission’s entire ruling, we

conclude that the Commission’s reference to the ‘eight-hour training session’ may be considered

dicta, as it was not essential to deciding the case.’” Id.

       Judge Russell, in his concurring opinion, states that although he agrees “with the majority

that the statement represents mere dicta, it is an incorrect statement of the law, and thus, is dicta

with the potential to cause great mischief going forward.” Id. at *7 (Russell, J., concurring).

               The eight-hour period that the Commission appears to suggest may
               be sufficient provides no such notice or assurance. By the
               Commission’s own findings, the eight-hour period was not a
               discrete or uninterrupted period of work-related activity because it
               was interrupted by the lunch hour. Such a break in continuity,
               especially given that many activities undertaken during lunch pose
               risks that do not arise from employment differentiates such a time
               period from those in Green, Van Buren, and Dugger. The
               interruption in time and the introduction of events and risks that do
               not naturally arise from the employment render the eight-hour
               period referenced by the Commission too indeterminate to meet a
               claimant’s obligation to identify the incident with temporal
               precision.

Id. at *11. In concluding, the concurrence notes that “the Commission’s assertion amounts to a

rule allowing a claimant to meet the burden of establishing temporal precision” by claiming that

an injury occurred at any unidentified point in a full workday, including risks of employment as

                                                 -7-
well as risks of the neighborhood. Id. at *12. “Such an assertion is an incorrect statement of

law.” Id.

        In this case, the City attempts to distinguish the instant case from Dugger by asserting

that Sclafani was involved in training that spanned eight hours as opposed to the four-hour time

span in Dugger. “[U]nder some circumstances . . . a claimant need not be able to pinpoint the

exact moment of injury in order for it to be compensable as an ‘injury by accident’ under the

Act.” Dugger, 68 Va. App. at 44. 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.” Green, 257 Va. at 189 (quoting Aistrop v. Blue Diamond Coal Co., Inc., 181 Va.

287, 293 (1943)). While Sclafani was involved in an eight-hour training, he testified that he did

not notice any problems during the four hours before lunch. However, at some point during the

four post-lunch hours, he felt a “tweak” but no real pain. As he was driving home from the

training, he felt pain in his left shoulder. At his deposition, Sclafani testified that his left

shoulder pain started on the day of the training while driving home. He later testified that he

believed his left shoulder injury occurred sometime after lunch on the day of the training.

Sclafani further confirmed that there was no “pop” or sudden acute pain.

        It appears from the record, however, that the Commission assumed but failed to find that

Sclafani’s testimony established an identifiable incident with sufficient temporal precision. The

training spanned eight hours, with an interruption for lunch. The assumption that Sclafani

sustained a non-cumulative injury during the last four hours of training was justified based on

Sclafani’s own testimony. However, there was no specific finding to this effect. Therefore, we

remand this case for the Commission to make a factual finding consistent with this opinion as to

whether Sclafani’s injury occurred during the four post-lunch hours of the training.




                                                  -8-
                                          Conclusion

       We reverse the Commission’s decision that Sclafani’s injury met the burden of

establishing temporal precision and remand to the Commission for further fact finding consistent

with this opinion.

                                                                        Reversed and remanded.




                                              -9-
