                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Huff and Malveaux
              Argued by teleconference
UNPUBLISHED




              CITY OF CHARLOTTESVILLE
                                                                          MEMORANDUM OPINION* BY
              v.     Record No. 1815-19-2                              JUDGE MARY BENNETT MALVEAUX
                                                                                MAY 5, 2020
              WILLIAM SCLAFANI


                            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.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                          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.




        “SWAT stands for Special Weapons and Tactics.” Justiss v. Commonwealth, 61
        1

Va. App. 261, 268 (2012).
                                         -2-
       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

                                               -3-
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


       2
          Employer also argues the Commission erred in finding that claimant “suffered a
compensable, discrete injury by accident arising out of employment,” “met his burden to show
an identifiable incident,” and “sustained a non-cumulative injury.”
        We do not address the first two issues because the law of the case doctrine precludes
them from our consideration. The doctrine provides that “[w]here there have been two appeals
in the same case, between the same parties, and the facts are the same, nothing decided on the
first appeal can be re-examined on a second appeal.” Meidan, Inc. v. Leavell, 62 Va. App. 436,
441 (2013) (quoting Steinman v. Clinchfield Coal Corp., 121 Va. 611, 620 (1917)). Thus, the
ruling in the first appeal “is binding on both the [lower tribunal] and the appellate court, and is
not subject to reexamination by either.” Id. (quoting Steinman, 121 Va. at 620). Here, employer
raised both of the first two issues noted above in its prior appeal to this Court. Our ruling in that
appeal became final after this Court denied employer’s petition for rehearing en banc. See City
of Charlottesville v. Sclafani, No. 1999-18-3 (Aug. 14, 2019 order); Code § 17.1-410(A)(2), (B)
(establishing the general finality of this Court’s decisions in cases originating before the
Commission). Thus, our previous opinion established the law pertaining to all issues in this case
                                                 -4-
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).




except the specific issue for which we remanded to the Commission: the factual question “as to
whether [claimant’s] injury occurred during the four post-lunch hours of the training.” Sclafani,
70 Va. App. at 623. Consequently, we consider only the Commission’s finding on that issue.
        Further, because we affirm the Commission’s finding that claimant’s injury occurred at
some reasonably definite time during the last four hours of his training, and because such a
temporally bounded injury necessarily excludes causation by repetitive trauma or other cumulative
events, see Morris v. Morris, 238 Va. 578, 588-89 (1989), we need not address employer’s
argument that the Commission erred when it failed to find that claimant’s injury was cumulative
in nature.
                                                -5-
       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,

                                                 -6-
claimant did not recall experiencing any arm or shoulder pain prior to his lunch break on May 9,

2017. However, after lunch, during the final training scenario of the day, claimant experienced a

“tweak” and “discomfort” when he was “picked up a little funny” by members of the SWAT

team. Claimant recalled that this particular moment “really st[uck] out” in his memory and

stated he had “no doubt” that it was the incident that led to the arm and shoulder problems he

began experiencing after the training. The Commission was free to credit claimant’s testimony

as it did. See Strictly Stumps, Inc. v. Enoch, 33 Va. App. 792, 795 (2000) (noting that the

Commission may consider a claimant’s testimony in determining the cause of his injury).

Because credible evidence in the record supports the Commission’s factual finding that

claimant’s injury occurred during the post-lunch hours of training, we will not disturb that

finding on appeal.

       In turn, that finding supports the Commission’s determination that, like the injury in

Dugger, claimant’s injury here was sufficiently bounded with rigid temporal precision. In

Dugger, the claimant was a correctional officer who participated in a four-hour tactical training

session during which she was “tossed around and taken down” and engaged in simulated fights.

Dugger, 68 Va. App. at 34-35. Walking away at the end of the training, the claimant noticed

pain in her right knee that was followed by swelling later that day. The Commission found that

the claimant was entitled to an award of benefits after she “engaged in a variety of training

exercises and defensive maneuvers over a discrete period of time. . . . [H]er testimony was

credible and supports the finding that she sustained an injury caused by a particular piece of

work occurring at a reasonably definite time.” Id. at 36-37.

       The employer appealed to this Court and argued, as employer here argues, that the

claimant had not proved an injury by accident because her injury was not “bounded with rigid

temporal precision.” Id. at 42 (quoting Morris, 238 Va. at 589). We disagreed and affirmed the

                                               -7-
Commission, noting that “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.’” Id. at 44. We concluded that the

claimant’s “injury was . . . linked precisely to her defensive training, since she felt knee pain as

she walked away from class.” Id. at 42. Because the claimant had not “walk[ed] into the

physical training with a knee injury,” it was “clear that [her] injury occurred during the four-hour

defensive training class—and thus, her injury is sufficiently ‘bounded by rigid temporal

precision.’” Id. (quoting Morris, 238 Va. at 589).

       Here, as noted above, and as in Dugger, credible evidence supports that claimant suffered

his injury during a discrete, four-hour period—the period after lunch when, during the “last

scenario . . . at the end” he felt a “tweak” and “some discomfort.” Because claimant, like the

claimant in Dugger, did not enter the approximately four-hour training period with an injury but

did note an injury shortly after the training ended, we reject employer’s argument that the instant

case is distinguishable from Dugger and thus that claimant’s injury is insufficiently bounded by

rigid temporal precision. Rather, we conclude, as did the Commission, that the instant case is

analogous to Dugger. We thus affirm the Commission’s finding that claimant’s injury during the

post-lunch training session was sufficiently temporally precise to establish a compensable injury.

                                          Attorney’s Fees

       Claimant argues employer lacks reasonable grounds for its appeal and thus he is entitled

to an award of attorney’s fees and costs pursuant to Code § 65.2-713(A).

       Code § 65.2-713(A) provides, in pertinent part, that “[i]f . . . any court before whom . . .

proceedings are brought or defended by the employer . . . shall determine that such proceedings

have been brought, prosecuted, or defended without reasonable grounds,” the court may “assess

against the employer . . . the whole cost of the proceedings, including a reasonable attorney’s fee,

to be fixed by the Commission.” With respect to attorney’s fees, “[i]f an employer refuses to pay

                                                 -8-
a claim, reasonably believing that it is not compensable, and in the course of its investigation the

grounds for refusal are not so contradicted as to be shown unfounded, then the subsequent

defense is reasonable,” even where the employer’s defense “is later proven misplaced or in

error.” Volvo White Truck Corp. v. Hedge, 1 Va. App. 195, 201 (1985).

       Here, employer had reasonable grounds for its appeal. This Court remanded this matter

to the Commission after concluding it had assumed but failed to find that claimant’s testimony

had established “sufficient temporal precision” for his injury. Sclafani, 70 Va. App. at 623. The

Commission was instructed on remand to “make a factual finding . . . as to whether [claimant’s]

injury occurred during the four post-lunch hours of . . . training.” Id. The Commission made

such a finding, concluding that claimant sustained his injury during the last four hours of

training. Though we reject employer’s argument that the Commission erred, employer’s appeal

of this new factual finding was not so contradicted as to be shown unfounded. Therefore, we

deny claimant’s request for attorney’s fees.

                                       III. CONCLUSION

       The record supports the Commission’s finding that claimant’s injury occurred at some

reasonably definite time during the last four hours of his training on May 9, 2017. Consequently,

we affirm the Commission. Claimant’s request for attorney’s fees and costs is denied.

                                                                                          Affirmed.




                                                -9-
