Virtually every jurisdiction’s comp act has a “by accident” provision of some sort in its definition of compensable injury [for an extended discussion, see Larson’s Workers’ Compensation Law, § 42.01, et seq.]. About half the states actually employ the term “injury by accident;” at least 8 more use the phrase “accidental injury.” Others, while not using the term to define injury, nevertheless incorporate the “by accident” requirement into other portions of the comp act so that the effect is essentially the same. Only a very few states [e.g., Ky. Rev. Stat. § 342.0011 and Nev. Rev. Stat. Ann. § 616A.265] omit the term altogether, but even then the statutory requirements for establishing a compensable injury are often quite similar. The Nevada statute, for example, defines “injury” or “personal injury” as “a sudden and tangible happening of a traumatic nature, producing an immediate or prompt result which is established by medical evidence ….” That sounds a lot like “by accident.”
I contend, however, that in spite of its pervasive presence within workers’ compensation law, the “by accident” requirement is now largely ignored by the parties and the courts. A recent decision from what at least used to be a “hard-line” jurisdiction on the issue, Virginia, illustrates my point. In Dovell v. Cofeewood Correction Ctr., 2012 Va. App. LEXIS 17 (Jan. 24, 2012), the Court of Appeals of Virginia reversed a decision by the state’s Workers’ Compensation Commission that had denied a claim filed by a correctional officer who sustained a back injury when he moved from his office chair to answer the nearby door. The appellate court held that because of unique circumstances–his job required that he sit in a somewhat elevated chair that contained no “safety bar” near its base–the officer’s action in sliding down from the chair to get to his feet was not an action that he would have been equally exposed to apart from the conditions of his employment. The court, therefore, remanded the case for further consideration.
Passing Reference to “By Accident” Requirement
The appellate court actually gave initial lip service to the “by accident” requirement. It noted that in order to obtain compensation for his injuries, the officer was required to prove that he suffered an injury by accident arising out of and in the course of the employment [Va. Code § 65.2-101, emphasis added] and that whether an employee had suffered an “injury by accident” was a mixed question of law and fact. Thereafter, however, the court limited its analysis to “whether the raised chair and the movements claimant made in his attempts to get down from the chair created the requisite connection between the conditions of his employment and the injury he suffered.” That is to say, the Virginia court concentrated on the “arising out of and in the course of the employment” (“AOE/COE”) issue; it didn’t see any reason to consider whether any accident had occurred.
Virginia’s “Stairs Analysis”
At the heart of the dispute was the employer’s contention that the officer injured his knee when getting down from the chair and that the drop from the chair was no different from stepping down a normal step. The Commission had agreed with the employer, relying upon a number of Virginia decisions that utilized a “stairs analysis,” that where an employee sustains injury while merely walking down a normal flight of steps or stairs, there could be no recovery.
Contortion of the Body
The Court of Appeals, however, found the “stairs analysis” inapposite, indicating another decision, First Federal Sav. & Loan Asso. v. Gryder, 9 Va. App. 60, 383 S.E.2d 755, 6 Va. Law Rep. 241 (1989), was more logically similar. In Gryder, the court affirmed the Commission’s conclusion that a bank teller suffered a compensable injury when she contorted her body while sitting on a raised stool to answer a phone. The court observed that in Gryder, it had specifically held: “The contortion of the body, as described, is not a risk to which all persons are equally exposed. Phrased differently, the injury came from a hazard to which Ms. Gryder would not have been equally exposed apart from the conditions of employment” [383 S.E.2d at 759].
The appellate court continued, indicating that in the instant case the undisputed evidence demonstrated that the officer “had to contort his body to slide down from the raised chair before his feet would reach the ground each time the doorbell to the infirmary rang.” The court found that, consistent with its holding in Gryder, that claimant’s action in sliding down from a raised chair for his feet to reach the ground to accomplish his job-related tasks was not an action that he would have been equally exposed to apart from the conditions of his employment. Thus, the officer proved by a preponderance of the evidence that his injury arose out of his employment.
Where’s the Accident?
The court’s discussion makes perfect sense if one is analyzing the AOE/COE issue. After all, the injury must not only generally take place at a time and place where the worker should be as he or she furthers the employer’s business–the “course of employment” component–it must also spring from some risk that is inherent within that employment–the “arising out of employment” component.
But where’s the accident? The Virginia statute, like any virtually all others, requires an accident. Where was the interruption in the normal work routine? It can’t be supplied by the argument that the officer had to get down from the slightly elevated chair; from all indications, he’d moved from the chair to a standing position in order to answer the door on hundreds, if not thousands, of other occasions. What does the Virginia Act, or any other Act, really mean by “accidental?”
Accidental “Cause” or Accidental “Result”
It has been said that “[t]he basic and indispensable ingredient of ‘accident’ is unexpectedness” [Larson, § 42.02]. A correctional officer gets down off his chair many times a day. He gets down an additional time and injures his back. Is the unexpected or unlooked for item the cause or is it the effect? If it’s the cause–the outward circumstances immediately preceding the injury–nothing unexpected can be shown by the officer. But if it is the particular result that may have been unlooked-for, then the injury can be described as accidental.
The difficulty in focusing on the result, rather than the circumstances immediately preceding the injury, is that to do so renders the “by accident” requirement meaningless. Most workplace injuries are unanticipated. If all that is necessary is the showing of an unexpected result, one wonders why the legislature took the trouble of including it as a requirement at all; it’s almost always present. If the appropriate focus is on the unexpected result, rather than the circumstances immediately preceding the injury, one might as well jettison the ‘by accident’ requirement and move on the AOE/COE issue. Oh, but wait! As noted above, that’s exactly what the Virginia court did.