In Part I of our discussion of Virginia’s workers’ compensation law, we noted that being injured in an “unsafe workplace” provides the injured worker no right to sue her employer in Virginia courts. Injuries received “in the course of” and “arising out of” the worker’s employment are limited by and compensated only according to the Virginia Workers’ Compensation Act (the “Act”).
The outcome of each worker’s case depends on its specific facts. Virginia law requires the worker to promptly report an injury or a disease. Fear of losing valuable wages or, even worse, a job, often cause workers to “work through the pain” and “hope it will just resolve itself”. Unfortunately, delays in reporting create the opportunity for an insurance company or employer to challenge the credibility of a reported event or condition. An injured worker or a worker suffering an occupational disease should seek legal advice before giving recorded statements to an insurance company about how the injury or condition arose, but should not fear a prompt and accurate report to an immediate supervisor.
A worker’s physical ailments, to receive compensation under the Act, must qualify as either an “injury by accident” or an “occupational disease”. Has there been a sudden, obvious mechanical change in the worker’s body, which occurred at an identifiable and distinct point in time? If so, an “injury by accident” may have occurred. Is the diagnosed condition a “disease”, not an “injury”, and is it apparent that it arises from some risk clearly identified to the employment and a risk to which the worker and the public are not generally exposed to outside of the workplace? Perhaps it is an “occupational disease”.
Until the mid 1990’s Virginia law more liberally interpreted what could be an occupational disease, so that repetitive injuries, also called cumulative trauma, were compensated under the Act. Such injuries are commonplace, particularly in manufacturing. For example, a tire builder who uses his arms and hands throughout a work shift to “throw” or pull taut in place a piece of tread applied to a machine, can injure shoulders or fingers, suffering a rotator cuff tear or carpal tunnel syndrome. Virginia appellate courts, however, noted that these conditions were not “diseases” in the medical sense, even though related to the work, and did not occur at a specific, identifiable moment causing a sudden and obvious mechanical change in the worker’s body. Thus repetitive injuries, or cumulative traumas, no longer receive compensation, even if they arise out of and in the course of the employment, because they are neither “injury by accident” nor “occupational disease”. A significant number of injured workers lost their workers’ compensation remedy, even though it was clear, to the reasonable observer, the worker’s suffering came from the workplace. So far, there has been no legislative relief, except for those suffering from carpal tunnel syndrome, which condition has been defined as an occupational disease through legislative compromise.