A Virginia student assistant who suffered injuries in both knees after being kicked 25 times over a period of 11 days is not entitled to workers’ compensation benefits.
The Virginia Workers’ Compensation Commission (WCC) upheld a deputy commissioner’s denial of benefits because, in keeping with the state’s workers compensation law, an injury that is due to cumulative trauma, and which did not stem from an identifiable incident, is not compensable as a workplace injury by accident.
The claimant, a behavior assistant for the Loudoun County Public Schools, filed a claim on July 18, 2022 alleging that he sustained a compensable injury by accident to both knees on September 30, 2021. At his benefits hearing, the assistant testified that each day over an 11-day period prior to September 30, 2021, a student kicked him in his knees, and attacked him and his co-workers. He estimated being kicked 20 to 25 times. He sought medical treatment on February 27, 2023. His doctor diagnosed “prepatellar bursitis both knees” due to “kicked in both knees repeatedly by student.”
The school system objected to his workers compensation claim on the ground that he did not suffer a sudden, structural bodily change due to an identifiable incident as required under Virginia law. Last September, a deputy commissioner denied the claim.
The assistant admitted that his bilateral knee injury was not sudden but happened over time and was not the result of one identifiable event.
The record was consistent with his admission. The first report of injury on April 29, 2022 shows that “over the course of the week in September the claimant was kicked approximately 25 times.” During a recorded interview with the claim administrator on July 13, 2022, the claimant explained, “It’s 11 days straight so it wasn’t just that instance you know that particular day.” Also, the claimant’s claim form filed July 18, 2022 contains the following description of how the injury occurred: “Working in an intense B.A. Program. A violent teen kicked me repeatedly in both knees.” Lastly, and significantly, his physician’s report on March 14, 2024 connected the claimant’s prepatellar bursitis of both knees to this history: “kicked in both knees repeatedly by student.”
Thus the WCC agreed with the deputy commissioner that his bilateral knee injury is the result of cumulative trauma and therefore not compensable under the workers compensation act.
The commission cited a case from 2007 that set forth the rule that to prove an injury by accident, the evidence must demonstrate an identifiable incident; that occurs at some reasonably definite time; an obvious sudden mechanical or structural change in the body; and a causal connection between the incident and bodily change.
In another case, from 1985, an injury due to cumulative trauma was found not compensable because it did not stem from a sudden identifiable incident or sudden event. In a third, this from 1996, job-related impairments resulting from “cumulative trauma caused by repetitive motion, however labeled or however defined, are, as a matter of law, not compensable under the present provisions of the Act.”
The school worker has the right to appeal the decision to the Court of Appeals of Virginia.
Topics Workers' Compensation Talent Virginia K-12
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