Commission Reasserts Actual Risk Test

A recent Full Commission Opinion issued on January 10, 2023, by Commissioner Rappaport details the nuances regarding a compensable versus non-compensable injury by accident in today’s legal landscape in the context of the actual risk a Claimant must prove.

In Agyemang v. The Gardens at Warwick Forest, JCN VA00001874767, the Full Commission denied a claimant’s claim for benefits relating to an accident that occurred on May 1, 2021. The Deputy Commissioner had previously awarded benefits and the Full Commission reversed and vacated the award.

The facts of this claim are significant. The claimant had testified that she was injured when placing several small, light plastic coffee mugs on top of a refrigerator in the kitchen. During the course of doing so, claimant, with a coffee cup in her hand, jammed her left hand on the refrigerator. The refrigerator was slightly below waist level.

The testimony of the claimant admitted that the cups were very lightweight. As she was placing a cup on top of the refrigerator, her left hand lunged forward.

What is significant about this Opinion is that the Full Commission discusses the actual risk that a claimant must prove, exposing the injured worker to a particular danger outside that of exposure experienced by the general public. The Full Commission detailed that the claimant can satisfy the actual risk test by proving that the workplace condition is peculiar, unusual, or different than a risk to that of which the general public is exposed. This is similar to the claimant testifying that steps that he or she was walking down were unusual, i.e. slightly higher or peculiar in their structure, such as steeper than normal set of steps.

In this case, the claimant had failed to meet the actual risk test. Specifically, the Full Commission noted that the defendant’s written statement, on appeal, noted “there was no evidence of anything unusual about her movements, the cups, or the refrigerator. There was no evidence of an awkward position or unusual work-related exertion.” Given that the claimant simply testified that her left hand jammed against the refrigerator, the Full Commission found that the claimant had failed to demonstrate an actual risk of the employment as required under the Act. What appears to have been missing was proof that a risk from the employment caused or contributed to her injury.

This Opinion demonstrates the longstanding requirement that the claimant identify an actual risk of the employment as a cause of her accident. There must be testimony or evidence that the condition of the claimant’s work caused or contributed to the injury. The Full Commission notes that there was no evidence as to the configuration of the kitchen or implication that the area was cramped or crowded. The claimant must demonstrate some causative risk in order for the case to be compensable.

Commissioner Marshall dissented. The dissent’s argument noted that the claimant identified the precise action that caused her injury. The dissent identified several cases in which benefits were awarded absent description of the action, as “awkward.” Specifically, the dissent cited Morton v. Henrico (City of), VWC File No. 203-82-45 (February 27, 2002) whereby the claimant was awarded benefits when the claimant described hitting his back on a truck. In Brothers v. City of Norfolk, JCN: VA0000 1070435 (June 10, 2016), a claimant was awarded benefits when she knocked some timesheet paperwork off of her desk, and as she hastily reached out to keep the documents from falling behind the desk, she stuck her thumb on the edge of the desk, sustaining an injury. However, the full Commission noted that the dissent’s reliance on the precise action that causes claimant’s injury is not proof of causative, employment related risk. The full Commission noted “a collective summary of conditions does not necessarily prove risk.”

This Opinion details how the claimant has a burden of proving that her accident was caused by risk of the employment. Testimony or evidence must be presented on behalf of the claimant to expose the claimant to an employment related risk. The fact that an injury occurs at work, absent additional evidence, does not make an accident compensable. It is insufficient for the claimant to identify the precise action that he or she takes as a cause of the accident. The claimant must identify some peculiar risk, awkward movement, taking the accident outside of a risk to which the general public is exposed. Here, the Claimant failed to do so.

This Opinion serves as a reminder of all of the elements as required by the Act. It also demonstrates how an appeal to the Full Commission may hold value for what initially may appear to be a compensable injury by accident. In this case, the Opinion serves as excellent caselaw for how insurance adjusters should evaluate initial claims and causative facts of an injury at work.

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