eNotes: Workers’ Compensation – April 2022 – Virginia

SIGNIFICANT CASE SUMMARIES

VA CASE SUMMARY

Johnson v. General Dynamics Corp.
Virginia Court of Appeals
No. 0645-21-3

Decided: March 8, 2022

The first-aid doctrine does not allow a compensable consequence injury when the first injury was non-compensable, nor when the Claim for Benefits did not specifically include the negligent first-aid injury.

Background

Claimant’s wife brought the claim on behalf of the decedent, who suffered sudden cardiac arrest on August 28, 2017 while exposed to radar waves. A co-worker noticed the decedent was bent over in his chair, and started CPR. Those attending to the decedent had to call multiple times for a defibrillator, which arrived 5-6 minutes later. Claimant’s subsequent Claim for Benefits alleged “during radio frequency radiation testing, radar waves triggered arrhythmia, cardiac arrest and respiratory arrest that caused death.” The Claim for Benefits did not mention any negligent first-aid, but it was brought up at the hearing as an alternative theory of recovery.

The Deputy Commissioner denied the claim, not on lack of causation grounds, but instead finding that the persistent exposure to radiation over the prior three weeks did not culminate in an identifiable incident. Therefore, the alternative theory of negligent first-aid was a compensable consequence claim, which failed because the underlying claim was denied. Alternatively, since negligent first aid was not specifically mentioned on the original Claim for Benefits filed, it was not properly asserted, and bringing it forward as a “claim” at the hearing was barred by the statute of limitations. The Full Commission affirmed, and Claimant appealed to the Virginia Court of Appeals.

Holding

The Court of Appeals affirmed. Even if the Commission found sufficient evidence of causation between the radar and the cardiac arrest, it did not err in treating the multi-week exposure as the possible identifiable incident. Therefore, it was without temporal precision. The negligent first-aid theory fails as a compensable consequence, but it also was not properly pled as a new and separate injury. A dissent argued that it was properly pled, but the majority found that loss of chance of survival constituted a second and separate injury, and the claim’s description of how the accident occurred was insufficient.

Takeaway

It is always crucial to pay attention to the theories of liability included in the Claim for Benefits, as it can support a defense if the claim was not properly pled.

Any questions regarding this case can be addressed to Mike Bliley, Esquire at (571) 464-0435 or mbliley@tthlaw.com.