THE VIRGINIA WORKERS' COMPENSATION COMMISSION
L. Whitt, Jr. (Megan Kerwin Clark; Whitt & Del Bueno, PC,
on brief), for appellants.
brief or argument for appellee.
Present: Judges Humphreys, Decker and O'Brien Argued at
J. HUMPHREYS, JUDGE
Regional Jail Authority and VML Insurance Programs
(collectively, "employer") appeal the January 3,
2017 decision of the Workers' Compensation Commission
(the "commission") affirming the deputy
commissioner's determination that Morrisa Dugger
("Dugger") "sustained a compensable injury by
accident arising out of and in the course of her employment .
. . and awarding medical benefits." Employer contends
the commission erred because there was no credible evidence
to support a finding that Dugger suffered an "injury by
a correctional officer with employer, filed a Workers'
Compensation claim on March 1, 2016, alleging she sustained a
work-related injury to her right knee during the course of
her employment with employer. At the evidentiary hearing
before a deputy commissioner on June 22, 2016, Dugger
testified that on September 22, 2015, Dugger was in training
on "defensive tactics" for employer. The physical
training lasted from 8:00 a.m. to 12:00 noon, with an
in-class portion and test to follow in the afternoon. During
the physical training, Dugger testified, "I was tossed
around a bit, which is usual because we, we show the
[defensive] moves on each other in partners, we rotate
partners every move that we do. And then I was tossed around
and taken down, simulated fights, and that was it."
Dugger first noticed pain in her right knee as she was
walking away from the physical portion of the class, and
noticed swelling in her knee later that day at Patient First.
The pain in her right knee intensified when she went up the
steps that day. Dugger never had problems with that knee in
reported the pain to her instructor, and was eventually told
by one of her supervisors that she should go to Patient
First. Dugger arrived at Patient First at "almost
3:00" in the afternoon on the day of the injury. She was
prescribed pain medication for the swelling in her knee and
had "a few follow up visits" at Patient First. The
medical records entered into evidence indicated that Dugger
had sustained a right knee sprain during her defensive
training. The physician also recommended that Dugger be
restricted to "light duty work restrictions: desk job
mainly" until September 26, 2015. The medical record for
Dugger's follow-up appointment the next day noted that
Dugger should avoid bearing weight on that knee and that an
orthopedic referral might be necessary.
had another follow-up appointment with Patient First on
October 9, 2015; the medical record for that date states,
"Right knee pain has almost completely resolved, but
[Dugger] is having continued cracking in the knee and
residual swelling." The treating physician on that day
noted that Dugger "[m]ay have a torn meniscus. Will
[follow up] in [one] month. Will refer to orthopedics if
still symptomatic." At the follow-up appointment on
November 13, 2015, the physician commented, "Clinically
has an asymptomatic torn meniscus. Will [follow up] with the
orthopedist for further evaluation."
deputy commissioner issued his opinion on June 27, 2016, and
Though the claimant did not articulate a specific onset of
pain during her morning physical tactics training, she did
reference "take downs" and being tossed around
during that period, and to her doctor thereafter spoke of
feeling "discomfort in the right knee" and the next
day of "instant right knee pain" during training.
The [c]ommission finds the claimant a bit shy in her
testimony, but nevertheless descriptive of an injury by
accident, a knee sprain, at a reasonably definite period of
time. Therefore, the [c]ommission finds the claimant has
described an injury by accident which arose out of and in the
course of employment on the morning of September 22, 2015.
deputy commissioner then awarded Dugger medical benefits for
treatment of the sprained knee, and employer demanded a ...