COURT OF APPEALS OF VIRGINIA
Present: Judges Ru ssell, Malveaux and Senior Judge Clements Argued at Richmond, Virginia

DEPARTMENT OF MO TOR VEHICLES/ COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION * BY v. Record No. 1878-18-2 JUDGE JEAN HARRISON CLEMENTS APRIL 30, 2019 JOHN H. BANDY

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Adam L. Katz, Assistant Attorn ey General (Mark R. Herring, Attorney General; Samuel T. Towe ll, Deputy Attorney General; Ta ra Lynn R. Zurawski, Section Chie f, on briefs), for appellant. Horace F. Hunter (Hunter & Everage, on brief), for appellee.
John H. Bandy (claimant) fracture d his left wrist during a tra ining session connected to his employment as a law enforcemen t agent with the Department o f Motor Vehicles (DMV). DMV appeals the decision of the V irginia Workers’ Compensation Commission (Commission) awarding medical benefits to claimant. 1 DMV argues that the C ommission erred in making “irreconcilable” factua l findings that claimant’s injury occurr ed during both the entire one-day, eight-hour training session a nd the four-hour afternoon punchin g session. We affirm the Commission’s decision.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.

1 The Commission denied claimant’ s request for temporary total d isability benefits, and that ruling was not appealed.UNPUBLISHED- 2 - BACKGROUND On appeal, “[t]his Court must view the evidence in the light m ost favorable to the prevailing party before the c ommission.” Samartino v. Fairfax Cty. Fire & Rescue, 64 Va. App. 499, 502-03 (2015). So viewed, the evi dence established that c laimant was assigned to participate in a five-day defens ive tactics course beginning Au gust 14, 2017. Training took place from 8:00 a.m. to 5:00 p.m. each day, with a one-hour lunch bre ak between the morning and afternoon sessions. On August 18, 2017, claimant performed several maneuvers in th e morning session that involved twisting his hand and wri st backwards and forcibly ben ding his wrist forward. He also threw different types of punches at another trainee who blocked the punches with his arms. During the training exercises, th e participants switched roles between officer and suspect. After lunch, claimant participated i n drills in which he punched a ha rd rubber mannequin for two to three minutes at a time. The f inal drill of the day required c laimant to hit four different mannequins in succession multiple times. Claimant described th e exercise as “intense” and said that he hit the mannequins hard e nough to make them “jump[].” Claimant estimated that he threw a total of 125-200 punches of various types with his left hand. Claimant went home after the training ended at 5:00 p.m. Betw een 6:00 and 6:30 p.m., his watch began to feel tight on his left wrist. He thought he probably had strain ed his wrist, as it had not been swollen earlier in t he day. Claimant put an ice p ack on his wrist, which slightly alleviated his discomfort. Wh en he awoke the next morning, his wrist had “blown up like a balloon.” Claimant went to a local urgent care center for treatment on August 19, 2017. He reported to a nurse practitioner th at he had injured his left w rist while “hitting a mannequin” during a police training session. A n x-ray showed a fracture t o his left wrist. On August 21,- 3 - 2017, an orthopedic hand surgeon eva luated claimant. The docto r’s record reflected that claimant had injured his wr ist on August 18, 2017 “while doing defensive tactic punching drills for work.” The report stated t hat claimant had experienced “si gnificant pain[,] swelling[,] and discomfort following an episode of heavy contact and impact act ivity doing drills while working in a training exercise for his e mployment.” The doctor diagnos ed claimant’s injury as a “comminuted distal radius fracture of left wrist.” Appellant filed a claim with the Commission for benefits based on the August 18, 2017 injury to his wrist. Following ahearing, the deputy commissio ner found that claimant had not proved a compensable injury by acci dent because “the evidence i n the record suggest[ed] that the claimant’s injury occurred gra dually over a peri od of time as the result of repetitive . . . punching during the afternoon of August 18, 20 17.” Claimant requested r eview. The full Commission reversed the deputy commissioner, finding t hat claimant’s wrist injury did not arise from repeti tive events but was a “discrete and specific injury” attributed to “defensive tactic punching drills for work.” 2 The Commission noted tha t “[t]he eight-hour training session on August 18, 2017 duri ng which [claimant] participated provide d the necessary rigidity of temporal precision t o constitute one event.” The C ommission concluded, however, that “[t]he defensive tactic s punching training undertaken on A ugust 18, 2018 [sic] was one ‘piece of work’” and that claim ant “sustained an injury caused by a particular piece of work occurring at a reason ably definite time.”
ANALYSIS As the appellant in this case, DMV must demonstrate that the Co mmission’s ruling was reversible error. See Burke v. Catawba Hosp., 59 Va. App. 828, 838 (2012). “[W]hether a

2 DMV does not challenge the Commi ssion’s finding that claimant’ s injury did not arise from repetitive events.- 4 - claimant suffered ‘an “injury by accident” presents a mixed que stion of law and fact, because it involves both factual findings and the application of law to th ose facts.’” Riverside Regional Jail Auth. v. Dugger, 68 Va. App. 32, 37 (2017) (quoting Van Buren v . Augusta Cty., 66 Va. App. 441, 446 (2016)). The Commission’s factual findings are bindin g on appeal if supported by credible evidence, but “[w]hether those facts prove the claiman t suffered an ‘injury by accident’ is a question of law.” Id. Thus , “we review that portion of t he Commission’s decision de novo. ” Van Buren, 66 Va. App. at 446. To be compensable under the Virginia Workers’ Compensation Act , an injury by accident must “aris[e] out of and in the course of the [claiman t’s] employment.” Code § 65.2-101. The claimant must prove, by a preponderance of the evidence, that an identifiable incident occurred at some reasonab ly definite tim e, resulting i n an obvious sudden mechanical or structural change in his body tha t is causally connected to the incident. See Hoffman v. Carter, 50 Va. App. 199, 212 (2007); Va. Dep’t of Transp. v. Mosebrook, 13 Va. App. 536, 537 (1992). “[A] gradually incurred injury is not an injury by accident wit hin the meaning of the Act,” Hoffman, 50 Va. App. at 213 (quotin g Dollar Gen. Store v. Cridl in, 22 Va. App. 171, 175 (1996)), so that “injuries resul ting from repetitive trauma, co ntinuing mental or physical stress, or other cumulative events, as we ll as injuries sustained at anunknown time, are not ‘injuries by accident,’” Dugger, 68 Va. App. at 38 (quoting Morris v. Morris , 238 Va. 578, 589 (1989)). Here, the parties agree that c laimant’s injury did not arise f rom “repetitive trauma.” Id. Thus, the dispositive issue is whe ther claimant’s injury was caused by an event “bounded with rigid temporal precision.” M orris, 238 Va. at 589. The eviden ce established that claimant fractured his left wrist on August 18, 2017, during the afterno on training session t hat consisted of four hours of punching drills. Claim ant’s wrist was not swolle n at the beginning of the day’s training, and he first noticed swe lling in his wrist within six ty to ninety minutes after he had- 5 - finished the punching drills. W hen he sought medical treatment the next day, he reported that he had injured his wrist while “hi tting a mannequin.” The records of the hand surgeon who evaluated claimant several days l ater reflected that claimant h ad fractured his left wrist on August 18, 2017, “while doing defensiv e tactic punching drills for work.” Accordingly, claimant proved that his injury occurred du ring a reasonably definite ti me and was a compensable injury by accident. See Dugger, 68 Va. A pp. at 41-44 (affirming Commi ssion’s award of benefits to claimant, who had injured her rightknee during a four-hour def ensive tactics tr aining class). DMV acknowledged at oral argumen t that its complaint, in fact, was not with the Commission’s finding that claima nt’s injury occurred during the afternoon punching session. Rather, DMV disagrees with the C ommission’s statement in its de cision that “[t]he eight-hour training session on August 18, 2017 . . . provided the necessar y rigidity of temporal precision to constitute one event.” DMV cont ends that the statement cannot be reconciled with the Commission’s finding that claima nt’s injury occurred during the afternoon punching drills. 3
Read in the context of the Commission’s entire ruling, we conc lude that the Commission’s reference to the “ eight-hour training session” maybe considered dicta, as it was not essential to deciding the case. See, e.g., Newman v. Newma n, 42 Va. App. 557, 565-66 (2004) ( en banc ) (explaining that portions of adecision that are not essentia l to the disposition of

3 DMV also asserts that the state ment conflicts with Morris, whi ch held that to establish “an ‘injury by accident,’ a claimant must prove that the cause of his injury was an identifiable incident or sudden precipitating e vent and that it resulted in an obvious sudden mechanical or structural change in the body .” Morris, 238 Va. at 589. DMV posits that the Commission’s “eight-hour” comment will lead to a n easing of the Morris stand ard, resulting in an employee claiming he is entitled to bene fits simply because his injury “ happened some time while he was at work.” That is not the fact of this case, however, as the r ecord established that claimant’s injury occurred during the afternoon punching drills, a period “bounded with rigid temporal precision,” as required by Morri s. Id.; see Dugger, 68 Va. App . at 42. Further, the Commission’s comment was dict a and does not establish binding p recedent. See Newman v. Newman, 42 Va. App. 557, 566 (2004) ( en banc ) (“ Dicta cannot ‘serve as asource of binding authority in American jurisprud ence.’” (quoting United States v . Pasquantino, 336 F.3d 321, 329 (4th Cir. 2003) ( en banc ))).- 6 - a case are dicta and do not cons titute binding authority). The Commission clearly found that claimant’s injury by accident oc curred during the punching dril ls that took place in the afternoon training session, and the record s upports that finding. Thus, we affirm the Commission’s award of medical benefits to claimant. Affirmed.- 7 - Russell, J., concurring. I fully concur in both the reas oning and result of the majority opinion. The evidence was sufficient to support a conclusi on that the injury occurred dur ing the afternoon session, and the Commission so found. 4 As DMV concedes, such a finding r enders this case indistingui shable from this Court’s decision in R iverside Reg’l Jail Auth. v. Dug ger, 68 Va. App. 32 (2017). Accordingly, as the majority concludes, the Commission did not err in awarding benefits to claimant. I write separately to address the Commission’s assertion that “[t]he eight-hour training session on August 18, 2017 during which [ claimant] participated provided the nece ssary rigidity of temporal precision to constitu te one event.” Although I agr ee with the majority that the statement represents mere dicta , it is an incorrect statement o f the law, and thus, is dicta with the potential to cause great m ischief going forward. As the Commission opinion acknowl edges, a claimant, to establi sh that he has suffered an injury by accident, must prove “(1) an identifiable incident ; (2) that occurs at some reasonably definite time; (3) an obvious sudde n mechanical or structural c hange in the body; and (4) a causal connection between the inc ident and the bodily change.” Hoffman v. Carter, 50 Va. App. 199, 212 (2007) (quoting Chesterfield Cty. v. Dunn, 9 Va. App. 475, 476 (1990)). With respect to the timing requirement, it is well established that the clai m regarding the alleged incident must be “bounded with rigid temporal pr ecision.” Morris v. Morris, 238 Va. 578, 589 (1989); see also Aistrop v. Blue Diamond Coal Co., 181 Va. 287, 293 (1943) (hold ing that an alleged incident

4 Although the record often referen ces “punching drills,” the Co mmission expressly credited evidence that the i njury occurred during “the punching drill.” It note d that “claimant consistently attributed his injury to this drill. Dr. McDermot t, the treating physician, stated a causal relationship between the l eft wrist fracture and the pun ching drill.” As DMV concedes, any fair reading of the record lea ds to the conclusion that wha tever activities made up “the punching drill” occurred in t he afternoon session.- 8 - “must be shown to have occurred a t some reasonably definite tim e” (internal quotation marks and citation omitted)). Although requiring such temporal proof may seem harsh in indiv idual cases, the necessity of such a rule in a no-fa ult regime such as that established by the Virginia Workers’ Compensation Act is apparent: “ [I]f the time of the causative event cannot be fixed, the employer will be unable to investigate the claim and defend it[ .]” 5 Morris, 238 Va. at 586; see also Aistrop, 181 Va. at 293 (noting that “if the event cannot be fixed with reasonable certainty” there is an increase d risk of “fraud”). The “bounded by temporal precision ” requirement does not mean that a claimant must identify the exact minute or sec ond that the incident or injuryoccurs. See, e.g., Morris, 238 Va. at 589 (recognizing that the inabi lity of a claimant to identif y “whether he fell at 11:35 a.m. or 11:45 a.m.” does not defeat a cla im so long as the claimant can“fix the time of the occurrence with reasonable accuracy”); see Richard E. Brown, Inc. v. Capor aletti, 12 Va. App. 242, 243-44 (1991) (stating that a claimant need not prove that the inciden t and injury “occur[ed] within a specific number of seconds or min utes” so long as he proves it “occur[ed] within a reasonably definite time” (internal quotation marks and citation omitted)) . Thus, both the Supreme Court and this Court have recognized t hat the description of an event lasting longer than mere seconds

5 This is especially true given V irginia’s rejection of the posi tional risk doctrine. See, e.g., Baggett Transp. Co. of Birmingham, Ala. v. Dillon, 219 Va . 633, 637-38 (1978). Although a claimant’s burden to demonstrat e that his inju ry arises out o f his employment is a distinct requirement, it often will be tie d in a practical sense to the requirement that a claimant prove with temporal precision when the incident and resulting injury occurred. Injuries can and do occur in the workplace due to compensable causes and causes tha t are not compensable because they are mere risks of the ne ighborhood, such as climbing stair s or eating ordinary foods. See Bernard v. Carlson Companies-TGIF, 60 Va. App. 400 (2012). Bec ause a twisted knee can be the result of a compensable cau se that occurs at 10:00 a.m. or the result of slipping on ordinary stairs, a non-compensable cause, that occurs fiv e hours later i n the workday, a claimant must be able to specify when the incident occurred to allow the claim t o be evaluated properly. If simply stating that an injury occurred at some point in an eight-hour workday were sufficient, it would be almost impossible to m ake such distinctions.- 9 - or minutes can establish suffi cient temporal precision so long as the accompanying circumstances support the conclusion. In S. Express v. Green, 257 V a. 181, 189 (1999), the Supreme C ourt held that a claimant who testified that she developed c hilblains over a four-hour pe riod of working in a walk-in cooler had identified the incide nt with sufficient temporal pre cision because the evidence established that the “chilblain s resulted from a single exposur e to cold temperature on a definite occasion during the performance of aspecific piece of work[.]” Key to the analysis was the continuous or near-continuous expo sure to the causative conditi on, the cold of the walk-in cooler, for the four-hour period. 6 We applied the reasoning of G reen in Van Buren v. Augusta Cty. , 66 Va. App. 441 (2016). Van Buren, a firefighter , was involved in the rescue o f a 400-pound man who suffered a broken leg in the shower. Id. at 444. During “the thirty to f orty-five minute[]” rescue, “Van Buren . . . used a combination of imp rovisation, brute strength , and equipment to rescue the injured man.” Id. Although Van B uren could not identify a spe cific point during the rescue when he suffered his injury, we he ld that the entire forty-five -minute period of the rescue “was one event” rather than “numerous discrete events[,]” and thus, the fact that his injury occurred at some point during the rescue provi ded sufficient temporal preci sion to meet the requirements of the Act. Id. at 455. Central to our conclusion was the fact t hat Van Buren suffered a non-cumulative injury while engag ed in rescue efforts that were continuous and uninterrupted and that unquestionably aros e from his employment. We again applied the rule i n Dugger. Dugger had no pre-existin g knee injury when, as part of her employment, she part icipated in a four-hour defensi ve tactics class. Dugger, 68

6 In Green, the claimant testifie d that she worked in the walk-i n cooler without interruption for the four-hour pe riod. Employer’s witness test ified that Green was allowed to take breaks and took at l east one. 257 Va. at 184.- 10 - Va. App. at 42. The defensive t actics class involved four hour s of physical exertion and was characterized as involving a serie s of “‘simulated fights[.]’” Id. at 35. Consistent with the reasoning of Van Buren and Gree n, both the Commission and this Court concluded that Dugger was entitled to benefits, with t his Court noting that “it is cl ear that Dugger’s injury occurred during the four-hour defensive training class—and thus, her inj ury is sufficiently “bounded by rigid temporal precision.” I d. at 42 (quoting Morris, 238 Va. at 539). Again, central to our conclusion was the fact that Dugger suffered a non-cumulative i njury that unquestionably arose from her employment as a result of her participation in a four- hour defensive tactics class that was continuous and uninterrupted. As noted by the majority and conced ed by the Commonwealth, the evidence in the instant case brings it within the hol ding of Dugger. Claimant suffered a non-cumulative injury while participating in the four-hour class on the afternoon in questi on. From the record before us, the four-hour afternoon class appear s to have been continuous and l argely uninterrupted. Furthermore, the activities undertaken during the class unquest ionably arose from claimant’s employment. Accordingly, the Commission, consistent with Dugge r, appropriately found that claimant demonstrated an identif iable incident with sufficient temporal precision. Although expressly relying on Dugger to reach its conclusion, t he Commission’s assertion that “[t]he eight- hour training session on August 18, 2017 during which [claimant] participated provided the nece ssary rigidity of temporal precis ion to constitute one event” might be read as expanding Dugger. Give n the facts of this case, suc h an expansion is inconsistent with binding precedent, including Dugger itself. The record makes clear that cl aimant here did not engage in any work activity for eight continuous, largely uninterrupted hours. As the Commission not es in its opinion, claimant, on the day in question “spent eig ht hours in physical training fro m 8:00 a.m. through 5:00 p.m. . . .- 11 - with an hour lunch break .” (Emphasis added). Thus, not eve n the eight-hour time perio d referenced by the Commission, le t alone the physically demandin g training that included punching, was continuous and large ly uninterrupted. This repre sents a significant difference from the prior cases. As noted above, central to the con clusion that the claimants es tablished the requisite temporal precision in Green, V an Buren, and Dugger was the fact that each claimant was engaged in activities that unques tionably arose from their empl oyment for a continuous and uninterrupted period during which anon-cumulative injury was s uffered. The logic being that, although the claimants could not i dentify the exact minute or s econd that the injury occurred, they had sufficiently identifie d an uninterrupted time period i n which there was little question that the injury arose from a ri sk of the employment. The emplo yers were on notice of the specific time period in questi on, thus allowing them to defend the claim. Their defenses proved to be unsuccessful because the evi dence all but foreclosed the possibility of a non-compensable cause during the period of time sp ecified, assuring that the cl aim was, in fact, compensable. The eight-hour period that the C ommission appears to suggest ma y be sufficient provides no such notice or assurance. By t he Commission’s own findings, the eight-hour period was not a discrete, uninterrupted period of work-related activity because it was interrupted by the lunch hour. Such a break in continuity, especially given that many a ctivities undertak en during a lunch break pose risks that do not arise from employment, cf. Bernard , 60 Va. App. at 410 (eating ordinary food is not a risk of t he employment), differentiates such a time period from those in Green, Van Buren, and Dugger. The interruption in time and the introduction of events and risks that do not naturally arise from th e employment render the eigh t-hour period referenced by the Commission too indeterminate to m eet a claimant’s obligation to identify the incident with temporal precision.- 12 - In conclusion, the Commission’s as sertion amounts to a rule all owing a claimant to meet the burden of establishing t emporal precision by simply asserti ng that an injury occurred at some unidentified point in a full wor kday that included both risks o f the employment and risks of the neighborhood. Such an assertion is an incorrect statement of t he law. 7

7 I recognize that the Commissi on’s assertion could be read by s ome as a logical extension of Dugger if Dugger is viewed in isolation. Aft er all, what is the real di fference between a four-hour period and an e ight or nine-hour period? H owever, precedent should not be viewed in isolation. Dugger is con sistent with the prior cases because an employee suffered a non-cumulative injury while eng aged in a continuous and uninter rupted period of activity that unquestionably arose from her em ployment. The lack of continui ty in the eight- hour period the Commission sought to champion here t akes it outsid e the rationa le of the prior cases, including Morris, which remains binding aut hority. As a result, the Comm ission’s attempt to extend Dugger represents a bridge too far.