Virginia Widow Loses Death From Radar Beams Claim
In an unusual case in which a surviving spouse claimed that her husband’s death from a heart attack had been caused by his three-week exposure to radar beams at work, a Virginia appellate court affirmed the denial of the claim, utilizing the state’s restrictive “identifiable incident” doctrine [Johnson v. General Dynamics Corp., 2022 Va. App. LEXIS 61 (Mar. 8, 2022)]. Quoting Larson’s Workers’ Compensation Law, the court also held the widow could not recover under a negligent first-aid theory because her claim was either a compensable consequence claim that failed when the initial claim is denied or a separate claim that was time-barred.
Background
Johnson worked as an electronic technician for three weeks prior to his death on September 2, 2017. Almost two years later, his widow filed the instant workers’ compensation claim. At an evidentiary hearing, evidence was presented that Johnson was “healthy,” never went to the doctor, and was not excessively overweight. It was acknowledged, however, that Johnson smoke half a pack of cigarettes daily, had a “nightcap” one or two times per week, had been tired all the time during the period before his death, and sleepwalked three to four times per week. Related testimony indicated that Johnson had a mental plate implant in his jaw due to an earlier car accident.
Co-workers testified that on the date of his death, Johnson had been working normally. Near the end of the shift, one worker noted that Johnson was slumped over in his chair. Workers began CPR and within five or six minutes, an HR representative arrived with a defibrillator. Later, paramedics arrived and attended to Johnson, but he died thereafter at a local hospital.
Battle of the Medical Experts
Most of the hearing consisted of a battle between the medical experts. The widow presented the testimony of an environmental toxicologist (Dr. Havas), who testified that Johnson’s cardiac arrest “was triggered by his exposure to radar in the test chamber.” She admitted the levels of radiation exposure in the test chamber were within the Federal Communications Commission’s guidelines but argued the exposure still harmed Johnson. Dr. Havas testified that Johnson’s three weeks of radar exposure while at work, “for six to eight hours a day,” exacerbated by the metal implant, likely made Johnson “electrically hypersensitive” and caused his cardiac problems. A cardiologist (Dr. Cavros) also testified that it was more likely than not that employer’s delay in retrieving and using the defibrillator contributed to Johnson’s death.
The employer’s industrial hygienist (Dr. Bump) rebutted the medical testimony offered by the widow. Dr. Bump noted that given the low radar exposure at the testing site—approximately 0.5% of the FCC’s limit—there was “zero potential for an extreme exposure” and the dangerous effects Dr. Havas had described.
Additionally, Dr. Foley, another of employer’s medical experts, reviewed the record and determined that Johnson’s “severe dilated cardiomyopathy” likely caused his cardiac arrest and Johnson most likely had “an underlying cardiac comorbidity” based on his hypertension, mild obesity, and smoking and alcohol history. Dr. Foley did not believe the evidence supported claimant’s theory and questioned Dr. Havas’ methodology and conclusions. Separately, another cardiologist who had treated Johnson at the hospital (Dr. Patterson) reviewed the medical record and Dr. Foley’s conclusions and agreed with Dr. Foley.
Deputy Commissioner: No Identifiable Incident
The deputy commissioner found that Johnson’s widow failed to prove by a preponderance of the evidence that Johnson’s injury and death were caused by “an identifiable incident or sudden precipitating event.” Without determining whether the widow had proved causation, the deputy commissioner found that Dr. Havas and Dr. Cavros relied on a theory that Johnson’s three-week exposure to radiation caused his death and that this period of exposure was not bound with sufficient rigid temporal precision to constitute an identifiable incident or sudden precipitating event under Virginia law. Additionally, the deputy commissioner determined the widow’s negligent first-aid theory was a compensable consequence claim which failed when the initial claim was denied. Alternatively, if the widow argued this theory was a separate cause of action, the deputy commissioner stated the claim was barred by the statute of limitations because it was not timely filed. The full Commission affirmed and the widow appealed.
Appellate Court: No Compensable Injury Existed
Initially, the appellate court noted that in order for the widow to recover, she had to prove, by a preponderance of the evidence:
- An “injury by accident” or occupational disease,
- Arising out of, and
- In the course of, the employment.
The court added that while the issue of whether an employee suffered an injury by accident was a mixed question of law and fact, and while the court was bound by the Commission’s findings as long as credible evidence supported them, whether those facts actually proved the employee suffered an “injury by accident” was a question of law. The court stressed that here, even if the Commission found sufficient evidence of causation—which it had not actually done—it did not err in treating the multi-week exposure as the possible identifiable incident. Second, given this, the exposure failed as an “identifiable incident” as a matter of law.
The court stressed that the widow failed to establish an injury by accident because the alleged identifiable incident or sudden precipitating event was three weeks of exposure, not a particular event linked to Johnson’s injury.
Author’s Note
Practitioners outside the Commonwealth of Virginia might quickly question what difference this makes? If the widow could establish medical causation between the radar beams and the heart attack, what difference should it make as to whether the deceased was subjected to the beams for three weeks or one day (i.e., on the date of the heart attack)? Space constraints don’t allow me to elaborate extensively here, but one should keep in mind that Virginia has perhaps the most restrictive cumulative trauma rule of all American jurisdictions [see Larson, § 50.01, et seq.]. To be an identifiable incident in Virginia, the causative event must be “temporally fixed with reasonable accuracy” [City of Charlottesville v. Sclafani, 300 Va. 212, 862 S.E.2d 101 (2021)].
In Morris v. Morris, 238 Va. 578, 584, 385 S.E.2d 858, the Virginia Supreme Court rejected identifiable incident tests merely requiring a claimant show work activity taking place over a “reasonably discrete time frame” [238 Va. at 588]. Instead, the Court made clear that the “Aistrop rule” [Aistrop v. Blue Diamond Coal Co., 181 Va. 287, 24 S.E.2d 546 (1943)] was still good law. That rule requires a claimant show not only a period of work activity but an injury by accident as a result of “some particular piece of work done or condition encountered on a definite occasion [181 Va. at 293].
Additionally, the claimant must prove “that the cause of his injury was an identifiable incident or sudden precipitating event” [Morris, 238 Va. at 589]. “Injuries resulting from repetitive trauma, continuing mental or physical stress, or other cumulative events, as well as injuries sustained at an unknown time, are not injuries by accident” [Hoffman v. Carter, 50 Va. App. 199, 213, 648 S.E.2d 318 (2007)]. Note, however, that pursuant to an amendment to Va. Code § 65.2-400, the Hoffman rule has been eased with regard to carpal tunnel syndrome claims [see Larson, § 50.01].
Heart Attack Not Caused by Identifiable Incident
Moving back to the instant case, the Virginia court said that while the facts established Johnson’s sudden cardiac arrest occurred at a reasonably definite time and resulted in an obvious mechanical or structural change in Johnson’s body, the evidence failed to establish the three-week exposure was an “identifiable incident” that caused Johnson’s cardiac arrest. In Sclafani, cited above, the Virginia high court had stressed that a claim asserting that an injury occurred during a time period where multiple potential causative events occurred was not sufficiently temporally precise to establish a compensable injury. Here, Johnson’s alleged identifiable incident, the three weeks of exposure for six to eight hours per workday, was an example of repeated exposures over weeks, not a single, definite occasion of exposure.
Moreover, viewing the evidence in the light most favorable to the employer, other potential causative events occurred over the three-week period that could have caused Johnson’s cardiac issues. For example, evidence was presented on factors unrelated to the radar exposure that may have affected Johnson’s cardiac health during this same time period: Johnson’s smoking and alcohol use, mild obesity, and constant fatigue. When the widow failed to distinguish Johnson’s multi-week exposure from non-compensable exposures over months or years, she overlooked the connection between establishing an identifiable incident and isolating a causative event as spelled out in Sclafani. Even if the widow proved by a preponderance of the evidence that three weeks of radar exposure caused Johnson’s cardiac issues, her theory illustrated cumulative exposure, not a specific accident. The claim was not compensable.