News & Insights

Davis v. Wal-Mart Assocs., Inc., Record No. 0503-23-3 (Va. Ct. App. Apr. 2, 2024)

Case Briefs

April 2, 2024

By: Juli M. Porto

Virginia Appellate Law Blog

View Full Article

The Court of Appeals reviews a Workers’ Compensation decision to decide if a compensable injury exists.


Facts. Jeremie Davis had a long history of back problems, requiring three surgeries. In 2019, Dr. Joseph Orchowski, the doctor who had performed Davis’s second two surgeries, recommended that Davis receive spinal injections and put him on a no-work restriction until his next appointment. Davis never followed up.

Later, in 2021, Davis began working for Wal-Mart stocking shelves. In 2022, while stocking shelves, he felt a sharp pain in his back. He went to the emergency room where his x-rays were found to be normal. A few days later, he followed up with a physician’s assistant who reviewed the ER x-rays and also found them to be normal. A few days later, he followed up with a physician who diagnosed him with a lumbar sprain without relying on imaging. Finally, Davis returned Dr. Orchowski who ordered an MRI. Dr. Orchowski concluded that the MRI looked “similar to prior imaging.”

Wal-Mart asked Dr. Orchowski to complete a questionnaire regarding Davis’s condition. On the questionnaire, Dr. Orchowski agreed that he had never released Davis back to work after putting him on no-work restriction in 2019. He also wrote that he could not say within “a reasonable degree of probability” that Davis “sustained an actual mechanical or structural change to his body” because of the shelf-stocking accident.

Davis filed a claim for benefits related to his accident. Following a hearing, the deputy commissioner denied Davis’s claim because he failed to prove that the accident “caused a structural or mechanical change” to his back. He denied Davis’s claim on the alternative ground that Davis had returned to work without a doctor’s release, and therefore that his injury was a “known and expected result” of returning to work.

Davis appealed to the full Commission, which agreed with the deputy commissioner that Davis had not established a compensable injury. Since Davis did not have a compensable injury, the Commission found that the alternative ground on which the deputy commissioner based his decision was moot and did not address it.


Issue. Whether Davis proved an injury by accident.


Holding. No. Credible evidence supported the Commission’s finding and there was no diagnosis in the record of a sudden mechanical or structural change to Davis’ back.


Notes. To prove that he suffered an injury by accident, Davis was required to prove that he suffered a “structural or mechanical change” to his body. That is a question of fact, and the Commission’s findings of fact are “conclusive and binding” on appeal so long as there is credible evidence to support them. Here, all imaging showed normal, post-operative changes. Although one physician had diagnosed Davis with a back sprain, “any diagnosis of a specific type of back injury is absent from the record.” Dr. Orchowski found that Davis’s MRI looked “similar to prior imaging.” Davis also told Dr. Orchowski that the pain he suffered from the accident felt “similar to what he experienced prior to surgery.” Finally, Dr. Orchowski could not say within a reasonable degree of medical probability that Davis sustained a mechanical or structural change to his body due to the accident. The Commission’s findings were thus supported by credible evidence and could not be reversed on appeal.

Davis also challenged the finding that his injury was a predictable consequence of his voluntary defiance of medical restrictions, but the Court found that it could not reach that assignment of error because the Commission did not make that finding; only the deputy commissioner did. The Commission had found the issue moot and did not rule on it, thus Davis’s assignment of error “does not address a finding or ruling” of the Commission that was reviewable.


Read the Opinion

Related Attorneys