Adams v. Alliant Techsystems, Inc.

Present: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Lemons, JJ., and Whiting, S.J.

HARRY ADAMS, ET AL.

v. Record No. 002613 OPINION BY JUSTICE DONALD W. LEMONS
April 20, 2001
ALLIANT TECHSYSTEMS, INC., ET AL.

UPON QUESTIONS OF LAW CERTIFIED BY THE UNITED STATES
DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA

On October 27, 2000, the United States District Court for

the Western District of Virginia entered an order of

certification requesting that we exercise our certification

jurisdiction, Va. Const. art. VI, § 1; Rule 5:42, and answer

the following questions:

1. Does the Virginia Workers’ Compensation
Act bar a plaintiff from bringing a common-law
cause of action to recover damages for his or
her hearing loss resulting from cumulative
trauma if the claim accrued during the period
in which such hearing loss was not a
compensable injury or disease under the Act?

2. If an alleged impairment is not
compensable under and not barred by the
Virginia Workers’ Compensation Act, must the
plaintiff still file a claim with the Workers’
Compensation Commission before filing a common-
law cause of action?

We accepted the certified questions by order entered on

December 14, 2000. For the reasons stated below, we answer

both certified questions in the negative.

I. Facts
 Three hundred and forty-two (342) plaintiffs either are

working or have worked at the Radford Army Ammunition Plant

(“Arsenal”) in Radford, Virginia, and seek damages for hearing

loss allegedly caused by exposure to unsafe, hazardous, and

excessive noise levels while working at the Arsenal.

Hercules, Inc. (“Hercules”) operated the Arsenal until about

February 1995, when operations were undertaken by Alliant

Techsystems, Inc. (“Alliant”). 1 Plaintiffs filed a complaint

in the United States District Court for the Western District

of Virginia, alleging that defendants negligently conducted

manufacturing operations during their respective tenures of

operating the Arsenal, causing each plaintiff to suffer either

partial or total hearing loss.

Defendants moved to dismiss plaintiffs’ complaint

pursuant to Rule 12(b)(1) of the Federal Rules of Civil

Procedure. They maintain that the exclusivity provision of

the Virginia Workers’ Compensation Act, Code § 65.2-100 et

seq. (“Act”), bars the plaintiffs’ common law personal injury

claims and that, even if plaintiffs’ claims are not barred,

plaintiffs must, nonetheless, file a claim with the Workers’

Compensation Commission (“Commission”) and have compensability

1
Hereafter, Alliant and Hercules will be referred to
collectively as “defendants.”

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determined by the Commission before filing a common law cause

of action.

II. Analysis

On March 1, 1996, this Court decided The Stenrich Group

v. Jemmott, 251 Va. 186, 467 S.E.2d 795 (1996). Three cases

involving claimants seeking compensation for disease caused by

repetitive motion or trauma under the Act were consolidated

for consideration under Jemmott. Two cases involved carpal

tunnel syndrome and one case involved “trigger thumb.” We

held that “job-related impairments resulting from cumulative

trauma caused by repetitive motion, however labeled or however

defined, are, as a matter of law, not compensable under the

[then existing] provisions of the Act.” Id. at 199, 467

S.E.2d at 802. Several months later, on September 3, 1996,

the Court of Appeals of Virginia rendered an opinion in a

hearing loss case, stating that “the Supreme Court’s decision

in Jemmott mandates our holding that gradually incurred

industrial hearing loss is a noncompensable, cumulative trauma

condition or injury,” under the terms of the then existing

Act. Allied Fibers v. Rhodes, 23 Va. App. 101, 102, 474

S.E.2d 829, 829-30 (1996).

Apparently in response to Jemmott and Allied Fibers, the

General Assembly amended the Act, effective July 1, 1997, to

exclude carpal tunnel syndrome and hearing loss as

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occupational diseases pursuant to Code § 65.2-400, but to

include them as ordinary diseases of life under Code § 65.2-

401. See Code § 65.2-400(C). Accordingly, after July 1,

1997, hearing loss is within the purview of the Act.

Defendants contend that between March 1, 1996 (when we

decided Jemmott) and July 1, 1997 (when the amendment to the

Act became effective), a “narrow window” occurred, wherein

claims for hearing loss caused by cumulative trauma were not

within the purview of the Act. By contrast, plaintiffs

maintain that such claims were never within the purview of the

Act before July 1, 1997.

As early as 1943, in Aistrop v. Blue Diamond Coal Co.,

181 Va. 287, 24 S.E.2d 546 (1943), we noted that “injury of

gradual growth, . . . caused by the cumulative effect of many

acts done or many exposures to conditions prevalent in the

work, no one of which can be identified as the cause of the

harm, is definitely excluded from compensation.” Id. at 293,

24 S.E.2d at 548 (quotation marks omitted). Two years after

our decision in Aistrop, the General Assembly amended the Act

to include limited coverage for occupational diseases.

However, as we noted in Morris v. Morris, 238 Va. 578, 586,

385 S.E.2d 858, 863 (1989)(citing Lane Co. v. Saunders, 229

Va. 196, 199 n.* 326 S.E.2d 702, 703 n.*), despite many

opportunities and the passage of what has now been over 50

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years, the legislature “has made no change in the Aistrop rule

with respect to injuries gradually incurred.” Moreover, in

Western Elec. Co. v. Gilliam, 229 Va. 245, 247-48, 329 S.E.2d

13, 14-15 (1985)(internal footnote omitted), we stated:

Some contend that any disability arising out of
and during the course of employment, including
disabilities resulting from both injuries and
diseases caused gradually by repeated trauma,
should be made compensable under the Workers’
Compensation Act. But such a consequential
decision, impacting as it must a broad spectrum
of economic and social values, is a matter of
public policy reserved to the original and
exclusive jurisdiction of the General Assembly,
and we will not trespass upon its domain.

Additionally, we have held that the Court of Appeals erred

in holding that a torn rotator cuff muscle caused by repetitive

trauma was compensable under the Act. See Merillat Indus.,

Inc. v. Parks, 246 Va. 429, 436 S.E.2d 600 (1993). Thus, from

Aistrop in 1943 to Jemmott in 1996, this Court has consistently

held that, whether characterized as an injury or a disease, if

the job-related impairment “result[ed] from cumulative trauma

caused by repetitive motion,” it was not compensable under the

Act. Jemmott, 251 Va. at 199, 467 S.E.2d at 802.

A particular claim may be non-compensable for one of two

reasons: (1) it does not fall within the purview of the Act,

or (2) while within the purview of the Act, certain defenses

preclude recovery. Defendants assert that plaintiffs’ claims

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fall within the purview of the act and its exclusivity

provision, Code § 65.2-307. We disagree.

A similar question was presented in Middlekauff v.

Allstate Ins. Co., 247 Va. 150, 439 S.E.2d 394 (1994), which

involved a claim of intentional infliction of emotional

distress from cumulative incidents. The trial court dismissed

Middlekauff’s tort action, holding that the exclusivity

provision of Code § 65.2-307 barred a common law suit. We

reversed and held that:

Here, Middlekauff alleges a gradually
incurred injury caused by cumulative
events. Specifically, she alleges a
“pattern of abusive behavior,” continuing
over an extended period of time, and she
states that this conduct caused her severe
emotional distress. Further,
Middlekauff’s pleadings do not allege an
injury that can be construed as resulting
from an obvious sudden mechanical or
structural change in her body. Therefore
. . . we conclude that Middlekauff has not
alleged such an injury within the purview
of the Act.

Id. at 153, 439 S.E.2d at 396.

The General Assembly’s modification of the Act to include

coverage for hearing loss took effect on July 1, 1997. As we

have previously observed, “[r]etrospective laws are not

favored, and a statute is always to be construed as operating

prospectively, unless a contrary intent is manifest.” Duffy

v. Hartsock, 187 Va. 406, 419, 46 S.E.2d 570, 576

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(1948) (quoting Whitlock v. Hawkins, 105 Va. 242, 53 S.E. 401

(1906)). Finding nothing in the statute expressing or even

implying retroactive application of the amendment to the Act,

we hold that the provision including hearing loss did not

apply to causes of action that accrued prior to July 1, 1997.

Having determined that prior to July 1, 1997, hearing

loss was not within the purview of the Act, the employees’

common law right of action for damages for that injury is not

impaired by the Act. As we stated in Griffith v. Raven Red

Ash Coal Co., 179 Va. 790, 798, 20 S.E.2d 530, 534 (1942):

Our conclusion is that the Workmen’s
Compensation Act is exclusive in so far as
it covers the field of industrial
accidents, but no further. To the extent
that the field is not touched by the
statute, we think that the legislature
intended that the employee’s common-law
remedies against his employer are to be
preserved unimpaired.

Of course, a successfully asserted defense under the Act may

render a particular claim non-compensable; however, there is a

significant difference between a claim arising within the

purview of the Act that is subject to defenses and a claim

that is not within the purview of the Act at all. In the

former case, there is no recourse to common law remedies; in

the latter case, there is. See Williams v. Garraghty, 249 Va.

224, 238, 455 S.E.2d 209, 218 (1995).

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 Defendants maintain that plaintiffs are required to file

a workers’ compensation claim with the Commission so that

compensability may be determined in the first instance by the

Commission. They suggest that such a result is compelled by

Code § 65.2-700 which provides that “[a]ll questions arising

under this title, if not settled by agreements of the parties

interested therein with the approval of the Commission, shall

be determined by the Commission, except as otherwise herein

provided.” We disagree.

Where it is clear on the face of the pleadings that a

claim is not within the purview of the Act, it is not

necessary for plaintiffs to submit their claims to the

Commission. Certified question number two assumes that the

claim “is not compensable under and not barred by the Virginia

Workers’ Compensation Act.” Because the plaintiffs are not

within the purview of the Act, they are not required to submit

their claims to the Commission before pursuing their common-

law causes of action.

Accordingly, both of the certified questions are answered

in the negative.

Certified questions answered in the negative.

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