What is the ‘Increased Risk Test’ in West Virginia?

Do You Know the Rule?

West Virginia applies the “increased risk” test to determine whether a worker’s injury arises out of employment and is thus potentially compensable.

The test helps a decisionmaker determine whether the injury was caused by the job. It does this by distinguishing injuries that result from a condition of the claimant’s employment from those that are personal to the employee and really have nothing to do with the job.

What must a claimant show to satisfy this test?

The claimant must show that:

• The injury was caused by a particular condition, obligation, or risk of her job; 
• The risk was greater in frequency or degree than that to which the general public is exposed;
• The increased risk was a contributing factor to the injury.

Does meeting the test mean the claim is compensable?

No. The test helps determine only whether injury arose out of employment. To have a compensable claim, a claimant must establish two basic elements:

1. The injury occurred in the course of employment. This refers to the time, place, and circumstances of the injury. It concerns whether the claimant was performing job-related duties when she was injured.
2. The injury arose out of employment.This concerns whether the job caused the injury. Specifically, it relates to whether a condition or increased risk of employment contributed to the injury.

What is an example of an injury that might meet the test?

Every case is different, but one example is a lung injury that results from breathing chemicals the claimant is required to use to perform her job.

What is an example of an injury that might not meet the test?

An employee randomly falls and injures his leg while walking down a typical hallway that is not in disrepair. An unexplained fall is considered a “neutral risk” in West Virginia.

An employee faints at work and falls due to a non-work-related medical condition that makes him susceptible to fainting. This type of risk is known as an “idiopathic condition.” It is basically a risk that is personal to the claimant.

Can an injury caused by an idiopathic condition ever meet the increased risk test?

Yes. This type of injury can meet the increased risk test if the claimant shows her job:

• Contributed to the cause of the injury: or
  
• Increase the harmful effects of the injury.

Can an injury caused by a neutral risk ever meet the increased risk test?

Neutral risks are generally not compensable. However, they can meet the test if the claimant shows her job increased the risk of the injury.

Is it the claimant’s burden to show her claim meets the test?

Yes. The claimant must produce evidence showing:

1. The job duty or condition that increased the risk;
2. How that risk contributed to the injury; and
3. That the risk exceeded risks faced by the general public.

What are some recent case examples?

A restaurant manager was walking toward a patio door to let in another employee. He felt a "pop" in his right foot, followed by intense pain. The manager didn’t establish that he faced an increased risk because of his employment simply because he had to walk. While he claimed the floor was damaged, he never mentioned that point until after his claim was rejected. The claimant’s inconsistent descriptions of what happened made him less credible, according to the workers’ compensation board. Wolfe v. BBL Hospitality, LLC, No. 25-ICA-173 (W. Va. Ct. App. 10/24/25).

A municipal court judge was descending the stairs at work. The stairs were not defective. Suddenly, she felt a burning behind her knee and heard a loud “pop.”  Imaging later showed she tore her meniscus during the incident. They also showed she had pre-existing osteoarthritis in that knee. She failed to meet the increased risk test, the court found. This was the type of injury that nearly everyone is at risk of experiencing because nearly everyone uses stairs. “[T]he claimant's risk of being injured while descending the stairs at work was not qualitatively peculiar to her employment, nor did she face an increased quantity of risk,” the court said. Harper v. City of Elkins, No. 25-ICA-101 (W. Va. Ct. App. 08/29/25)

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