We know that workers' comp is at times controversial, and that case related decisions and determinations rarely make everyone happy. Still, through the din of disagreement there is usually a thread of logic that can help define issues and justify outcomes. A previously recognized standard or doctrine is often in place that supports the decision made, and, even though we may wish for a different result, the pronouncements once questioned can be supported with logic and precedence.
And then we have the state of Virginia. To many of us, the rules of logic do not seem to be applied there. In fact, to those of us outside looking in, some things there seem downright crazy.
Liz Carey reported on this site last week about a Virginia highway rest area maintenance man who was blinded in an attack by a former co-worker. He was denied workers' compensation benefits after the attack, with the Virginia Court of Appeals affirming denials by the Virginia Workers' Compensation Commission. The court found that “the nature of the worker's job and the job's environment did not increase the probability of assault.”
Virginia, to quote an acquaintance I recently discussed this with, can be an outlier on certain cases in the world of workers' compensation. I've had the opportunity to get to know a couple commissioners in the state, and like them a great deal. Admittedly, it was much easier to make fun of Virginia cases when that was not the case. I can take solace that the decision that brings me to their door this morning is not the work of incompetent commissioners; rather it is the result of the legal structure under which they must perform their jobs. The appellate court ruling in this case highlights that fact.
According to Ms. Carey's article:
In 2013, George King started working with DTH Contract Services, Inc. a Dunn, North Carolina-based contractor, at the rest area on Interstate 66. It was King's job to keep the bathroom clean, empty trash cans and keep an eye on the rest area by reporting any criminal activity to the police, court documents show.
When he was not cleaning or making rounds, court documents said, he was to remain locked in the rest area office. And as the only employee on site, he was required to make hourly “safety check” phone calls to management, not only to assure that the rest area was staffed, but also that he, as the attendant, was safe.
In June 2014, Khalif Privott began working at the same rest area as an overnight attendant. Privott, however, failed to make the required safety calls. In March 2015, Privott quit without providing any notice, saying “I can't do this anymore.” Although the two men never worked together, they did sometimes overlap in shifts.
After Privott quit, King was moved to the overnight shift. Early in the morning of July 13, 2016, Privott returned to the rest area and attacked King as he was returning from his last check of the rest area, stabbing him in the eyes with a screwdriver, blinding him permanently. Privott committed suicide later the same day without ever revealing his motives for the attack.
King filed for workers' compensation, but the employer denied the benefits saying the assault did not arise out of King's employment.
Both the Virginia Commission and the state Court of Appeals ultimately agreed. An appellate court initially had agreed with the claimant and remanded the case back to the commission. The commission held that his job did not place him in an environment at higher risk of violent assault. The Court of Appeals found that, even though he was required to stay locked in his office when not checking the grounds and make hourly “safety calls” to his supervisor, he “failed to prove that there was a link between the conditions of his employment and the attack, or that the conditions of his employment put him in danger of attack.”
I don't think they've ever worked a night shift at a highway rest area before. Here in Florida they place armed security in those places at night, since there were so many violent attacks occurring in them.
The issue in this case seemed to boil down to whether he knew his attacker, and if the attack was personal in nature or a result of an issue with the job. The attacker's motive could not be determined. The initial appellate court, in reversing the original denial, wrote, “Here, the Commission held that because claimant knew assailant, he could only establish the assault arose out of the employment if he could prove assailant was motivated by claimant's job. It concluded that if the assailant and claimant know each other, the assault between them could not result from an increased risk of assault. It effectively concluded that if the assailant and claimant know each other, the motive must either be employment related — and the assault arises out of the employment — or personal —and the assault could not arise out of the employment, even if the employment increased the risk of assault.”
It seems that, in the absence of clear intent of the perpetrator, the law sided against the injured worker. He could not prove the attack wasn't personal, and therefore he was not awarded benefits.
Virginia seems to have some very unique requirements when it comes to proving compensability in workers' comp. A number of years ago a case there involving a severely injured roofer highlighted the legal challenges for injured workers in the state. The law in Virginia at one time said that people filing for injury benefits where no witnesses were available had to be able to testify regarding the nature of the accident in order for the claim to be considered compensable. This left people with significant brain injury at a severe disadvantage. Since they were unable to testify about their accident, they were routinely denied benefits. The law was changed to accommodate people who were not capable of testifying, but an unintended loophole existed.
In the case we discussed back in 2012, a roofer who was severely brain injured after a fall from a roof was denied benefits. His assistant heard him fall but didn't see the accident. At the hearing, the man was able to state his name, but could not recall anything about the accident. The commissioner ruled that, since he was able to state his name, he was capable of testifying, but since he was unable to testify about the accident, he was denied benefits (that was later reversed).
It is unfortunate. In almost any other state a nighttime janitorial/maintenance worker who was stabbed in the eyes with a screwdriver while on his shift would likely have received proper justice from the workers' compensation system. In Virginia, however, it would seem his loss of sight is the only common area he shares with the laws that govern his state.
Justice is supposed to be blind. It shouldn't be deaf to reality as well.
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Robert Wilson is President & CEO of WorkersCompensation.com, and "From Bob's Cluttered Desk" comes his (often incoherent) thoughts, ramblings, observations and rants - often on workers' comp or employment issues, but occasionally not.
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