Many injured workers think if they are at fault for the accident which caused their injuries, it will not be not covered by workers’ compensation.  However, that is not necessarily true.  If you are injured in an accident, even if the accident is your fault, it can still be covered under workers’ compensation.

Negligence does not matter. It does not matter who was negligent (at fault for the accident), whether it be you or your employer or a co-worker.  That can seem like it works against the injured worker when the employer is negligent, as workers’’ compensation does not allow for pain and suffering like personal injury claims do.  However, it can work in favor of the injured worker when the injured worker is negligent.  Negligence, even gross negligence, will not bar your recovery under workers’ compensation.

What is Willful Intent?

While negligence does not matter, willful intent can.  As the name implies, “willful” means that you had to have done something wrong knowingly.    Obviously, that means if you injured yourself on purpose, it will not be covered by workers’ compensation.   Intentional injuries go beyond just negligence and will be denied.

What is Willful Misconduct?

There are other intentional actions that will bar your workers’ compensation case, even if the intent was not to cause the accident.   This is called willful misconduct.   In sum, it means that you did something intentionally wrong and that action was the direct cause of the accident.  If the workers’ compensation insurance company can prove that you did something that the Virginia Workers’ Compensation Act considers willful misconduct, then your injury will not be covered by workers’ compensation.

One type of willful misconduct involves being drunk or under the influence of a non-prescribed drug at the time of the accident.   The good news is that the workers’ compensation insurance company cannot just say you were drunk.  They do have to prove it.  The bad news is, that if they can prove it to a certain level, the Virginia Workers Compensation Commission will assume that your alcohol or drug use caused the accident.  In order to qualify for the assumption of causation, the workers’ compensation insurance company has to show that you meet the same levels of intoxication as required for a conviction of driving while intoxicated, (which is a .08 blood alcohol concentration or .08 grams per 210 liters of breath).  If you tested positive for non-prescribed drugs rather than alcohol, in order for the workers compensation insurance company to get the assumption, the drug test must be done by a particular testing center that has been certified by the Substance Abuse and Mental Health Services Administration (also known as SAMSHA) certified.

What Does a ‘Presumption’ Mean?

The legal term for the assumption is called a presumption.  As I stated, if the workers’ compensation insurance company can prove that you had alcohol or illegal drugs in your system at the time of the accident, then the Virginia Workers’ Compensation will presume that your intoxication caused the accident.  You will still have an opportunity to show that your alcohol or drug use did not did not cause the accident.  You will just have a higher burden of proof, or what is known as clear and convincing evidence.

Proving Causation

In workers’ compensation cases, it is always the injured workers’ burden to prove causation by what is known as a preponderance of the evidence, which, in numerical terms would be 51%.   In order to rebut the presumption that your injury was caused by your intoxication, the burden of proof is clear and convincing, which would numerically be 76%.

This is a difficult standard to meet, but in certain circumstances, it can be done.    For example, the workers compensation insurance company can argue willful misconduct if you have a .08 BAC.  However, if you and your attorney can establish that the accident happened because something fell on your head while you were walking in an area in which you were allowed to walk, then you can probably overcome the presumption.  An un-intoxicated person walking in the same spot would have had the same injury.  In much the same respect, if you are injured as the passenger of a car, your level of intoxication could not have contributed to the accident.

Be aware, though, that even if the workers’ compensation insurance company cannot establish enough proof to get the presumption, they still have the right to prove that the alcohol or drug use caused the accident.  They typically do this by having a toxicologist or other doctor who studies the effect of chemicals on the human body write a report about what the effects of similar alcohol or drug use would have on a typical person in areas such as hand eye-coordination, mental acuity, and balance.  If the Deputy Commissioner agrees with them, your case will still be determined to not be compensable.

The Importance of Safety Rules

Another type of willful misconduct is when you fail to follow a safety rule.  Again, the workers’ compensation insurance company has to prove several things to prove that your case should be denied for this type of willful misconduct.  First, the workers’ compensation insurance company has to prove that the rule was in place before your accident.   This prevents your employer from creating a rule against what you did after the accident.  You cannot be expected to follow a rule that did not exist.    They also have to prove that you knew about the rule.   Your Employer cannot have rules hidden away that no one is told about, only to bring them out when someone gets hurt.   This is typically proven by including the safety rule in something you were given at the time you were hired and you signed a document agreeing that you received it.

The workers’ compensation insurance company has to prove that the rule is specific and is designed for the safety of the employees.  Your employer cannot just have a rule that says, “Don’t get hurt.”   That is clearly a rule designed for the protection of the Employer with absolutely no protection for the Employee.  The rule has to be specific enough so that the employees can tell what they are not supposed to be doing.

The workers compensation insurance company has to prove that the rule is enforced.  The Employer can have a rule that is reasonable, that everyone knows, but if the Employer does not enforce that safety rule, the rule cannot be used against you.  For example, if you are working at a machine that has a guard to keep your hands from being pulled into the machine, and the Employer has a rule that says the guard must in place at all times when the machine is running, but no one follows the rule, (even the supervisor has been seen using the machine without the guard in place), this is not a safety rule that is enforced and it cannot be used to deny your claim.

The Importance of Safety Appliances

Another type of willful misconduct is if you are not using “a safety appliance.”  This is similar to the violation of a safety rule, except, instead of a rule, it is using equipment.  If your employer requires you to wear steel-toes shoes or safety googles, and you are injured because you are not wearing them, your case will be denied.  Again, the Employer still has to establish that if you had been wearing the safety equipment, the injury would not have happened.   So, if you cut off your finger one day when you are not wearing your required steel toed boots, the Employer still has to establish that the injury to your finger would not have happened if you had been wearing your steel-toed boots.

Failing to Perform a Duty Required By Statute

The last type of willful misconduct I am going to discuss is failing to perform a duty required by statute.  Typically, this arises in cases involving traffic accidents where you may have been speeding or not wearing your seatbelt.  For example, if you are in a motor vehicle accident and are not wearing your seatbelt, the workers’ compensation insurance company will try to argue willful misconduct in that Virginia law requires you to wear a seatbelt in the front seat of a motor vehicle.   Again, there is no presumption and the workers compensation insurance company will have to establish that the injuries would not have happened if you had worn your seatbelt.  If they cannot establish this, your claim will not be barred from coverage because of your willful misconduct.

Also, be aware that while your action may not rise to the level of willful misconduct, and your actions will not bar your claim, there may be other defenses that the workers compensation insurance company can raise to deny your claim.   Additionally, just because your actions do not rise the level of willful misconduct, it does not mean that your actions will have no consequences and these other consequences can affect your workers compensation claim.  The Employer can still terminate you for the actions which led to the injury.  So, if you test positive for alcohol or drugs at work, and your employer has a zero tolerance policy, your employment can still be terminated.   This termination will likely be considered termination for cause, and that will affect your entitlement to lost wages.

Contact a Workers’ Compensation Attorney Today

If you are wondering whether your actions will have an effect on your workers’ compensation case, it is really best to call an attorney knowledgeable in workers’ compensation laws.