Recent Changes in Virginia Workers’ Compensation Law

Every year, cases are heard by a Deputy Commissioner at the Virginia Workers’ Compensation Commission, appealed to the Full Commission at the Virginia Workers’ Compensation Commission, and then appealed to the Court of Appeals of Virginia. These cases often impact changes in Virginia workers’ compensation law. We have put this section together so you may get a general understanding of the trends occurring in Virginia.

2015 Important Changes in Workers’ Compensation Law 

1) An employer only needs to verbally communicate the “lockout-tagout” rule to win a case on willful misconduct. 

Lane v. Crist Electrical Contractor, Inc., 64 Va. App. 342, 768 S.E.2d 261 (2015)

On the date of the accident, claimant was installing electrical conduit from a scissor lift high up in a cutting room. The owner/operator of the warehouse had a “bridge crane” which was operational at the time. The bridge crane hit the claimant’s scissor lift causing both the scissor lift and claimant to fall far to the floor. The claimant suffered massive injuries, including brain damage.

The bridge crane would not have hit the scissor lift if claimant had rendered the bridge crane inoperable by following the “lockout-tagout” safety procedure. While the claimant was not given any written materials addressing the “lockout-tagout” procedure and did not attend employer’s formal safety orientation, he was given a tour of the facility and it was stressed that this procedure was important before working in the crane area.

The claim was barred because the claimant had violated the “lockout-tagout” procedure that was just verbally communicated to him.

If the employee knows the rule, and yet intentionally does the forbidden thing, he has willfully failed to obey the rule. It is not necessary for the employer to show that the employee, having the rule in mind, determined to break it; it is enough to show that, knowing the rule, he intentionally performed the forbidden act. 

2.) Purely psychological injuries are getting easier to win. (It used to be very hard to get a psychological injuries covered unless there was also a physical injury). 

Jackson v. Ceres Marine Terminals. Inc., 64 Va. App. 459S 769 S.E.2d 276 (2015) 

The claimant was operating a forklift, when he struck and killed a coworker. He did not realize that he struck the co-worker when it happened. He found out that he hit her when another coworker flagged him down. The claimant assisted other workers in an effort to raise his forklift off of her. He was within two to three feet of the victim. Once they were able to lift the forklift, it was apparent that the co-worker’s leg was wrapped around the rear axle. Other workers untangled her legs so that they could drag her body from underneath the machine. The claimant described the victim as “pretty mangled, bleeding from the mouth, her arm was mangled.” [,]. . basically just flesh, burn marks[,] . . You could pretty much see the bone in her arm, [and] her wrist and hand were twisted around backwards.” The claimant watched the rescue efforts of the police and fire department. They did “several things” to the victim for about five to ten minutes before putting her in an ambulance. A witness described the accident as a “gruesome scene.”

The claimant filed a Claim Form alleging that he suffered from PTSD as a result of the work-related incident and was denied. The Commission concluded that “[i]n order for a purely psychological injury to be compensable, the psychological trauma must be related to either a physical injury or a sudden shock or fright caused by circumstances placing the claimant at risk of harm.”

The Court of Appeals disagreed. It stated that there is no requirement that the claimant must be at risk of harm. It just needs to be an obvious sudden shock, fright, traumatic or catastrophic.

3.) Saying you do not know how the accident specifically happened, may not mean an automatic denial of your case. 

RDW Home Improvement. Inc. v. Wilson, Record No. 1369-14-2 (Dec. 23, 2014) 

The claimant testified that he had been installing soffit, and was standing on a ladder when he fell to the ground. When asked what happened, he said, “I’m not sure. I’m not sure if the ladder moved or what but I lost my footing and fell off” The insurance company’s lawyer asked the claimant, “So you don’t actually know what specifically caused you to fall that day?” The claimant responded, “Not at all.” He stated that there was nothing wrong with the ladder.

The Commission concluded that the claimant was standing on a ladder performing his job duties. While he was unsure whether the ladder moved, he did testify that he fell because he lost his footing. This sufficiently explained his accident to meet his burden of proving that it arose out of his employment.

4.) Still need to prove that there was something unique about the job to get any benefits. 

Vick v. Hampton Roads Transit, Record No. 1467-14-1 (Mar. 24, 2015) 

The claimant was employed as a bus operator by Hampton Roads Transit. While the claimant was leaving the office to get back on the bus, she was talking to her supervisor and another supervisor. As she left the office, she turned toward her right to leave. Her shoe “got caught on the bottom of the threshold piece that was down there, and there was nothing in the hallway to grab … to keep [her] from falling so [she] [] stumbl[ed] until [she] fell on [her] right side.” According to the claimant, she thought that she had raised her foot up high enough to cross the threshold.

The Commission found that the claimant has failed to prove that she was at a heightened risk because of her employment or that the threshold she tripped over was defective or sufficiently unusual. .. There is no connection between the claimant’s employment and her trip and fall over the ordinary threshold.” Additionally, the Commission found “no evidence that the claimant was engaged in some employment related task which made it more likely that she would trip over the threshold or that a conversation with her supervisors contributed to her fall.”

5.) You can be terminated after an accident for not following proper procedure prior to the work accident and lose benefits. 

Riverside Behavioral Centers v. Teel, Record No. 2143-14-1 (May 12, 2015) 

Claimant was employed by employer as a licensed practical nurse (LPN) in adult services. His duties included administering medications pursuant to doctors’ orders and assisting or restraining patients. On the day of the accident, claimant was assisting in restraining a patient when he sustained an injury to his left arm and wrist. Claimant was terminated for not documenting medication in the new computer system for the 3rd time prior to the accident.

The Court found his termination was the result of his “failure to follow properly established rules and procedures” and was not related to his work injury. Common sense dictates that decisions concerning a patient’s treatment are based on the hospital records. Staff and doctors must have an accurate “paper trail” of medications administered. While there was no evidence a patient was actually harmed, claimant’s failure to correctly document the administration of drugs “potentially placed employer’s patients in jeopardy.” We conclude as a matter of law that claimant’s termination was for “justified” cause.”

6.) You still need the Workers Compensation carrier’s knowledge AND consent to settle your automobile accident personal injury claim or you forfeit your workers compensation benefits. 

Cruz-Gonzalez and Cruz Cortes v. Star Valley Painting Contractors. Inc., Record No. 0016-15¬2 (June 9, 2015) 

The claimants suffered injuries in a work accident when they were struck by a vehicle while painting a building for the employer.

They were denied workers compensation benefits permanently because the employer did not give actual consent. Claimants informed defense counsel of the potential settlement of the case with the driver of the vehicle, but did not seek defense counsel’s consent to the settlement. The claimants argued that the defendants after being informed of the potential settlement did not contest the settlement. The defendants’ silence, however, does not amount to acceptance. The fact that the settlement with the driver was to the limits of the driver’s policy

also does not insulate the claimants either. It is immaterial that the claimants settled with the driver for the limits of his policy. What is material is the fact that the defendants were not afforded an opportunity to meaningfully participate in the settlement proceedings or at least have the opportunity to consent to the settlement.

7.) Getting up from a squatting position is nothing out of the ordinary and workers compensation benefits will be denied. 

Dickerson v. Countryside Service Co. LLC, JCN VA00000901938 (Jan. 23, 2015) 

Claimant stated: I was using the paint roller . . . was applying the drylock to the wall and then squatted down to roll it lower onto the wall. And I squatted down long enough to roll the drylock off the roller, I’d say probably 30 seconds to a minute. And when I stood back up, my knee made a loud pop.

The claimant agreed that he squatted similar to a baseball catcher’s position, i.e., with his buttocks on his heels. He confirmed that he held a typical, not heavy, paint roller in his right hand. He denied that the roller was a factor in hurting his knee. The claimant agreed that he did not slip, move awkwardly nor move oddly. He disputed rushing or having a distraction. The Deputy Commissioner denied the claim and a majority of the full Commission affirmed. The Commission has routinely held that a knee injury resulting from the mere act of squatting does not arise out of employment

8.) Slipping on wet brick on the sidewalk is an actual risk of employment and claimant can get benefits. 

Pollard v. Virginia Commonwealth University Health, JCN VA00000708640 (Mar. 27, 2015) 

The claimant was injured on the sidewalk adjacent to the entrance of the building where she was required to clock in for work. She slipped, apparently on a wet brick.

Under the actual risk doctrine, the claimant must prove that “a condition of the workplace either caused or contributed to” the accident. Southside Va. Training Ctr. v. Shell, 20 Va. App. 199, 202, 455 S.E.2d 761, 763 (1995). In certain cases, where a claimant cannot not specifically relate the cause or mechanism of the accident, we may infer from the facts presented that a work-related risk caused the injury. Basement Waterproofing & Drainage v. Beland, 43 Va. App. 352, 597 S.E.2d 286 (2004). A reasonable inference may be drawn only from facts which are proven in a case in the same manner as if they were the very fact at issue.

Chesapeake & Ohio Rv. Co. v. Ware, 122 Va. 246, 257, 95 S.E. 183, 187 (1918).

The claimant repeatedly testified to slipping on something and emphasized that the brick surface was damp from rain. The claimant attributed her fall to slipping on something, and she consistently referred to dampness. She had met her burden of proof.