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Common to the neighborhood: Workers Compensation in Virginia

Posted by B. Patrick Agnew | Aug 13, 2018 | 0 Comments

I spend a great deal of time talking to injured worker to help evaluate whether an injury that was sustained while the employee was working is covered by workers compensation. The mere fact that I evaluate many cases in this way tells us something about laws in Virginia that govern workers compensation cases.  It is, very simply, not enough for an injured worker to demonstrate that the injury occurred while working.  The injury must have occurred from a risk associated with the employment.  This is called the "actual risk" test.   This can be distinguished from the "positional risk" test used in some other states and jurisdictions. For example, cases that arise under the Longshore and Harbor Workers Act are subject to the "positional risk test" which means that the injured worker must simply initially prove that the injury came while working.  

This post is the first post in a series of 5 posts that explains some common scenarios that injured workers are faced with in Virginia when evaluating if the injury not only occurred in the "course of employment" but also arose out of the employment. If you want to read ahead, we have prepared an article here that offers more insight as to whether an accident arises out of the employment. 

Part 1:  Did the accident happen as a result of something that is "Common to the Neighborhood": Standing, Walking, Bending, Turning

Simple acts like, bending, walking and twisting are not covered by Virginia law.  Simple bending over to tie your shoe, without any other explanation, is not compensable. If you fall on a clean, well lit floor, with no other issues and no other explanation, the accident is likely not to be covered. Simple standing up from a seated position is not covered, neither is kneeling or ascending from a kneeling position. Most cases are not this simple. In fact, many injured workers, simply because they did not describe in more detail what they were doing when they were injured, do not prevail in Virginia. For example, if the worker bending over to tie his shoe was tying a particularly difficult work boot that required tugging and pulling, the accident may arise out of the employment.  If an injured worker fell on a clean well lit floor, but fell because of some other defect in the floor, the accident may be compensable.  If the employee that was standing up from a seated position stood up with a heavy box, the accident may be compensable.  

Recently, we prevailed in a case before the Virginia Workers Compensation Commission when an employee who was simply standing up from a crouched position, stood up very suddenly because she heard a loud noise behind her.  This was enough to prove that the accident arose out of the employment.  

Some cases are simple, some are not.  If you have a question about whether an injury arose from your employment, please call our office to set up an appointment to discuss your case with an attorney. 

About the Author

B. Patrick Agnew

B. Patrick Agnew was born and raised in Roanoke, Virginia and Bedford County. He received his undergraduate degree from Liberty University and studied philosophy and government. Patrick received his law degree from the Regent University School of Law.

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