Why It's Not Enough that Your Work Injury Happened at Work
Virginia Workers' Compensation law, effective since 1919, gives relief to people who are injured at work at the time when relief is most needed. But it is not enough that your injury happened at work; your injury must also have been caused by work in some way. According to the law, your injury is compensable only if it arose “in the course of” employment and if it also arose “out of” the employment. Arising “in the course of” means the time, place, and circumstances where the accident occurred. Arising “out of” means the origin or cause of the injury. The focus of this article is on the second phrase: whether your injury arose “out of” the employment.
Virginia uses the “actual risk test” to decide whether an injury arose out of the employment. This is different than the “positional risk test” applied in some other states, where simply getting injured at work means the injury is compensable. To satisfy the “actual risk test,” the injury must have been caused by the conditions of the work that you were required to perform. In other words, if a “reasonable person” familiar with the whole situation would understand that you were exposed to some risk of injury because of your job, and that you were injured by that risk. But if your injury came from a hazard that is “common to the neighborhood” and your employment did not contribute to it, then the “actual risk test” is not met and your injury is not compensable. Of course, this is the challenge for many injured workers: What is reasonable to one person, may not be reasonable to another.
What is Common to the Neighborhood? Standing, Walking, Bending, Turning
For example, if you were to injure your back while bending over to tie your shoe, your injury would not arise “out of” your employment. Every person who wears laced shoes must occasionally retie the laces. Nothing in your work environment contributed to the injury.
If you fall or twist your ankle while walking on a clean, well-lit, level floor, then the “actual risk test” is not met and your injury is not compensable. There has to be a causal connection between the work environment and your injury. Walking on a level floor is a situation that is “common to the neighborhood,” and not particular to the employment. But if you had been carrying some heavy packages for work, or hurrying to do something required by your job, and this caused you to fall, then your employment contributed to your injury and the “actual risk test” is satisfied.
If you are injured while standing up from a seated position, then your injury did not “arise out of the employment” because this activity is independent of the work relationship. But if your work required you to be seated for a period of time in an awkward position, and then you were injured when standing up, then the injury might be compensable because the conditions of the workplace exposed you to that particular hazard. For example, a nurse had to fill out medical charts while sitting at a low desk with her legs and hips turned to the side, and then pulled muscles in her back when standing up from that position. Her injury arose “out of” the employment because her work obligations put in her in a unique position, which caused her injury.
Similarly, getting up from a kneeling position is not a hazard peculiar to the work, unless you had been doing some strenuous activity immediately before attempting to stand. Whether an injury that happened while bending or twisting is compensable can depend on the particular facts of each case. A man who bent down to pick up a piece of pipe, but felt a sudden pain in his back before actually touching the pipe, did not sustain an injury arising “out of” the employment. But another man who worked in an awkward crouched position repairing some heavy pipes did sustain an injury arising “out of” his employment.
Injured by a Fall
Falling on stairs is usually not a risk unique to the workplace. In order for an injury from falling on stairs to have arisen “out of” the employment, the steps that you had to use must have been defective or in some way unique. An insurance employee taking a door-to-door survey fell while climbing some steps that were higher than usual and were made out of rocks. Her injury arose “out of” the employment because the conditions under which her work was required to be performed contributed to her injury. But a man whose knee buckled when he turned around on some stairs because he remembered to check a certain meter did not sustain a compensable injury: there was nothing unusual about—or wrong with—the steps. However, unlike stairs, falling from a ladder or scaffolding while working is usually found to be “out of” the employment. They are, in and of themselves, more dangerous than stairs. If your work requires you to use a ladder, injuries caused by accidentally falling from one are typically found to be a product of the work environment.
Injured While Driving
There is one exception to the rule that an injury from a risk “common to the neighborhood” does not arise “out of” the employment. If your injury occurs in an automobile accident while your employment requires you to travel on public streets, and the injury arose from an actual risk of your presence on the streets, then the “actual risk test” is met. If you are a traveling salesperson, truck driver, or delivery driver, then your job requires you to be on the streets. But whether the injury was caused by an actual risk of that presence can be a stickier issue. If your injury was caused by a collision with another vehicle, then that is an actual risk of your presence on the streets. But a man who fell asleep at the wheel, without showing that he was tired because of some work-related reason, did not sustain an injury arising “out of” the employment.
There has to be a “critical link” between the conditions of the workplace and your injury. For this reason, many accidents that happen at work are not compensable because the injured worker cannot remember exactly how the accident occurred, or what caused it. A driver heard a “bam,” then crashed, and then received a ticket for inadequate tire tread. But because he had no memory of what happened, and did not know whether a tire blowout or some other road hazard caused the accident, the link between the workplace conditions and the injury could not be made. The injured worker must explain how and why the accident happened. Sometimes, however, a small gap in an explanation of how the accident occurred can be filled by circumstantial evidence. A man was pulling plywood in a house under construction and was found in the basement directly under holes in the first and second floors where the stairwell was going to be built. Since he fell from a height because of his work environment, and this caused his injuries, the “critical link” between the workplace and the injury existed.
Injured by Another Person
Some workplace injuries are not accidents at all, but are caused by a co-worker or a third person. Before Workers' Compensation laws were passed, you would not have had any relief for this kind of injury. Now, some of these injuries are covered by Workers' Compensation.
If an assault is personal to you and not directed against you because of your employment, then the resulting injury does not arise out of the employment. An EMT, described as a “kid in an adult's body,” with a reputation for harassing female co-workers, turned on a defibrillator and electrocuted a female co-worker. Whether the assault was intended as flirtatious, playful, or as harassment, it was purely personal. The injury did not arise “out of” the employment because the assailant's decision “was entirely his own and unconnected with the conditions of the employment.”
If you are injured by a co-worker who is simply engaging in horseplay, your injury arises “out of” the employment. A reasonable person, who is familiar with the whole situation, understands that horseplay is occasionally an inherent part of the workplace. If you are an innocent nonparticipating victim of playful or joking actions, your resulting injuries are compensable. So when a restaurant server went into the kitchen to print a check and was pelted with blocks of ice by his friends who worked in the kitchen, and dislocated his shoulder while raising his arm to protect his face, his injury arose “out of” his employment.
Confused? We can Help!
This article is only a brief overview of the issue. The law can be difficult to apply and there are many cases that fall into gray areas. Finding someone who understands the issues and can represent you can take a huge burden off your shoulders and can let you focus on getting better and getting back to work. If you are injured, consider finding a knowledgeable attorney, who is willing to listen, to help you with your Workers' Compensation claim.
Humphrees v. Boxley Bros., 146 Va. 91, 135 S.E. 890 (1926).
County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989)
Conner v. Bragg, 203 Va. 204, 123 S.E.2d 393 (1962)
United Parcel Serv. Of Am. v. Fetterman, 230 Va. 237, 336 S.E.2d 892 (1985)
Central State Hospital v. Wiggers, 230 Va. 157, 335 S.E.2d 257 (1985)
Int'l Paper Co. v. DeHart, Va. Ct. App. No. 2201-99-3 (May 9, 2000)
Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 382 S.E.2d 305 (1989)
Grove v. Allied Signal, Inc., 15 Va. App. 17, 421 S.E.2d 32 (1992)
Reserve Life Ins. Co. v. Hosey, 208 Va. 568, 159 S.E.2d 633 (1968)
Sentara Leigh Hosp. v. Nichols, 13 Va. App. 630, 414 S.E.2d 426 (1992)
Norris v. Etec Mech. Corp. Commonwealth Contractors Group, VWC File No. Jurisdiction VA00001317384 (Va. Workers' Comp. Comm. June 25, 2018)
Lysable Transp., Inc. v. Patton, 57 Va. App. 408, 702 S.E.2d 596 (2010)
Liberty Mut. Ins. Corp. v. Herndon, 59 Va. App. 544, 721 S.E.2d 32 (2012)
Turf Care, Inc. v. Henson, 51 Va. App. 318, 657 S.E.2d 787 (2008)
Hilton v. Martin, 275 Va. 176, 654 S.E.2d 572 (2008)
Simms v. Ruby Tuesday, Inc., 281 Va. 114, 704 S.E.2d 359 (2011)