Tuesday, September 17, 2013

What is an accident under Virginia Workers' Compenation law?

Photo of Gerald Gregory Lutkenhaus
I practice workers comp law in Virginia. I thus see many claimants who have suffered injuries at work. Virginia is strict on what is considered an accident. So, just because an accident occurred at work does not make the accident compensable. The accident must arise out of a specific incident at work. This is the so-called actual risk doctrine which is a contrast to the positional risk doctrine (which would only require the injury to occur at work). 
This comes up most often with people who do a repetitive activity at work and injure their back or another part of the body. Very often the claimant will not even know he is injured until the next day when he cannot get out of bed due to back pain. He then will contact his employer and say I was injured at work lifting those heavy widgets. Although this lifting of widgets undeniably caused the back injury, the claim will be denied on the basis the claimant was unable to pinpoint the precise widget that caused the injury. 
In order to make sure the claim is denied, the claims adjuster for the workers compensation insurance company will take a recorded statement as soon as possible after the alleged accident from the claimant and by leading questions will attempt to get the claimant to state the injury occurred due to repetitive activity and not due to any specific accident. If this adjuster is successful, the positional risk doctrine will have triumphed and the claim will be lost.
When a deputy commissioner hears this type of injury case, he will look at the recorded statement, the testimony of the claimants, the testimony of witnesses, and the history of the accident recorded in medical records. The deputy commissioner will then send out a written opinion deciding if a compensable accident has indeed occurred or if a non compensable repetitive lifting activity has caused the accident.
In the past claimant's attorneys tried to challenge the positional risk doctrine by claiming an injury should be compensable if the claimant could reasonably show it was caused by a work activity that occurred at work even if it occurred over a period of 2-3 hours. Unfortunately, this enlightened approach was rejected by the Virginia Supreme Court and the actual risk doctrine was again established as the Rule of Law in Virginia for work place accidents.
In summary, when I see claimants, I hope they can recall the 13th widget caused the "pop" in the back and the herniated disc. If so, we can move the case from the non compensable positional risk doctrine to a compensable actual risk doctrine case.
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Jerry Lutkenhaus has 
been a practitioner of Virginia Workers Compensation law in the Richmond, 
VA for over 35 years. He was given an "AV" rating by Martindale-Hubbell 
in 2003. Richmond Magazine has listed Mr. Lutkenhaus as one of the best 
lawyers in central Virginia. There is more information at www.virginiadisabilitylawyer.com or www.geraldlutkenhaus.com. In 2010 he was given AVVO's highest rating of "superb" in their system. http://www.avvo.com/att orneys/23230-va-gerald-lutkenhaus-1814627.html