If there is an assault in the workplace by a co-employee, there are usually two possible remedies for the victim or the victim's dependents. One is a workers' compensation claim and the other is a personal injury claim against the employer.
Of course, the big difference is damages. In a personal injury claim one can recover for pain and suffering and other items. In a workers' compensation claim one is limited to medical expenses and lost wages with a cap of 500 weeks.
In a recent case in Virginia this occurred. Crump and Gibson worked for American HomePatient. Crump developed a romantic interest in Gibson. When he was rejected, he came into the work place and murdered Gibson and her boyfriend. American Home Patient offered to cover the incident as a workers' compensation claim and pay Gibson's dependents compensation which would be 500 weeks of compensation. Instead, Gibson's estate and the boyfriend's estate filed separate lawsuits for $10,000.000.00 against American Home Patient for the negligent retention of Crump as an employee. American Home argued in the workers' compensation proceedings and in the personal injury action that Crump feared being fired by Gibson and/or her boyfriend and that the murder "arose out of the workplace" at American Home Patient. Both the Circuit Court and the Virginia Workers' Compensation Commission rejected this argument. 73 Va. Cir. 85 (Rockingham County, decided Mar. 12, 2006. VWC File No. 228-52-25); Gibson v. American HomePatient (Va. Workers' Compo Comm'n, filed Jan. 16,
2006) (VWC File No. 228-52-24)).
The Commission and Court held there was no evidence that Gibson or her boyfriend had any supervisory authority over Crump. Thus, under the "reasonable man" test Gibson and her boyfriend's employment at American Home Patient did not increase their risk of assault by Crump. Gibson's estate went on to recover $3,000,000.00 in the personal injury action (which was much more than the dependents would have recovered in the workers' compensation claim).
In summary, even though the employer may be willing to accept an assault as workers' compensation claim, it may be preferable to proceed with a personal injury action for negligent hiring especially if there has been a death or a significant injury.
FOR MORE INFORMATION: call Jerry Lutkenhaus at (804) 358-4766 or 1(800) 256-8862 or you can visit our website at Virginia Workers' Compensation Lawyer.
In a recent case before the Court of Appeals, City of Fredericksburg v. Grijalva, Record Number 0833-12-2 (September 4, 2012), the Court dealt with an appeal by an insurer of a Virginia Workers’ Compensation Commission ruling favoring the claimant.
The insurer for the City attempted to reverse the award in favor of the claimant by asserting the claimant had failed to look adequately for light duty work. Although the claimant had not strictly followed the Commission guidelines in looking for work (http://www.vwc.state.va.us/portal/vwc-website/HelpfulResources/RulesRegulations) the Deputy Commissioner who observed the claimant’s testimony and demeanor had decided the claimant had made a "good faith job search."
This case is a triumph of substance over form. The claimant among other matters in her job search had not registered with the Virginia Employment Commission and had submitted some duplicate job applications. However, the Deputy Commissioner found she had done the best that she could do. The Full Commission decided it would defer to this "good faith: finding by the Deputy Commissioner.
This case illustrates the point that if the claimant can convince the Deputy Commissioner (who hears his or her testimony) he or she had done the best job she could under his/her particular circumstances the Full Commission will defer to the Deputy Commissioner.
Call (804) 358-4766 or Email Jerry Lutkenhaus now for a free consultation about your case.
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 orwww.geraldlutkenhaus.com. In 2010 he was given AVVO's highest rating of "superb" in their system. http://www.avvo.com/ attorneys/23230-va-gerald-lutkenhaus-1814627.html.
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