Friday, December 19, 2014

In Virginia when is a lawsuit for negligent hiring better than a workers' compensation claim?

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.