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.

Sexual Assault in the Workplace in Virginia: Is there a workers compensation remedy?

The test for a Workers's Compensation Injury in Virginia has two components. It must occur "during the course" of the employment. And it must "arise out of" the employment. Thus, a sexual assault during work would definitely meet the first prong of the test since it occurred at work. The more difficult question is whether the assault meets the second prong of the test. Did the assault "arise out of" of the work environment?

If an employee operated the midnight shift at a 7-11, the employee could readily argue such employment exposed the employee to more risks of sexual assault than the American public is normally exposed to.

Likewise a courier who had to make payroll deposits could reasonably argue this employment created a greater risk of being assaulted.

On the other hand what if the sexual assault was by a fellow employee in the work place? Sometimes the victim does not want to be covered by the Workers' Compensation Act. If the injury is horrific, the victim might rather file a personal injury claim. In a workers' compensation claim, the remedy is limited to compensation for lost wages and medical expenses. In a personal injury claim, the victim can try to recover for pain and suffering, loss of quality of life, etc.

If the sexual assault by the fellow employee takes place in the work place but there is no other link to the work place environment, then the victim will not have a workers' compensation claim. If the victim thinks she can recover more in a personal injury case, she may not want workers' compensation coverage. Conversely, the employer might desire workers' compensation coverage since the victim's damages are more limited.

Virginia Code Section 65.2-301 does provide an employee can obtain a presumption the sexual assault arose out of the work place if the assault is reported to the police and the victim proves it came about due to the conditions of the work place.

In one recent case, the City of Richmond tried to escape personal injury liability and prove the sexual assault arose from the workplace by showing the attacker looked at pornagraphic materials at work. The court denied the City's claim. In another case, the employer tried to escape personal injury liability by showing the employer knew the assailant had prior criminal convictions when the assailant was hired. The court denied the employer's claim. In the case of Butler v. Southern States, 620 S.E.2d 768 (November 4, 2005) the Virginia Supreme Court refused to bar a personal injury claim for an employee who was sexually assaulted by a fellow employee while they were making a delivery for the employer. The Court allowed a personal injury lawsuit for negligent hiring to go for award against the employer.

In summary, the victim of a sexual assault in the work place may have a workers' compensation claim but should consult an attorney regarding whether a personal injury claim is a better choice. Which remedy is best sometimes has to be determined on a case by case basis.

For more information: contact Jerry Lutkenhaus at (804) 358-4766 or call toll-free at (800) 256-8862 or visit our website at

Virginia Workers' Compensation Lawyer.

Virginia arm injury on the job or was it a neck injury?

DID YOU SUFFER AN ARM OR NECK INJURY AND WHY THE ANSWER IS IMPORTANT UNDER VIRGINIA WORKRS' COMPENSATION LAW

In Virginia I often see an injury on the job that is diagnosed as an arm injury. Later it turns out it was really a neck injury or there was a neck injury in addition to the arm injury. A late discovery of a neck injury in addition to the arm injury can be a problem if the neck injury is never added to the claim within two (2) years of the date of accident.

If the original claim only contains an award for an arm injury, then a claim for a neck injury will probably be lost if it is not added within two (2) years of the date of accident. The usual rule followed by the Virginia Workers' Compensarion is that an award for just "an arm" does not include an award for a different part of the body such as a "neck" when there is no mention of the neck on the award.

Thus, if a worker has a complicated arm neck injury, he or she should consult a lawyer right away to make sure he or she has an award for both the neck and the arm. An award for one part of the body will not include other parts not mentioned in the award.

FOR MORE INFORMATION: contact Jerry Lutkenhaus at (804) 358-4766 or toll free at 1(800) 256-8862 or visit our website at Virginia Workers' Compensation Lawyer.

What is filing a workers' compensation claim in Virginia?

WHY YOU MUST FILE A CLAIM IN A VIRGINIA WORKERS' COMPENSATION CASE?

If an injured employee contacts the Virginia Workers' Compensation Commission after an injury, he or she may be informed that the employee can "file a claim for the injury" and the Commission will mail the employee the form or it can be filed on-line.

The Virginia form contains a Part A and a Part B. Part A asks for the information about the accident. Part B asks what benefits the employee is seeking.

Under Virginia workers' compensation law "a claim" must be filed with the Commission within two (2) years of the date of the accident or the claim will be time-barred.

In a recent case the injured employee only filed Part A within the two (2) year time period. Later the employee asked for wage compensation for a period within the first two (2) years. The insurance company defended stating the employee had not filed Part B of the claim form asking for wage compensation within two (2) years of the accident. The Virginia Court of Appeals disagreed with the insurance company holding filing Part A within the two (2) time limit was enough to constitute filing a claim.

FOR MORE INFORMATION: contact Jerry Lutkenhaus at (804) 358-4766 or at 1(800)-256-8862 (toll-free) or visit our website at Virginia Workers' Compensation Lawyer.

Injury at work in Virginia: is falling on a staircase covered?

WHY FOLLOWING DOWN A STAIRS AT WORK MAY NOT BE AN ACCIDENT

A common injury at the work-place is falling on a staircase or on steps. Will workers' compensation insurance cover this injury in Virginia?

Virginia follows the "actual risk" rule. This means a risk in the work environment must cause the injury. So, as a practical matter falling on a staircase or steps may fail as a claim in Virginia if there is nothing wrong with the steps. Some things that could make this claim compensable are as follows:

1.  If the staircase is poorly lit or if a light is out this can be a "risk" of the employment.

2.  If the steps are slippery or wet, this can be a "risk" of the employment.

3.  If the worker was bumped by a fellow employee on the steps this could be a "risk" of the employment.

4.  If the steps are unusual in any way regarding width or length, this could be a risk of the employment.

5.  If the employee was encumbered by packages or other items while on the steps this could be a "risk" of the employment.

6.  If an office emergency caused the employee to rush down or up the stairs, this could be a "risk" of the employment.

In summary, even though the insurance company denies coverage for the staircase fall, the employee should check with an experienced Virginia workers' compensation attorney to find out if there is coverage under one of the exceptions listed above. The employee in a staircase accident is often asked to give a recorded statement to the claims adjuster. This is dangerous. Often, the injured employee will make the following statement: "I fell and it happened so fast so I don't know what happened." This could be fatal to a claim. Call an attorney as soon as possible.

FOR MORE INFORMATION: contact Jerry Lutkenhaus at 804-358-4766 or 800-256-8862 (toll-free) or check our website at Virginia Workers' Compensation Lawyer.

Social Security Disability Lawyer -- Tell Your Lawyer the Truth

ALWAYS TELL YOUR SOCIAL SECURITY LAWYER EVERYTHING ESPECIALLY THE TRUTH

Your Social Security Lawyer cannot represent you successfully if you do not tell him or her the truth. I had a recent case involving this issue. I had a client who I will call John Doe. He was an auto repair man with some severe disabilities. He needed hip replacements and bilateral knee replacements. He could barely walk. Operations were scheduled. We had a hearing in front of the judge. John Doe under oath said he had not worked in two years. Shortly after the hearing the judge sent me a fraud investigation report. The report indicated John Doe was accepting occasional odd jobs at a repair shop even though he claimed to be a "disabled" worker.

Social Security follows the concept that you are not really working unless you are making more than $1,000 a month. It is possible John Doe's odd jobs did not amount to $1,000 a month and thus did not result in disqualifying substantial gainful activity (SGA).

However, John Doe did not tell me about his odd jobs prior to the hearing. Instead, he testified under oath he had not worked in two years. Thus, I feel sure the judge will find John Doe not credible about his disability even though he does need many operations. If John Doe would only have been truthful we probably could have explained the "odd jobs" he did while waiting for his disability hearing.

FOR MORE INFORMATION: contact Jerry Lutkenhaus at 804-358-4766 or 800-256-8862 or visit our website atVirginia Disability Lawyer.

Injury on the Job in Virginia? Sign the Agreement for an Award right away!

WHY THE AGREEMENT FORM IS IMPORTANT IN A VIRGINI INJURY AT WORK CASE

In my opinion which was confirmed in a recent seminar, the injured worker should sign and return the Agreement for an Award form as soon as he/she receives it and return it to the claims adjuster for filing with the Commission.

If the insurance company accepts your injury in Virginia, the carrier is required to send the injured worker a form called the Agreement for an Award. This paper will spell out the injury that is covered, the compensation rate, the period that is being paid, and that lifetime medical care for that injury is being awarded. After both the worker and the claims adjuster sign the Agreement form, the carrier will normally forward it on to the Virginia Workers’ Compensation Commission and an award will be entered.

At a recent workers’ compensation seminar provided by the Virginia Workers’ Compensation Commission, a Commissioner explained labeling an injury a ‘back strain” will usually cover all injuries to the back such as herniated discs. However, to be safe it doesn’t hurt to file for an amendment to the award and add such additional body parts.

Also, the Commissioner pointed out recent case law confirmed signing an agreement for one body part does not preclude one from filing later to add additional body parts as long as the new claim is filed within two (2) years of the date of the accident.

On the other hand, the Commissioner if a claim is litigated then this litigation may preclude the worker from adding additional body parts if those claims are not specifically reserved in the litigation. Thus, the Agreement for an Award does not have the same preclusive effect as does a litigated case.

The rationale is Agreements for an Award and favored by the Commission as part of its administrative function. Agreements are not to be used as “traps” by carriers to foreclose claimants from their truly meritorious claims. So, injured workers sign those Agreements and mail them back to the claims adjusters.

However, if you don't quickly receive an Award from the Commission, you can always file a claim for your injury within two (2) years of your accident with the Commission.

FOR MORE INFORMATION: contact Jerry Lutkenhaus at (804) 358-4766 or (800) 256-8862 or visit our website at Virginia Workers Compensation Lawyer.