Sexual Harassment in Virginia may lead to a Constructive Discharge Lawsuit!

In a recent case (Faulkner v. Dillon VLW 015-3-141) Ms. Faulkner alleged the defendant had sexually harassed her. The defendant was the owner of dry cleaning business in Bluefield, Virginia. As a result, she re-signed and commenced a lawsuit for constructive discharge in the United States District Court in Abingdon, Virginia.

Virginia has traditionally followed the "employee at will" doctrine. This essentially means an employer can discharge an employee for any reason that is not illegal. The Supreme Court of Virginia has never recognized constructive discharge as an exception to the employee at will rule.

Notwithstanding this, US District Court Judge Jones said there was a growing trend in the Circuit Courts in Virginia to recognize this exception. Judge Jones allowed Ms. Faulkner's claim to go forward as an exception to the "employee at will" doctrine.

For more information: contact Jerry Lutkenhaus at (804-358-4766 or 1(800) 256-8862 or visit our website at Virginia Workers Compensation Lawyer.

Mediation May Be a Good Idea in Your Virginia Workers' Compensation Case

WHY NOT MEDIATE YOUR VIRGINIA WORKERS' COMPENSATION CASE?

When there is a dispute about your injury at work, the Virginia Workers' Compensation offers a mediation process to work out the dispute. Is going this route a good idea? These are the reasons why I feel it is a good idea:

1. It does not cost to go to a mediation.
2. The mediation is conducted by a Deputy Commissioner.
3. The mediation is confidential.
4. If the parties agree, you can work out a settlement at a mediation.
5. If the parties do not agree the case can be set for a hearing.
6. The claimant can obtain a confidential opinion about the merits of his/her case.
7. The claimant can find out what is bad about his/her case. 

What are the bad things about a mediation?

1. It does take time to set up a mediation. 
2. The insurance company is not forced to settle at a mediation. 
3. The insurance company can find out the bad things about the claimant's case. 

In summary, I believe mediations on the whole benefit the claimant. 

For more information, contact Jerry Lutkenhaus at (804)-358-4766 or at  1(800) 256-8862 and you can visit our website at : Virginia Workers' Compensation Lawyer. 

3 Ways to Protect your Virginia Workers' Compensation Claim

One, you need to report your injury immediately. Technically, you have 30 days in Virginia to report your injury on the job. However, if the accident is not immediately reported, the insurer will have reason to deny the claim. How, if you wait, does the insurer know your injury occurred on the job.

Two, you need to go to a doctor as soon as possible. You can try "to grin and bear it" for as long as possible. However, if you want the insurer to accept your claim without any problems, the you must immediately seek medical attention for your injury. Then, you must give the doctor "a clear history" regarding how you were injured. If you say you don't know what happened and that appears in the medical history, then your claim will be denied.

Third, if you have a serious injury on the job, then don't hesitate to contact a Virginia Workers' Compensation lawyer. You need to obtain an opinion about your case as soon as possible.

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

Can you still get Virginia Workers' Compensation benefits if your motor vehicle accident was caused by use of a cell phone?

CAN YOU STILL GET WORKERS' COMPENSATION IN 2021 IF YOUR ACCIDENT WAS THE RESULT OF USING A CELL PHONE?

As most people are aware an increasing cause of motor vehicle  accidents is the driver being distracted by his or her use of a cell phone.

In the past, the Virginia Workers' Compensation Commission has allowed coverage for injured workers who   have an accident caused by use of the company business cell phone while driving. The reason for compensability is the use of the cell phone is a risk of the employment.

However, the 2015 Virginia General Assembly almost ended this workers' compensation coverage. A bill was proposed making it a crime to drive a motor vehicle and use a cell phone at the same time. In Virginia it was already a crime for a teenager to use a cell phone while driving. The proposed bill would extend this prohibition to all adults. The bill did not pass. It was referred to a committee for more study.

If the bill had passed, it would probably be impossible to obtain workers' compensation benefits in Virignia if your motor vehicle accident was caused by cell phone use. This is so because the insurer would assert you cannot obtain benefits if you were committing a "crime" at the time.

This means the Turpin Case is still good law in Virginia. The Commission said in that case:

Commissioner Roger L. Williams issued the opinion for the Commission, ultimately deciding that the employer was liable for workers’ compensation and stated that it didn’t matter who footed the bill for the cell phone, what mattered in this case was Ms. Turpin’s duty to be attentive to the cell phone while on-call and that her attentiveness to the ringing cell phone and potential work-contact was enough to cause her to be inattentive to her driving. "There was no way the claimant would know, in advance, whether a particular call was employment related. She was required to answer her cell phone, and be attentive to it, because it could have been an employment-related call." Turpin v. Wythe County Community Hospital, VWC File No. 0000018-30-28, 5 (December 29, 2010).

In summary, in Virginia you can still hope to obtain workers' compensation benefits even though your motor vehicle accident was "caused" by use of a cell phone. HOWEVER, THIS MAY HAVE CHANGED SINCE IN 2021 IN VIRGINIA IT IS NOW ILLEGAL TO USE A CELL PHONE WHILE OPERATING YOUR CAR. 

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

Seven ways to lose your Virginia Workers Compensation Rights!

7 WAYS TO LOSE YOUR VIRGINIA WORKERS' COMPENSATION

You have an accident at work in Virginia. The insurer accepts the claim. It sends you an agreement form which you sign and return and the insurer files it with the Virginia Workers' Compensation Commission. The Commission enters an award for weekly compensation and lifetime medical rights for your injury.

But as soon as you are on compensation the insurer looks for ways to cut it off. These are some of the common ways this is done.

1.  Obtaining a doctor's release. The insurer will often assign a Nurse Case Manager to your case. The Nurse will attend your doctor's appointments and often request the doctor to release you back to work before you are ready.

2.  The Employer creates a job. You cannot do your pre-injury job so the Employer creates a job you can do. Sometimes this can be no more than sitting and doing nothing. Sometimes it will be sitting at a desk answering the phone. If the Employee refuses to do the job, the insurer can cancel your future compensation rights.

3.  The False Light Duty Job. The Employer provides a light duty job which is "not" a light duty job and violates the doctor's restrictions. You refuse to do it and the Employer tells the insurer your refused a light duty job.

4.  Video Surveillance. The insurer assigns a private investigator to your case. He takes a video which shows you can do much more than what you told the doctor or the video shows you working on the side.

5.  The Independent Medical Examination (IME). The insurer often thinks your doctor is too claimant oriented. Then the insurer will schedule the claimant to be examined by an insurance company doctor. This exam will not be "independent" even though it has that name. If the IME doctor says you can work, the insurer will attempt to cut off the claimant's compensation.

6.  Employer Harassment. Even if you are successfully doing the light duty job the Employer provides, the Employer or other employees may harass you thinking you are faking or exaggerating your disability. If you get frustrated by this and walk off the job, the insurer can use this to cut off future compensation.

7.  The Bad Functional Capacity Evaluation (FCE). Many doctors do not like to set work restrictions. Instead, they will prefer that this be done by therapists trained as disability examiners. However, the insurers know the disability examiners who are friendly to the insurers. Often, these will claim the injured worker did not give full effort during the exam or was faking his or her complaints.

In summary, these are seven ways to lose your workers compensation rights in Virginia.

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

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.