Virginia Case Shows “On-the-Job” Injuries May Not be Compensable
The phrase is used quite often, even by attorneys: “He [or she] was hurt ‘on-the-job.’” The typical implication is that a worker who sustains an “on-the-job” injury deserves workers’ compensation benefits. Such use of imprecise language leads many claimants to assume their injuries are covered when, indeed, they may not be. For example, in Nelson v. Town of Christiansburg, 2017 Va. App. LEXIS 248 (Oct. 3, 2017), a Virginia appellate court affirmed the denial of benefits to a utility supervisor who sustained a back and lower extremity injury when, while performing his typical duties (i.e., “on-the-job”), he stood from a squatted position, twisted to his right, and felt a pop in his back, which sent him to the ground.
Background
Claimant’s duties included marking the location of utility lines, a task that typically required him to reach into below-ground meters in order to clip transmitters to them. He’d then use a receiver above ground to walk and mark the utility lines with paint. After marking the lines, claimant would reach back into the meters and retrieve the transmitters.
On the date of injury, claimant had finished this work at a water meter placed approximately two feet deep into the ground. Claimant was kneeling on the ground, with his backside on his heel bones, and had been in that position for a minute or two. As claimant rose, he simultaneously turned to his right to go to his truck. As he twisted to his right, “something popped” in his back and he “went straight back down on the ground.” Claimant felt this “pop” after rising approximately three-fourths of the way to a standing position.
At the time of the injury, claimant had several tools in his hands—a transmitter, a receiver, a meter box puller, and a ground rod. The tools weighed about eleven pounds. Claimant testified in his deposition that he could not say whether holding the objects had anything to do with his injury, but noted that the amount of items in his hand had some effect on his ability to maintain balance or stand up as he rose from the ground. However, he later clarified in his deposition that he did not lose his balance, and in fact “just fell” after he felt the “pop” in his back. Claimant later testified before the deputy commissioner that the weight of the objects did not create any problems for him as he stood up, but that attempting to control them at the same time did create “a little bit” of a problem.
Claimant acknowledged that he was not in an awkward position at the time of the incident. The meter was in a “pretty wide open and flat” grassy yard, which was “level with a little small dip.” The terrain around the meter did not require claimant to exert any physical effort when kneeling. Claimant said that in 15 years of working for the employer, he had marked utility lines “hundreds of times if not thousands.”
Claim Denied
The deputy commission denied the claim on the ground that claimant had not shown his injury arose from an actual risk of his employment. The full Commission affirmed, with one commissioner dissenting.
Actual Risk Test
On further appeal, the Court of Appeals noted that Virginia courts applied an “actual risk” test [see Larson’s Workers’ Compensation Law (“Larson”), § 3.04; see also Larson §§ 7.04 (unexplained accidents), 43.03 (injuries resulting from usual exertion or exposure]. Generally speaking, the causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. Most importantly, the mere happening of an accident at the workplace, not caused by any work-related risk or significant work-related exertion, is not compensable in Virginia. The Court reasoned that here, claimant’s routine act of standing up after working for a few minutes in a squatted position, without the demonstrated involvement of any contributing environmental factors in the injury, left claimant with an injury that was not compensable.
Confusion with Positional Risk Issue
As we discuss in Larson, § 7.01, if an employee falls while walking down the sidewalk or across a level factory floor—or as in this Virginia case—while standing from a common kneeling position, for no discoverable reason, the particular injury would not have happened if the employee had not been engaged in an employment activity at the time. It is relatively easy to establish that the injury occurred “in the course of the employment.” But did it actually “arise from the employment” as well? In a pure unexplained-fall case, there is no way in which an award can be justified as a matter of causation theory except by a recognition that this but-for reasoning satisfies the “arising” requirement. It is significant to note that in spite of clear statutory language requiring that the injury “arise” from the work, many courts confronted with the unexplained-fall problem have seen fit to award compensation. In jurisdictions like Virginia, however, however, compensation in unexplained fall situations is denied.