Virginia Court Affirms Award for Brown Recluse Spider Bite

A Virginia appellate court recently affirmed a determination by the state’s Commission which, in a divided decision, had awarded workers’ compensation benefits to an administrative assistant who contended she was bitten by a brown recluse spider while she was at her desk talking with a coworker [James Madison Univ. v. Housden, 2020 Va. App. LEXIS 63 (Mar. 10, 2020)]. Observing that the evidence showed not only that medical records taken shortly after the incident indicated that doctors suspected the bite on her foot to be a brown recluse spider bite or sting, but that when shown a number of photographs of spider species at the emergency room, the claimant identified the brown recluse as the type of spider she had seen at the workplace earlier in the day, the court said the record supported the Commission’s split decision.

Background

Claimant testified that on the day of her injury, she saw two spiders on a counter as she entered her office. She killed them, but was unable to catch a third spider that she saw on a cabinet. Later that day, while she was talking to a coworker at her desk, the claimant felt a bite on her foot. She went to the emergency room, where a doctor noticed significant swelling and redness on her foot. Based on pictures shown to her, she identified the type of spider she had seen as a brown recluse. The claimant was admitted to the hospital, underwent surgery, and was discharged nine days later.

Multiple coworkers testified that they had seen quite a few spiders in and around their offices in the time period proximate to the claimant’s alleged bite. One coworker, who worked in the same office suite as the claimant, testified that at the time of the alleged bite, there had been construction work ongoing for several months in the boiler room, which was located directly below their suite. That coworker added that she had never seen a spider in the building until the construction began, but that such sights were common during the construction period.

A pest control specialist, hired by the employer to provide monthly treatments on the employer’s college campus, said he had never received a complaint about spiders in the building housing the claimant’s office, had never seen a brown recluse spider anywhere on campus, and that he applied preventative treatments monthly to the interior of the building.

Appellate Court: “Actual Risk”

Noting that Virginia follows what it calls the “actual risk” test to demonstrate whether an injury arises out of the employment, the court an injury could not be compensable if the employee would have been equally exposed to the risk apart from the employment. Citing earlier decisions, the court said the danger must not be common to the neighborhood.

The court cautioned that a portion of the Commission’s majority opinion came quite close to using the positional risk test — which would have been error — but the court noted that the record as a whole satisfied the actual risk test the court had articulated.

The court stressed that the boiler room construction had subjected the claimant to a risk of spiders that was qualitatively different from that to which the general public was exposed. It added that the majority of the Commission had found that not only did claimant see three spiders the day of the incident, but also her coworkers observed spiders within a few months of claimant’s injury, and additional testimony indicated the problem persisted until shortly before the Commission’s hearing date. The court also said the record supported a finding that claimant was bitten by a brown recluse spider, an invasive species not common to an office environment. Therefore, credible evidence in the record demonstrated a causative danger that was peculiar to claimant’s workplace.