Virginia School Guard’s Injuries Allegedly Caused by Wind Were Not Compensable

Applying Virginia’s so-called “actual risk test,” a state appellate court affirmed a decision by the Virginia Workers’ Compensation Commission that had denied benefits to a school security officer who fell while about her duties at a high school in March 2018 [Martin v. Virginia Beach Pub. Sch., 2020 Va. App. LEXIS 88 (Mar. 31, 2020)]. Acknowledging the security officer’s contention that she fell when a gust of wind suddenly caused a metal gate, through which she had just passed, to close behind and strike her, the appellate court stressed that when an employee was injured “by some natural force” which operated directly upon her without the intervention of any other agency or instrumentality, the injury arose not out of the employment, but was solely due to an act of God.

Background

In February 2018, the security guard sustained injuries in a fall while on duty. She was placed on work restrictions and returned to work with the restrictions in place. On March 2, 2018, while the guard was walking to lunch on school grounds, she pushed open a metal gate, passing through it, when a gust of wind caused the gate suddenly to close, striking her and causing her to fall again. She sought benefits for the second fall.

Applying Virginia’s “actual risk” test, the deputy commissioner found that the guard had failed to prove by a preponderance of the evidence that she faced a risk that was any greater than the public at large. The deputy commissioner indicated that the guard’s fall was caused by a natural wind force which, standing alone, had to be considered an “act of God.” Her claim was accordingly denied.

The Commission affirmed, finding that the guard had failed to prove that she was exposed to an unusually high wind situation, that her employment caused her to be exposed to, or more susceptible to, injury on a windy day, or that the location of the incident exposed her to any greater risk than anyone else in that area.

Appellate Court Decision

The appellate court observed that an accident arises out of the employment when there is a causal connection between the injury and the conditions under which the employer requires the work to be performed. Under Virginia’s actual risk test, compensability is denied for injuries which come from a hazard to which the employee would have been equally exposed apart from the employment. An injury flowing from some “natural force,” standing alone, was considered an act of God and did not establish that the employee was entitled to coverage under the Act.

Contrary to the security guard’s contention, said the court, the act of God defense was not limited to lightning, floods, cyclones, hurricane winds, and tornados. Wind was a force of nature. Moreover, the court was unconvinced by the guard’s argument that the act of God defense was contrary to the humanitarian purposes of the Act. Clear precedent established the defense; the court could not unilaterally overrule its use.

The court stressed also that the guard’s focus was misplaced: the test was not whether the injury was caused by an act of God, but whether the employment collaborated in causing the injury or death. Here, the Commission had determined that the construction of the gate (or door) actually caused it to be less susceptible to wind than a solid door. Viewing a videotape of the injury, both the deputy commissioner and the Commission found nothing to corroborate the guard’s claim that it had been unusually windy on the date of the injury. The claimant had not established the necessary causal connection between her employment and the injury [see Larson’s Workers’ Compensation Law, § 5.03].