Advanced Virginia
Workers’ Compensation Issues
October 8, 2014
Raymond L. Hogge, Jr.
Hogge Law
500 E. Plume Street
Norfolk, Virginia 20510
(757) 961-5400
rayhogge@virginialaborlaw.com
www.VirginiaLaborLawcom
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
This presentation is intended solely for
informational purposes, and is not offered as
legal advice.
To receive a copy of this presentation, or for
assistance in Virginia workers’ compensation
matters, please contact the author.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Exclusive Remedy Doctrine
• Virginia Code § 65.2-307.
• Rights and remedies under Virginia Workers’
Compensation Act are exclusive rights and
remedies of worker against employer for
injury, illness, or death covered by the Act.
• Sometimes called the “workers’ compensation
bar.”
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Exclusive Remedy Doctrine
• Worker cannot bring a common law action
against employer for covered injury by
accident arising out of and in the course of the
employment.
– Lawsuit for employer negligence barred.
– Lawsuit for intentional tort barred.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Exclusive Remedy Doctrine
• Procedures for asserting exclusivity of
workers’ compensation as a bar to common
law action:
– Virginia courts: plea in bar.
– Federal courts: motion to dismiss or motion for
summary judgment.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Exclusive Remedy Doctrine
• Compensability does not determine exclusivity
– Giordano v. McBar Industries, Inc., 284 Va. 259
(2012): If injury is by accident arising out of and in
the course of employment, then Act applies even
if defense precludes recovery.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Exclusive Remedy Doctrine
• Assault by Coworker
– Coworker assault is an “accident” if it was the
result of an actual risk arising out of the
employment.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Exclusive Remedy Doctrine
• Assault by Coworker
– Coworker assault arises “in the course of” the
employment if it occurs within the period of
employment at a place where, from the nature of
the work, the employee may be reasonably
fulfilling the duties of the employment or doing
something reasonably incidental to the
employment.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Exclusive Remedy Doctrine
• Assault by Coworker
– Coworker assault arises “out of” the employment
if it meets the “actual risk” test (not the
“positional risk” test): actual risk exists if there is
a causal connection between the worker’s injury
and the conditions under which the employer
requires the work to be done, or if the conditions
under which the employer requires the work to be
done are a contributing cause of the injury.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Exclusive Remedy Doctrine
• Assault by Coworker
– Coworker assault does not arise “out of” the
employment if it is personal to the worker and not
directed against the worker as an employee or
because of the worker’s employment.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Exclusive Remedy Doctrine
• Assault by Coworker
– Example: Butler v. Southern States Cooperative,
Inc., 270 Va. 459 (2005). Two coworkers delivering
goods for employer. Coworker 1 forcibly tried to
kiss coworker 2. Coworker 2 sued employer in
tort for assault by coworker 1. Tort action not
barred by exclusive remedy doctrine because
assault did not arise out of the employment; it
was the result of personal attraction and
employment was not a contributing cause.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Exclusive Remedy Doctrine
• Assault by Coworker
– Example: Hilton v. Martin, 275 Va. 176 (2008).
While working together on duty, EMT 1 engaged
on horseplay with EMT 2 and shocked EMT 2 with
a charged defribillator, unintentionally causing
death of EMT 2. Tort action by estate of EMT 2
against employer not barred by exclusive remedy
doctrine because actions of EMT 1 were purely
personal to EMT 2 and inappropriate use of
employer equipment did not establish causal link
to duties of employment.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Exclusive Remedy Doctrine
• Assault by Coworker
– In Hilton v. Martin, 275 Va. 176 (2008), Virginia
Supreme Court stated: “It is immaterial whether
the assailant’s subjective motive is playful,
amorous, vindictive, or hostile. An injury resulting
from an assault arises out of the injured person’s
employment when it is directed at the victim as
an employee.”
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Exclusive Remedy Doctrine
• “Innocent Horseplay” Doctrine
– Injury caused by “innocent horseplay” by
coworker is accident arising out of and in course
of employment.
– Hilton v. Martin caused debate about whether
innocent horseplay doctrine was abrogated, but
Simms v. Ruby Tuesday, 281 Va. 114 (2011), held
that Hilton v. Martin did not have that effect.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Exclusive Remedy Doctrine
• “Innocent Horseplay” Doctrine
– Example: Simms v. Ruby Tuesday, 281 Va. 114
(2011). Coworkers friends of claimant threw ice at
him at work; claimant dislocated shoulder; injury
arose out of the employment. Virginia Supreme
Court adopts the “innocent horseplay” doctrine injury to a non-participating innocent victim
resulting from playful or joking action of coworker
is an actual risk of employment because the
workplace creates the situation that results in the
injury.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Exclusive Remedy Doctrine
• “Innocent Horseplay” Doctrine
– Doctrine applies only to “a non-participating
innocent victim.”
• Query: If the victim participates in the
horseplay, does the doctrine apply?
• Query: If victim participates in the horseplay,
can the employer assert as a defense that the
victim’s injury resulted from his deliberate
violation of an employer safety rule?
• What is “innocent?”
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Exclusive Remedy Doctrine
• Strangers to the Business
– Exclusive remedy doctrine does not bar injured
worker from suing a “stranger to the business”
who causes his injury.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Exclusive Remedy Doctrine
• Strangers to the Business
– Test is whether, at the time of the accident, the
party injuring the worker was performing work
which was part of the trade, business or
occupation of the worker’s employer. Compare:
• Bosher v. Jamerson, 207 Va. 539 (1966).
• Giordano v. McBar Industries, Inc., 284 Va. 259
(2012).
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Exclusive Remedy Doctrine
• Strangers to the Business
– Bosher v. Jamerson, 207 Va. 539 (1966): Claimant
employed by contractor; injured by subcontractor
employee while sub’s employee was laying sand
for foundation of project under direction of
contractor. Exclusive remedy doctrine barred
negligence action by claimant against
subcontractor because sub’s employee was
performing part of contractor’s work at time of
injury.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Exclusive Remedy Doctrine
• Strangers to the Business
– Giordano v. McBar Industries, Inc., 284 Va. 259
(2012): Giordano employed by construction
contractor erecting building; killed when building
collapsed under weight of drywall shipment
unloaded onto building by supplier of drywall
subcontractor. Exclusive remedy doctrine did not
bar negligence action against supplier, because
delivery of drywall was not part of contruction
business.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Willful Misconduct Defenses
• Willful misconduct defenses under Va. Code §
65.2-306
– Can provide defenses to otherwise compensable
claims.
– More than one defense may apply in a particular
situation.
– All potentially applicable defenses should be
asserted.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Willful Misconduct Defenses
• Willful misconduct defense under Va. Code §
65.2-306(A)(1): No compensation shall be
awarded for an injury caused by the
employee’s “willful misconduct” or
“intentional self-inflicted injury.”
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Willful Misconduct Defenses
• Willful misconduct defense under Va. Code §
65.2-306(A)(2): No compensation shall be
awarded for an injury caused by the
employee’s “attempt to injure another.”
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Willful Misconduct Defenses
• Willful misconduct defense under Va. Code §
65.2-306(A)(3): No compensation shall be
awarded for an injury caused by the
employee’s “intoxication.”
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Willful Misconduct Defenses
• Willful misconduct defense under Va. Code §
65.2-306(A)(4): No compensation shall be
awarded for an injury caused by the
employee’s “willful failure to or refusal to use
a safety appliance or perform a duty required
by statute.”
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Willful Misconduct Defenses
• Willful misconduct defense under Va. Code §
65.2-306(A)(5): No compensation shall be
awarded for an injury caused by the
employee’s “willful breach of any reasonable
rule or regulation adopted by the employer
and brought, prior to the accident, to the
knowledge of the employee.”
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Willful Misconduct Defenses
• Willful misconduct defense under Va. Code §
65.2-306(A)(6): No compensation shall be
awarded for an injury caused by the
employee’s “use of a nonprescribed controlled
substance identified as such in Chapter 34 (§
54.1-3400 et seq.) of Title 54.”
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Willful Misconduct Defenses
• Virginia Worker’s Compensation Rule 1.10
– Employer must give written notice of intent to
assert a statutory willful misconduct defense, and
statement of facts supporting he defense, within
15 days prior to hearing.
– If employer fails to provide the required notice
then the right to assert the defense may be
waived.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Willful Misconduct Defenses
• The employer has the burden of proof on each
of the willful misconduct defenses.
– Employer must able to prove existence and
communication of relevant employer policies and
safety rules.
– Employer must collect and preserve evidence
necessary to prove defenses.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Intoxication Defenses
• Worker is presumed to have been intoxicated
at time of injury if at time of injury the blood
alcohol content of worker was equal to or
greater than the maximum allowed for
operating motor vehicle under Virginia law.
• Worker may overcome the presumption by
clear and convincing evidence.
• Presumption does not apply if worker dies as a
result of the injury.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Intoxication Defenses
• Employee is presumed to have been
intoxicated at time of injury if at time of injury
employee had a positive drug test by a
certified laboratory.
• Employee may overcome the presumption by
clear and convincing evidence.
• Presumption does not apply if employee dies
as a result of his injuries.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Intoxication Defenses
• Post-Accident Testing
– In order to ensure availability of intoxication
presumptions, employers should adopt and
enforce a written policy requiring drug and alcohol
tests immediately after a workplace injury.
– Testing facilities should be identified in advance.
– Supervisors should receive regular training on
procedures for post-accident testing.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Intoxication Defenses
• Causation
– Employer is required to prove more than that
worker was intoxicated; must prove a causal
connection between intoxication and injury.
– Standard of proof is preponderance of the
evidence.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Intoxication Defenses
• Causation
– Employer is required to prove intoxication was a
contributing cause of the injury; not required to
prove intoxication was the sole cause.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Intoxication Defenses
• Causation
– Closeness in time between alcohol / drug use and
accident is not alone sufficient to establish
causation.
– Example: Norvak v. Michael B. Hill Construction
Co., VWC File No. 231-99-55 (2009): “The
statement that the claimant smoked marijuana
‘close in time’ to the accident is insufficient to
determine when he used it.”
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Intoxication Defenses
• Advanced Intoxication Defense
– Defense established by court in American Safety
Razor v. Hunter, 2 Va. App. 258 (1986).
– Not a statutory defense.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Intoxication Defenses
• Advanced Intoxication Defense
– “An employee may abandon his employment by
reaching an advanced state of intoxication which
renders the employee incapable of performing his
duties. .... A severely intoxicated employee has
removed himself from the scope of his
employment. Any injuries suffered thereafter are
not in the course of the employment.”
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Intoxication Defenses
• Advanced Intoxication Defense
– Defense does not apply if intoxicated employee
continues to perform his job duties.
– Employer should immediately remove employee
from active duty and conduct drug / alcohol
testing upon suspicion of intoxication, and should
not permit employee to resume active duty until
non-intoxication can be confirmed.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Self-Inflicted Injury Defense
• Suicide - a question of causation
– Food Distributors and Century Indemnity Co. v.
Estate of Ball, 24 Va. App. 692 (1997):
Compensable shoulder injury leading to chronic
pain, leading to depression, leading to suicide.
Suicide held compensable.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Self-Inflicted Injury Defense
• Suicide - a question of causation
– Amoco Foam Products v. Johnson, 257 Va. 29
(1999): Supreme Court holds that consequence of
a compensable consequence is not compensable.
Worker suffered compensable left ankle injury;
after left ankle surgery, left ankle gave way
resulting in right knee injury; right knee injury was
compensable consequence of left ankle injury; the
worker fell again because of right knee, causing
new right knee injury; new injury was not
compensable.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Self-Inflicted Defense
• Suicide - a question of causation
– John Paul Plastering v. Johnson, 265 Va. 237
(2003): Worker suffered compensable injury to
wrist and back, which caused depression.
Depression caused structural changes in brain,
described as brain injury. Worker claimed total
disability resulting from brain injury. Brain injury
not compensable because a consequence of a
consequence.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Self-Inflicted Injury Defense
• Suicide - a question of causation
– Farmington Country Club, Inc. v. Marshall, 47 Va.
App. 15 (2005): Va. Ct. App. announces Food
Distributors has been implicitly overruled by
Amoco Foam and John Paul Plastering.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Self-Inflicted Injury Defense
• Suicide - a question of causation
– Now: Compensability of suicide is theoretically
possible, but establishing a direct causal
connection between compensable injury and
suicide, without depression as an intermediate
cause, is difficult.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Safety Rule / Appliance Defense
• 4 Elements of Defense:
(1) the safety rule was reasonable;
(2) the rule was known to the worker;
(3) the rule was for the worker’s benefit; and
(4) the worker intentionally undertook the
forbidden act.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Safety Rule / Appliance Defense
• Employer must show that the worker, knowing
the rule, intentionally performed the
forbidden act.
• It is not necessary for employer to prove the
worker purposefully determined to violate the
rule.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Safety Rule / Appliance Defense
• Proof of negligence, or even gross negligence,
is not sufficient to establish the defense.
• Example: Pitt v. Shackleford’s Restaurant, 2012
Va. App. Lexis 94 (Va. Ct. App. 2012):
“Evidence of a hazardous act involving obvious
danger, without more, is insufficient to bar
recovery under the Act.”
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Safety Rule / Appliance Defense
• Employers wishing to assert this defense
should ensure that all safety equipment used
by the worker is operating properly.
• Example: Buzzo v. Woodridge Trucking, Inc., 17
Va. App. 327 (1993) - Employer of worker
injured when driving truck at excessive speed
could not prevail on this defense because
speedometer in truck was not operating.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Safety Rule / Appliance Defense
• Worker may rebut this defense by showing
that there was a valid reason for his inability
to obey the rule.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Safety Rule / Appliance Defense
• Worker may rebut this defense by showing the
safety rule was not kept alive by “bona fide
enforcement.”
• “Proof of a pattern or practice of failing to
discipline employees guilty of willful violations
of a safety rule defeats the defense ... when
such violations occur under circumstances
charging the employer with knowledge or
acquiescence.”
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Safety Rule / Appliance Defense
• Bona fide enforcement of safety rules does
not always require disciplinary action; in some
circumstances training or other non-punitive
corrective action can be sufficient.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Safety Rule / Appliance Defense
• Possible unresolved issue: Does employer
bear burden of proving strict enforcement of
safety rule? Or does worker bear burden of
proving lack of strict enforcement as rebuttal
to the defense?
• Ether way, employers should be prepared to
prove strict enforcement.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Wrongful Discharge
• Prohibition Under Virginia Code § 65.2-308:
“No employer or person shall discharge an
employee solely because the employee
intends to file or has filed a claim under this
title or has testified or is about to testify in
any proceeding under this title. “
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Wrongful Discharge
• Example: Charlton v. Craddock-Terry Shoe
Corp., 235 Va. 485 (1988): Employer found
liable where employed fired worker because
worker refused to sign waiver of workers’
compensation claim.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Wrongful Discharge
• Virginia circuit courts have jurisdiction over
claims under the statute.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Wrongful Discharge
• Statute appears to impose individual liability.
– Statutes provides “no employer or person” shall
discharge the employee in violation of the statute.
– Circuit court jurisdiction under statute is over
employer and “the person who allegedly
discharged the employee.”
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Wrongful Discharge
• Statute of Limitations: Virginia Code § 8.01248 (2 years).
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Wrongful Discharge
• Statute authorized court to issue injunctions
to restrain violations.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Wrongful Discharge
• Statute authorized court to “order appropriate
relief, including actual damages.”
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Wrongful Discharge
• Statute authorized court to award back pay
plus interest.
• Statute does not expressly authorize front pay.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Wrongful Discharge
• Statute authorized court to award attorney
fees to successful claimants.
• No provision for award of attorney fees to
prevailing employer.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Wrongful Discharge
• Statute authorized court to order rehiring or
reinstatement.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Wrongful Discharge
• Liability under the statute is difficult to
establish because it prohibits discharge
“solely” because the worker has engaged in
the protected activity.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Wrongful Discharge
• Employer motivation behind discharge is
central question.
• Employer motivation usually established by
circumstantial rather than direct evidence.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Wrongful Discharge
• Plaintiff may establish prima facie case by
circumstantial as well as direct evidence.
• In Jordan v. Clay’s Rest Home, 253 Va. 185
(1997), Virginia Supreme Court has rejected
use of McDonald Douglas v. Green burden
shifting in actions under the statute.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Wrongful Discharge
• Worker must prove more than just close
proximity in time between filing claim and
discharge.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Wrongful Discharge
• The discharge of a person who has filed a
fraudulent claim is not a violation of this
statute.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Wrongful Discharge
• The statute provides the exclusive remedy for
retaliation for filing a worker’s compensation
claim.
• Retaliation for filing a worker’s compensation
claim cannot be asserted as a claim for
discharge in violation of public policy.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Wrongful Discharge
• Unresolved issue: availability of punitive
damages.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Wrongful Discharge
• Unresolved issue: availability of jury trial.
Advanced Workers’ Compensation
Raymond L. Hogge, Jr.
Hogge Law advises and represents employers across
Virginia in all aspects of labor and employment law,
including workers’ compensation. Hogge Law
welcomes the opportunity to assist employers and
carriers in preventing and responding to workers’
compensation claims. For information about our firm,
please visit our website HoggeLaw.com. For
additional resources for Virginia employers, pleas visit
our website VirginiaLaborLaw.com.