4.13 Workers’ Compensation

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2018 Ed.)

4.13 WORKERS' COMPENSATION

4.1301 Exclusive Remedy.

A. In General. The Workers' Compensation Act (the Act) is the exclusive remedy of any employee who has suffered an "injury by accident . . . arising out of and in the course of employment." ⁴⁹⁷

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The term "injury by accident" may include injuries that are caused by the intentional tort of a co-employee. ⁴⁹⁸

Three primary questions need to be answered to determine whether an injury is within the Act:

		1.	Does the injury constitute "injury by accident" within the meaning of the Act?
2.	Did the injury arise "in the course of" employment?
3.	Did the injury "arise out of" an "actual risk" of employment?

B. "Injury by Accident." Under Virginia law, the Act bars a civil action by an employee against an employer based on injury by accident, which is defined as "an obvious sudden mechanical or structural change in the body." ⁴⁹⁹

C. "In the Course of" Employment. Whether an injury has been suffered "in the course of" employment involves an examination of the time, place, and circumstances under which an injury has been suffered. ⁵⁰⁰ To

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be covered by the Act, an injury must both "arise out of" and occur "in the course of" employment. Generally speaking, if an injury occurs on the job or at the employer's place of business, particularly during working hours, the injury will be one that arises "in the course of" employment. ⁵⁰¹

D. "Arising Out of" Employment. In contrast to the question of whether an injury has occurred "in the course of" employment (a focus on time, place, and circumstance), the question of whether an injury "arises out of" employment examines whether there is a causal connection between the employment and the injury. To determine whether a specific injury "arises out of" the employee's employment, Virginia, unlike many jurisdictions, follows the "actual risk test." Under the "actual risk test," it is not sufficient that the injury occurred on the job. Rather, to "arise out of" employment, the injury must have its "origin in a risk connected with [the] employment, and flow[ing] from that source as a natural consequence." ⁵⁰² The question is whether the specific type of injury incurred is "a risk of [the employee's] employment." ⁵⁰³

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A short formulation of the actual risk test is: "An accident arises out of the employment if there is a causal connection between the claimant's injury and the condition under which the employer requires the work to be done." ⁵⁰⁴

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4.1302 Occupational Disease. A compensable injury under the Act also includes an "occupational disease." ⁵⁰⁵ "'Occupational disease' means a disease arising out of and in the course of employment, but not an ordinary disease of life to which the general public is exposed outside of the employment." ⁵⁰⁶ A disease arises out of the employment "only if there is apparent to the rational mind, upon consideration of all the circumstances":

		1.	A direct causal connection between the conditions under which work is performed and the occupational disease;
2.	It can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment;
3.	It can be fairly traced to the employment as the proximate cause;
4.	It is neither a disease to which an employee may have had substantial exposure outside of the employment nor any condition of the neck, back, or spinal column;
5.	It is incidental to the character of the business and not independent of the relation of employer and employee; and
6.	It had its origin in a risk connected with the employment and flowed from that source as a natural consequence, though it need not have been foreseen or expected before its contraction. 507

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If a disease is an "ordinary disease of life" to which the general public is exposed, it is an occupational disease only if it is established by clear and convincing evidence

		1.	That the disease exists and arose out of and in the course of employment as provided in section 65.2-400 with respect to occupational diseases and did not result from causes outside of the employment, and
2.	That one of the following exists:

		a.	It follows as an incident of occupational disease as defined in [title 65.2 of the Virginia Code]; or
b.	It is an infectious or contagious disease contracted in the course of one's employment in a hospital or sanitarium or laboratory or nursing home as defined in section 32.1-123 of the Virginia Code, or while otherwise engaged in the direct delivery of health care, or in the course of employment as emergency rescue personnel and those volunteer emergency rescue personnel referred to in section 65.2-101; or
c.	It is characteristic of the employment and was caused by conditions peculiar to that employment. 508

Hearing loss and the condition of carpal tunnel syndrome must be considered under the "ordinary disease of life" standard. ⁵⁰⁹

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Notes:

^[497] Va. Code §§ 65.2-101 (definition of injury by accident)...