8.1 Introduction

• Library: Workers' Compensation Practice in Virginia (Virginia CLE) (2020 Ed.)

8.1 INTRODUCTION

8.101 General Considerations. An attorney analyzing a personal injury or wrongful death claim, whether from the injured person's perspective or from the defense standpoint, should begin by carefully considering the implications of the Virginia Workers' Compensation Act (the Act). ¹ This analysis should be made immediately by the attorney representing the injured person or the estate of the deceased and as soon as possible by the defense attorney once the file is received from the insurance carrier or defendant corporation.

This analysis is crucial because a plaintiff's attorney who is not experienced in workers' compensation law may be reluctant to explore the compensation features of a personal injury action or may think that the injured person would receive far greater monetary benefits from a personal injury action than from a workers' compensation claim. By the same token, the defense lawyer may fail to recognize that a suit filed by an injured individual can be dismissed if the injured party was actually going about an employer's work or was injured during the course of employment by a fellow employee.

Virginia generally does not permit common law suits by employees against employers or fellow employees. The Act provides the exclusive rights and remedies to an employee who is injured while in the employment of an employer. ² The Act conclusively presumes that every employer and employee, as defined in the Act, accepts the provisions of the Act and, specifically, that the employer is to pay and the employee is to accept compensation for personal injury or death by accident arising out of and in the course of the employment. ³ Virginia does not yet recognize any type of common law claim

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against an employer, even though the employer may have been guilty of gross or willful negligence or intentional acts or negligent in meeting certain safety requirements. ⁴

In analyzing whether or not an injured person may bring a common law action or is limited to benefits under the Act, the attorney must ascertain when and where the accident occurred and whether or not the person was performing any work-related duties at the time of the accident. The following issues should be considered:

1.	Where was the injured person when he or she was hurt (physical location)?
2.	Was the injured person working or engaged in any activity that might benefit an employer at the time of the accident?
3.	With whom or for whom was the injured person working?
4.	Who was directing the activity and who controlled or scheduled the activity?
5.	Was there a contract of employment, either for the injured person or the injured person's employer?
6.	How, by whom, and for what type of work was the injured person paid?
7.	Whose tools or equipment were being used?
8.	How often or consistently was the activity performed that the injured person was doing?
9.	What benefit did that activity provide to the potential defendant or to the employer of the defendant?
10.	Who could hire or fire the injured person?

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11. What was the relationship between the activities of the injured person and the activities of the tortfeasor?

The answers to these questions are helpful in analyzing (i) whether the injury arose out of or in the course of employment; (ii) the nature of the trade, business, or occupation of the employer or third party; (iii) the existence of any statutory employment relationship; and (iv) whether the injured person was an employee or an independent contractor of the defendant. ⁵ This analysis also helps to determine whether a workers' compensation claim or a personal injury or wrongful death action is appropriate and in the best interests of the client.

8.102 Plaintiff's Perspective. Plaintiff's counsel should always consider the possibility of a workers' compensation claim, since contributory negligence and assumption of the risk do not bar recovery and since the injured person has the right to lifetime medical expenses. Those two points alone make it worthwhile for every plaintiff's lawyer to consider pursuing a workers' compensation claim. In Harbin v. Jamestown Village Joint Venture, ⁶ for example, an employee was killed while crossing a busy intersection 10 to 20 feet from a pedestrian crosswalk on the way to a special business meeting at his supervisor's office. Although this case could have been brought as a wrongful death claim, the employee's widow sought workers' compensation benefits instead. The Court of Appeals granted benefits to the widow based on the special errand rule, and the employee's negligence in failing to cross the intersection at the crosswalk was not an issue.

The injured person is likely to receive not only a quicker recovery under the Act but also lifetime medical coverage. The relief afforded by the Act is fixed, so the amount of recovery is relatively certain. However, the plaintiff may be giving up the possibility of a greater damage recovery under a common law action in exchange for this speedy, more certain recovery. If the injured party wishes to pursue a personal injury suit, the plaintiff should consider filing a claim for workers' compensation benefits as well (without requesting a hearing before the Workers' Compensation Commission (the Commission)) to preserve any possible right to benefits while pursuing the common law action.

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The plaintiff may file a workers' compensation claim against the employer while simultaneously pursuing a personal injury claim against a third party. However, counsel should closely examine the relationship between the plaintiff and the third party. Simply because the injured party is employed by a company other than the tortfeasor does not necessarily mean that a personal injury suit is possible. There may still be a controlling statutory employment relationship between the parties. If this third party meets one of the statutory definitions of "employer," it is not an "other party" that would be subject to a common law action by the employee. ⁷

8.103 Defendant's Perspective. From the defendant's perspective, sections 65.2-706.1 and 8.01-420.5 of the Virginia Code and Richfood, Inc. v. Ragsdale ⁸ have dramatically changed the approach to defending both workers' compensation claims and civil suits filed by injured employees. These sections provide that a final, unappealed award by the Commission or an order entered by a circuit court of Virginia that a person is not an employee estops either of the parties from asserting that the person is an employee in any subsequent action.

Sections 65.2-706.1 and 8.01-420.5 took effect in 1997 and have changed the law in Virginia by prohibiting a defendant employer from taking advantage of Plummer v. Landmark Communications, Inc. ⁹ In Plummer, a newspaper carrier who was shot while waiting to collect her newspapers at a drop-off site was denied workers' compensation benefits on the basis that her injury did not arise out of and in the course of her employment. She also lost her common law action because the court ruled that she was not an independent contractor but rather an employee of Landmark Communications.

Before the enactment of Sections 65.2-706.1 and 8.01-420.5, an employer could argue inconsistent positions in the workers' compensation hearing and the civil court. However, after the enactment of these sections and the decision in Ragsdale, it is clear that the employer cannot take inconsistent positions. In Ragsdale, the Court of Appeals held that an employer is judicially estopped from taking inconsistent positions before the Commission and the court. Richfood defended the workers' compensation claim on the

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ground that the claimant was not its employee. In Richfood's defense against the claimant's previous common law tort action, its plea of the exclusivity of the Act was sustained, as it claimed the plaintiff was its statutory employee. Finding that the employer's attempt to achieve a double avoidance of liability was inimical to the purpose of the Act (which is to provide the exclusive remedy for injured employees), the Court of Appeals stated that the focus should be on the estoppel effect of the employer's conduct in the preceding common law tort action, and therefore, the employer could not use inconsistent positions to deprive the claimant of a judicial forum for his claim.

Sections 65.2-706.1 and 8.01-420.5 and Ragsdale make it imperative that employers, insurance carriers, and defense attorneys decide early whether a case will be accepted as a workers' compensation claim in order to avoid possible liability in a third-party suit or if contributory negligence or assumption of the risk might serve to defeat a common law action if brought by the injured person. Frequently, employers have different insurance carriers for workers' compensation and general liability coverages; therefore, a defense attorney may have to negotiate with different competing interests to make an intelligent, sensible decision that best protects the client's interests.

A personal injury suit can be dismissed in its entirety under the exclusivity provisions of the Act if the injured party was performing workrelated duties at the time of the injury or was injured by a fellow employee. The issue is whether the activities engaged in by the injured party when he or she was injured were part of the trade, business, or occupation of the defendant. ¹⁰ The Act limits monetary benefits to a specific weekly amount based on the injured person's average weekly wage, and there is no award for pain and suffering. The Act, therefore, limits the employer's liability to a fixed amount, unlike the personal injury arena where the amount of damages is possibly much greater. After a careful analysis, the interests of the defendant may be best served by seeing that the injured worker promptly receives workers' compensation benefits. To...