Positional Risk v. Actual Risk – Which Policy Does Virginia Adhere to for Workers’ Compensation

For an injury at work to be compensable, the accident causing the injury must “arise out of” the employment.

Many states follow the “positional risk” doctrine. An accident arises from work so long as the employee is present (i.e., “positioned”) at work when the accident occurs.

Virginia follows the “actual risk” doctrine. The employment must subject the employee to the particular danger that brought about his or her injury. Stated another way, the employment must expose the employee to a heightened risk of the accident that causes the injury.

In Conner v. City of Danville, 70 Va. App. 192,826 S.E.2d 337 (2019), the claimant, a police officer, was interviewing a homicide suspect on a porch when a violent storm with wind and rain came on suddenly. The claimant decided to move from the porch to a different area. She slipped on wet grass and was injured. At her deposition, she agreed that she left the porch to get out of the weather.

Both a Deputy Commissioner and the full Commission (with one Commissioner dissenting) rejected the claimant’s request for a workers’ compensation award. On appeal, the Court of Appeals affirmed.

The Court of Appeals first agreed with the Commission majority’s finding that at the time of the accident the claimant had ceased and suspended her work-related tasks and was instead simply trying to get out of the rain. Thus, she failed to “establish that the conditions of her employment subjected her to the particular danger of slipping and almost falling on wet grass during a storm.”

The Court of Appeals next agreed with the Commission majority that an “Act of God” alone, and not some actual risk of employment, caused the claimant’s accident. The Court of Appeals agreed with the Commission’s statement that “‘this was not a situation where an employee’s employment required her to perform job duties in a hazardous weather situation

The claimant simply had no greater risk than anyone else who happened to be outside that day.'”

Finally, the Court of Appeals affirmed the Commission majority’s refusal to apply Va. Code § 65.2-301.1, which states as follows:”In situations where weather constitutes a particular risk of a public safety officer’s employment and where the public safety officer’s injury arose out of and in the course of his employment, . . . such injury shall be compensable under this title.” The Court of Appeals found as follows:”Because the requirements of the statute necessary for compensability are joined by the conjunctive word ‘and,’ the plain language of the statute clearly still requires the public safety officer to prove that her injuries ‘arose out of’ the employment . . . .”

In the past, the Supreme Court has often said that the Workers’ Compensation Act is remedial legislation which is entitled to a liberal interpretation in favor of claimants. In Conner, one searches in vain or any recognition — let alone application — of this principle.

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