NEWS AND VIEWS ON APPELLATE MATTERS
The workers’ compensation system resulted from a “Grand Bargain” between
employees and employers. One aspect of this bargain is that an employee’s negligence
leading to injury should not bar the employee’s workers’ compensation claim.
Notwithstanding this fundamental principle, an employee’s mere negligence can thwart a
workers’ compensation award.
In Layne v. Crist Electrical Contractor, Inc., 64 Va. App. 342, 768 S.E.2d 261
(2015), the Court of Appeals addressed the case of an employee who was injured while
installing electrical conduit inside a building from a scissor lift. The employer’s “lockout
tagout” rule required the employee to render a “bridge crane” inoperable before using the
lift. The evidence showed that the employee knew of the rule and had followed it the
morning of the day of the accident. Later that morning, however, the employee used the
lift without disabling the crane. The crane struck the lift, and both it and the employee fell
to the floor. The employee suffered suffered brain damage and was unable to testify in
support of his workers’ compensation claim.
By statute, Virginia bars a workers’ compensation award for injury arising from
“The employee’s willful breach of any reasonable rule . . . adopted by the employer and
brought, prior to the accident, to the knowledge of the employee.” An employer relying on
this statute has the burden of proof. The Workers’ Compensation Commission found that
the Layne employer had carried its burden and thus denied the employee’s claim.
On appeal, the Court of Appeals discussed (i) a 1934 Supreme Court case which
requires an employer to prove that an employee, “knowing the rule, . . . intentionally
performed the forbidden act” and (ii) a 2011 Supreme Court case which defines the
adverb “intentionally” as “To do something purposely and not accidentally.” The Court of
Appeals explained its affirmance of the Commission’s decision as follows:
Based on the stark difference between claimant’s past conduct complying with employer’s workplace safety rule and the evidence of claimant’s clear disregard of all of the components of this same workplace safety rule directly prior to the accident, the full commission could reasonably infer that claimant deliberately decided not to lock out the bridge crane before beginning work on the lift — an action that was forbidden by employer.
Layne is just one example of decisions that cause enduring consternation in
lawyers for workers’ compensation claimants. In Layne, the “forbidden conduct” was
using the scissor lift without disabling the bridge crane. There was no direct evidence of
the employee’s state of mind. It may be assumed for the sake of argument that the
employer’s circumstantial evidence supported the conclusion that the employee
“purposely and not accidentally” engaged in the forbidden conduct. However, the very
same circumstantial evidence just as strongly supported the conclusion that the employee
simply forgot to disable the crane. If a party with the burden of proof on an issue presents
evidence in equipoise on the issue, the party has failed to carry its burden.
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