I would like to discuss the concept of negligence and where that concept fits into the Workers’ Compensation scheme in Virginia. First, we must define “negligence.” In Virginia, the courts use a “reasonable person” standard. “Negligence is the failure to use ordinary care. Ordinary care is the care a reasonable person would have used under the circumstances ….” Virginia Model Jury Instructions, No. 4.00. Under Virginia’s tort law, the plaintiff must prove that the defendant was negligent in his/her actions, that such negligence was a proximate cause of injury to the plaintiff, and that the plaintiff him/her self was not negligent in any significant way that contributed to the causing of the accident (contributory negligence). However, Virginia’s workers’ compensation scheme did not grow out of this common-law tradition the way tort law did. Therefore, negligence plays a much different role in comp than it does in tort.
Prior to the Commonwealth’s adoption of its statutory workers’ compensation scheme, negligence was a large hurdle that the injured worker had to overcome. Not only did the worker need to prove that the employer was negligent in causing the accident, he/she had to prove that the worker him/her self was not negligent. Also, under the fellow- servant doctrine, the worker had to prove that none of his/her co-employees were negligent which contributed to the accident. If you think about it, such cases were rare in the employment situation. Proving that the employer was negligent would be hard enough without also having to prove that neither the worker nor any co-worker was negligent. Consequently, the concept of negligence was one of the keys to the “Grand Bargain” which led the various states to adopt workers’ compensation schemes in the early 20th century. In exchange for renouncing their right to receive damages for pain and suffering, workers were excused from having to deal with negligence in comp cases.
Negligence by an employer or an employee is not a factor in determining entitlement to benefits under the Workers’ Compensation Act. Shumate v. Marion Diner,70 O.I.C.100 (1991). Therefore, the claimant need not show that the employer was negligent in failing to provide a safe workplace since that is not necessary for an award under the Act. Id. Likewise, a claimant’s negligence is not a bar to recovery. Sirk v. M.G. Apartments, 63 O.I.C. 307 (1984). Although the claimant chose a dangerous means to reach his destination, that choice does not defeat his claim. Id. If the employee did not foresee the result of his deliberate act, even though it was an act of gross negligence or stupidity, the result should be regarded as accidental. Tyree v. Commonwealth, 164 Va. 218, 179 S.E.2d 297 (1935); Burkhardt v. Whippich, 55 O.I.C. 57 (1973). While the claimant may be guilty of negligence, such action is not a bar to his claim if his action could be considered poor judgment. Brown v. Powell’s Paint Co., 68 O.I.C. 113 (1989). (However, claimant was denied compensation because his blood alcohol level of 0.26 impaired his judgment. Id.)
Virginia’s Workers’ Compensation Act uses negligence as a threat to employers and their high-placed officers who choose not participate in the compensation system. Virginia Code section 65.2-300(A) provides that all employers and employees in Virginia are presumed to accept the provisions of the Act regarding claims for benefits. However, an executive officer of a business who files a claim against his/her employer and rejects coverage under the Act, shall proceed as at common law. The employer shall have the option to assert defenses of contributory negligence, negligence of a fellow servant, and assumption of the risk against the executive officer. Section 65.2-300(C). For employers who ignore the statutory mandate to obtain workers’ compensation insurance, and who face claims by injured employees, section 65.2-805(A) provides that the injured worker shall be entitled to proceed at common law (making pain and suffering damages available), but the employer shall not be permitted to assert the common-law defenses of contributory negligence, negligence of a fellow servant or assumption of the risk. Thus, the very basis of the “Grand Bargain” is lost.