Claimant, You’ve Got Some Explaining to Do: Unexplained Accidents and the “Arising Out Of” Threshold
It’s no news that to qualify for workers’ compensation benefits in Virginia, an employee’s injuries must result from an event “arising out of” and “in the course of” the employment.
It is important to keep in mind that each phrase contains distinct elements that a claimant must prove before compensation will be awarded.
“In the course of” typically refers to the time and place in which the claimant is working or performing the activity he or she was hired to perform.
“Arising out of” is more nebulous, as it refers to the origin or cause of the injury. Specifically, Virginia applies an “actual risk” test when determining whether accidents arise out of the employment. Under this test, the general rule is that a claimant’s injury arises out of the employment if work creates a greater risk than the general public.
To satisfy this “actual risk” test, the Commission has consistently held that claimants must adequately explain how the accident occurred by providing a “critical link” between the employment duties and the resulting injuries. The Court of Appeals recently provided more guidance on the explanation necessary to establish this “critical link” in Sorour v. Avalon Transp., LLC, No. 0692-19-4, 2019 Va. App. LEXIS 275 (Ct. App. Nov. 26, 2019).
In Sorour, a limousine driver was driving a company vehicle on his way to his employer’s office. As he was exiting a freeway, the driver hit a guardrail “at about 10-15 miles per hour.” At the hearing, the driver explained that the accident occurred because he drove too close to the guardrail when taking the exit ramp and failed to stay in his proper lane. The driver argued that the Commission incorrectly classified his case as an “unexplained accident” because it appeared obvious to him that he provided a clear explanation of how the accident occurred.
The Court of Appeals, however, affirmed the findings of the lower courts, and held that this was an “unexplained accident” and that the limousine driver’s explanation of the accident did not satisfy the “arising out of” prong. The mere explanation that the driver was operating a company vehicle en route to the company’s office at the request of his manager was not sufficient. The Court held “the causative danger must be peculiar to the work and not common to the neighborhood.” The driver was able to show that the accident occurred “in the course of” his employment by showing that he was driving the company vehicle at the time of the accident. However, the driver failed to show how the accident arose out of his employment because he failed to prove any nexus, or “critical link” between his actual job duties and the accident.
The Court of Appeals dealt with a similar issue in Norris v. ETEC Mech. Corp., 69 Va. App. 591 (2018). The claimant in that case fell asleep behind the wheel of a company vehicle while driving home at the end of his work day, which resulted in an accident. The claimant explained that he generally got tired in the evenings, and he was unsure why he fell asleep at the wheel on the date of the accident. Further, he characterized his work week leading up to the accident as a “normal week” that “wasn’t that bad, actually.” The claimant argued on appeal that his accident arose out of his employment “because he was where he was expected to be – driving himself…home, while reasonably fulfilling the duties of employment.”
Similarly to Sourer, the Court of Appeals in Norris held that the claimant failed to establish the “critical link” between his employment and the resulting injury. The majority reasoned the mere explanation that the claimant fell asleep while driving a company vehicle was insufficient. The claimant never related his drowsiness to his employment and thus failed to satisfy the “arising out of” threshold.
This line of cases reminds us that an accident occurring “in the course of” a claimant’s employment can still be deemed non-compensable if the claimant fails to satisfy the “arising out of” prong. Further, it is important to keep in mind that a claimant’s seemingly clear narrative of how an accident occurred can still be categorized as an “unexplained accident” and thus fail to meet the required threshold. The claimant must show that the employment activity exposed him or her to a risk of injury to an extent to which members of the general public are not ordinarily exposed. Therefore, when analyzing original compensability, make sure to examine whether the claimant has adequately explained his or her accident by providing that “critical link” between his or her employment duties and the resulting work accident.
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