When an “Injury by Accident” is not so Accidental

We all know the definition of a compensable injury is a “sudden and identifiable injury by accident arising out of and in the course of the employment.” Va. Code § 65.2-101 (emphasis added). However, it is easy to forget that our common understanding of the word “accident” can differ from the definition applied by the Commission in Workers’ Compensation matters. One such instance of this occurs when the injury in question is not “accidental,” but caused by an intentional act.

It is well-established pursuant to the Act that an employee’s intentional self-inflicted injury is not compensable. Va. Code § 65.2-306(A)(1); see, e.g., Anderson v. East Coast Fish & Scallop Co., 10 Va. App. 215, 391 S.E.2d 347 (1990); Wright v. Riptides Seafood, Inc., VWC File No. 236-34-71 (Apr. 7, 2010); Hall v. Planters Peanuts Div./Nabisco Brands, Inc., VWC File No. 150-39-45. However, a matter involving intentional injury inflicted by a third party warrants a very different analysis.

Decisions of the Commission and the courts over the years have made it clear that a willful or intentional assault upon on an employee by a co-worker or third party may constitute an “accident” within the meaning of the Act. See Cont’l Life Ins. Co. v. Gough, 161 Va. 755, 172 S.E. 264 (1934); see also Hopson v. Hungerford Coal Co., 187 Va. 299, 46 S.E.2d 392 (1948); A.N. Campbell & Co. v. Messenger, 171 Va. 374, 199 S.E. 511 (1938).

The complication faced in evaluating these types of claims arises in determining whether the assault arose out of the employment. There are slight distinctions in the case law depending upon whether the assailant is a co-worker, a customer, or even a contract killer. However, the most important factor in all of these cases is the assailant’s motivation.

Generally speaking, for an intentional assault to be a compensable accident, it must be shown that the employee was targeted as an employee or because of his employment. See Smithfield Packing Co. v. Carlton, 29 Va. App. 176, 510 S.E.2d 740 (1999). Alternatively, it must be shown that the probability of assault was augmented by the nature of the employee’s job or because of environment in which the employee works. See R&T Invs., Ltd. v. Johns, 228 Va. 249, 253, 321 S.E.2d 287, 289 (1984). In either situation, however, if the assailant’s motive is “purely personal lacking any nexus to the employee’s employment,” the attack could not have arisen of the employment. King v. DTH Contract Servs., Inc., 69 Va. App. 703, 715, 823 S.E.2d 6, 12 (2019) (emphasis added).

This standard places adjusters and litigants in the bizarre position of needing to divine the thoughts and motivations of these assailants. This can be particularly problematic when the assailant is unavailable or otherwise reserved about his motivations. In February, the Court of Appeals of Virginia addressed the difficulty inherent in this analysis in King v. DTH Contract Services, Inc. In King, the employee was randomly attacked by a former co-worker, who subsequently committed suicide before his motives could be ascertained. Id. at 707-09, 823 S.E.2d at 8-9.

The Commission ruled that because the employee previously knew the assailant, he could only establish that the assault arose out of the employment if he could adequately prove that the assailant’s motive was solely the employee’s job. Id. at 717, 823 S.E.2d at 13. Effectively, then, the Commission ruled that it did not need to consider whether the employment increased the employee’s risk of assault. Id. The Court of Appeals held that the Commission erred in doing so. Id.

Rather, the Court of Appeals ruled that where the assailant’s motive is unknowable, the Commission is not precluded from considering other factors to determine whether the attacks arose out of the employment. Id. at 717-18, 823 S.E.2d at 13.

This Opinion makes it clear that a wide range of factual situations can trigger Workers’ Compensation coverage in the event of an intentional assault. It is imperative to fully investigate, to the extent possible, any prior interactions between the assailant and employee before making compensability determinations in such instances. However, as shown by King, the mere fact that the two parties previously knew each other, without direct evidence of the assailant’s motivation, is not enough to determine that the resulting injuries are not compensable as “injuries by accident.”

Posted In: E-Blast