Presentation is loading. Please wait.

Presentation is loading. Please wait.

Advanced Virginia Workers’ Compensation Issues October 8, 2014 Raymond L. Hogge, Jr. Hogge Law 500 E. Plume Street Norfolk, Virginia 20510 (757) 961-5400.

Similar presentations


Presentation on theme: "Advanced Virginia Workers’ Compensation Issues October 8, 2014 Raymond L. Hogge, Jr. Hogge Law 500 E. Plume Street Norfolk, Virginia 20510 (757) 961-5400."— Presentation transcript:

1 Advanced Virginia Workers’ Compensation Issues October 8, 2014 Raymond L. Hogge, Jr. Hogge Law 500 E. Plume Street Norfolk, Virginia (757)

2 Advanced Workers’ Compensation Raymond L. Hogge, Jr. This presentation is intended solely for informational purposes, and is not offered as legal advice. To receive a copy of this presentation, or for assistance in Virginia workers’ compensation matters, please contact the author.

3 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Exclusive Remedy Doctrine Virginia Code § Rights and remedies under Virginia Workers’ Compensation Act are exclusive rights and remedies of worker against employer for injury, illness, or death covered by the Act. Sometimes called the “workers’ compensation bar.”

4 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Exclusive Remedy Doctrine Worker cannot bring a common law action against employer for covered injury by accident arising out of and in the course of the employment. – Lawsuit for employer negligence barred. – Lawsuit for intentional tort barred.

5 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Exclusive Remedy Doctrine Procedures for asserting exclusivity of workers’ compensation as a bar to common law action: – Virginia courts: plea in bar. – Federal courts: motion to dismiss or motion for summary judgment.

6 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Exclusive Remedy Doctrine Compensability does not determine exclusivity – Giordano v. McBar Industries, Inc., 284 Va. 259 (2012): If injury is by accident arising out of and in the course of employment, then Act applies even if defense precludes recovery.

7 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Exclusive Remedy Doctrine Assault by Coworker – Coworker assault is an “accident” if it was the result of an actual risk arising out of the employment.

8 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Exclusive Remedy Doctrine Assault by Coworker – Coworker assault arises “in the course of” the employment if it occurs within the period of employment at a place where, from the nature of the work, the employee may be reasonably fulfilling the duties of the employment or doing something reasonably incidental to the employment.

9 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Exclusive Remedy Doctrine Assault by Coworker – Coworker assault arises “out of” the employment if it meets the “actual risk” test (not the “positional risk” test): actual risk exists if there is a causal connection between the worker’s injury and the conditions under which the employer requires the work to be done, or if the conditions under which the employer requires the work to be done are a contributing cause of the injury.

10 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Exclusive Remedy Doctrine Assault by Coworker – Coworker assault does not arise “out of” the employment if it is personal to the worker and not directed against the worker as an employee or because of the worker’s employment.

11 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Exclusive Remedy Doctrine Assault by Coworker – Example: Butler v. Southern States Cooperative, Inc., 270 Va. 459 (2005). Two coworkers delivering goods for employer. Coworker 1 forcibly tried to kiss coworker 2. Coworker 2 sued employer in tort for assault by coworker 1. Tort action not barred by exclusive remedy doctrine because assault did not arise out of the employment; it was the result of personal attraction and employment was not a contributing cause.

12 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Exclusive Remedy Doctrine Assault by Coworker – Example: Hilton v. Martin, 275 Va. 176 (2008). While working together on duty, EMT 1 engaged on horseplay with EMT 2 and shocked EMT 2 with a charged defribillator, unintentionally causing death of EMT 2. Tort action by estate of EMT 2 against employer not barred by exclusive remedy doctrine because actions of EMT 1 were purely personal to EMT 2 and inappropriate use of employer equipment did not establish causal link to duties of employment.

13 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Exclusive Remedy Doctrine Assault by Coworker – In Hilton v. Martin, 275 Va. 176 (2008), Virginia Supreme Court stated: “It is immaterial whether the assailant’s subjective motive is playful, amorous, vindictive, or hostile. An injury resulting from an assault arises out of the injured person’s employment when it is directed at the victim as an employee.”

14 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Exclusive Remedy Doctrine “Innocent Horseplay” Doctrine – Injury caused by “innocent horseplay” by coworker is accident arising out of and in course of employment. – Hilton v. Martin caused debate about whether innocent horseplay doctrine was abrogated, but Simms v. Ruby Tuesday, 281 Va. 114 (2011), held that Hilton v. Martin did not have that effect.

15 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Exclusive Remedy Doctrine “Innocent Horseplay” Doctrine – Example: Simms v. Ruby Tuesday, 281 Va. 114 (2011). Coworkers friends of claimant threw ice at him at work; claimant dislocated shoulder; injury arose out of the employment. Virginia Supreme Court adopts the “innocent horseplay” doctrine - injury to a non-participating innocent victim resulting from playful or joking action of coworker is an actual risk of employment because the workplace creates the situation that results in the injury.

16 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Exclusive Remedy Doctrine “Innocent Horseplay” Doctrine – Doctrine applies only to “a non-participating innocent victim.” Query: If the victim participates in the horseplay, does the doctrine apply? Query: If victim participates in the horseplay, can the employer assert as a defense that the victim’s injury resulted from his deliberate violation of an employer safety rule? What is “innocent?”

17 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Exclusive Remedy Doctrine Strangers to the Business – Exclusive remedy doctrine does not bar injured worker from suing a “stranger to the business” who causes his injury.

18 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Exclusive Remedy Doctrine Strangers to the Business – Test is whether, at the time of the accident, the party injuring the worker was performing work which was part of the trade, business or occupation of the worker’s employer. Compare: Bosher v. Jamerson, 207 Va. 539 (1966). Giordano v. McBar Industries, Inc., 284 Va. 259 (2012).

19 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Exclusive Remedy Doctrine Strangers to the Business – Bosher v. Jamerson, 207 Va. 539 (1966): Claimant employed by contractor; injured by subcontractor employee while sub’s employee was laying sand for foundation of project under direction of contractor. Exclusive remedy doctrine barred negligence action by claimant against subcontractor because sub’s employee was performing part of contractor’s work at time of injury.

20 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Exclusive Remedy Doctrine Strangers to the Business – Giordano v. McBar Industries, Inc., 284 Va. 259 (2012): Giordano employed by construction contractor erecting building; killed when building collapsed under weight of drywall shipment unloaded onto building by supplier of drywall subcontractor. Exclusive remedy doctrine did not bar negligence action against supplier, because delivery of drywall was not part of contruction business.

21 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Willful Misconduct Defenses Willful misconduct defenses under Va. Code § – Can provide defenses to otherwise compensable claims. – More than one defense may apply in a particular situation. – All potentially applicable defenses should be asserted.

22 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Willful Misconduct Defenses Willful misconduct defense under Va. Code § (A)(1): No compensation shall be awarded for an injury caused by the employee’s “willful misconduct” or “intentional self-inflicted injury.”

23 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Willful Misconduct Defenses Willful misconduct defense under Va. Code § (A)(2): No compensation shall be awarded for an injury caused by the employee’s “attempt to injure another.”

24 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Willful Misconduct Defenses Willful misconduct defense under Va. Code § (A)(3): No compensation shall be awarded for an injury caused by the employee’s “intoxication.”

25 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Willful Misconduct Defenses Willful misconduct defense under Va. Code § (A)(4): No compensation shall be awarded for an injury caused by the employee’s “willful failure to or refusal to use a safety appliance or perform a duty required by statute.”

26 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Willful Misconduct Defenses Willful misconduct defense under Va. Code § (A)(5): No compensation shall be awarded for an injury caused by the employee’s “willful breach of any reasonable rule or regulation adopted by the employer and brought, prior to the accident, to the knowledge of the employee.”

27 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Willful Misconduct Defenses Willful misconduct defense under Va. Code § (A)(6): No compensation shall be awarded for an injury caused by the employee’s “use of a nonprescribed controlled substance identified as such in Chapter 34 (§ et seq.) of Title 54.”

28 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Willful Misconduct Defenses Virginia Worker’s Compensation Rule 1.10 – Employer must give written notice of intent to assert a statutory willful misconduct defense, and statement of facts supporting he defense, within 15 days prior to hearing. – If employer fails to provide the required notice then the right to assert the defense may be waived.

29 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Willful Misconduct Defenses The employer has the burden of proof on each of the willful misconduct defenses. – Employer must able to prove existence and communication of relevant employer policies and safety rules. – Employer must collect and preserve evidence necessary to prove defenses.

30 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Intoxication Defenses Worker is presumed to have been intoxicated at time of injury if at time of injury the blood alcohol content of worker was equal to or greater than the maximum allowed for operating motor vehicle under Virginia law. Worker may overcome the presumption by clear and convincing evidence. Presumption does not apply if worker dies as a result of the injury.

31 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Intoxication Defenses Employee is presumed to have been intoxicated at time of injury if at time of injury employee had a positive drug test by a certified laboratory. Employee may overcome the presumption by clear and convincing evidence. Presumption does not apply if employee dies as a result of his injuries.

32 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Intoxication Defenses Post-Accident Testing – In order to ensure availability of intoxication presumptions, employers should adopt and enforce a written policy requiring drug and alcohol tests immediately after a workplace injury. – Testing facilities should be identified in advance. – Supervisors should receive regular training on procedures for post-accident testing.

33 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Intoxication Defenses Causation – Employer is required to prove more than that worker was intoxicated; must prove a causal connection between intoxication and injury. – Standard of proof is preponderance of the evidence.

34 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Intoxication Defenses Causation – Employer is required to prove intoxication was a contributing cause of the injury; not required to prove intoxication was the sole cause.

35 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Intoxication Defenses Causation – Closeness in time between alcohol / drug use and accident is not alone sufficient to establish causation. – Example: Norvak v. Michael B. Hill Construction Co., VWC File No (2009): “The statement that the claimant smoked marijuana ‘close in time’ to the accident is insufficient to determine when he used it.”

36 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Intoxication Defenses Advanced Intoxication Defense – Defense established by court in American Safety Razor v. Hunter, 2 Va. App. 258 (1986). – Not a statutory defense.

37 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Intoxication Defenses Advanced Intoxication Defense – “An employee may abandon his employment by reaching an advanced state of intoxication which renders the employee incapable of performing his duties..... A severely intoxicated employee has removed himself from the scope of his employment. Any injuries suffered thereafter are not in the course of the employment.”

38 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Intoxication Defenses Advanced Intoxication Defense – Defense does not apply if intoxicated employee continues to perform his job duties. – Employer should immediately remove employee from active duty and conduct drug / alcohol testing upon suspicion of intoxication, and should not permit employee to resume active duty until non-intoxication can be confirmed.

39 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Self-Inflicted Injury Defense Suicide - a question of causation – Food Distributors and Century Indemnity Co. v. Estate of Ball, 24 Va. App. 692 (1997): Compensable shoulder injury leading to chronic pain, leading to depression, leading to suicide. Suicide held compensable.

40 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Self-Inflicted Injury Defense Suicide - a question of causation – Amoco Foam Products v. Johnson, 257 Va. 29 (1999): Supreme Court holds that consequence of a compensable consequence is not compensable. Worker suffered compensable left ankle injury; after left ankle surgery, left ankle gave way resulting in right knee injury; right knee injury was compensable consequence of left ankle injury; the worker fell again because of right knee, causing new right knee injury; new injury was not compensable.

41 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Self-Inflicted Defense Suicide - a question of causation – John Paul Plastering v. Johnson, 265 Va. 237 (2003): Worker suffered compensable injury to wrist and back, which caused depression. Depression caused structural changes in brain, described as brain injury. Worker claimed total disability resulting from brain injury. Brain injury not compensable because a consequence of a consequence.

42 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Self-Inflicted Injury Defense Suicide - a question of causation – Farmington Country Club, Inc. v. Marshall, 47 Va. App. 15 (2005): Va. Ct. App. announces Food Distributors has been implicitly overruled by Amoco Foam and John Paul Plastering.

43 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Self-Inflicted Injury Defense Suicide - a question of causation – Now: Compensability of suicide is theoretically possible, but establishing a direct causal connection between compensable injury and suicide, without depression as an intermediate cause, is difficult.

44 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Safety Rule / Appliance Defense 4 Elements of Defense: (1) the safety rule was reasonable; (2) the rule was known to the worker; (3) the rule was for the worker’s benefit; and (4)the worker intentionally undertook the forbidden act.

45 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Safety Rule / Appliance Defense Employer must show that the worker, knowing the rule, intentionally performed the forbidden act. It is not necessary for employer to prove the worker purposefully determined to violate the rule.

46 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Safety Rule / Appliance Defense Proof of negligence, or even gross negligence, is not sufficient to establish the defense. Example: Pitt v. Shackleford’s Restaurant, 2012 Va. App. Lexis 94 (Va. Ct. App. 2012): “Evidence of a hazardous act involving obvious danger, without more, is insufficient to bar recovery under the Act.”

47 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Safety Rule / Appliance Defense Employers wishing to assert this defense should ensure that all safety equipment used by the worker is operating properly. Example: Buzzo v. Woodridge Trucking, Inc., 17 Va. App. 327 (1993) - Employer of worker injured when driving truck at excessive speed could not prevail on this defense because speedometer in truck was not operating.

48 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Safety Rule / Appliance Defense Worker may rebut this defense by showing that there was a valid reason for his inability to obey the rule.

49 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Safety Rule / Appliance Defense Worker may rebut this defense by showing the safety rule was not kept alive by “bona fide enforcement.” “Proof of a pattern or practice of failing to discipline employees guilty of willful violations of a safety rule defeats the defense... when such violations occur under circumstances charging the employer with knowledge or acquiescence.”

50 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Safety Rule / Appliance Defense Bona fide enforcement of safety rules does not always require disciplinary action; in some circumstances training or other non-punitive corrective action can be sufficient.

51 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Safety Rule / Appliance Defense Possible unresolved issue: Does employer bear burden of proving strict enforcement of safety rule? Or does worker bear burden of proving lack of strict enforcement as rebuttal to the defense? Ether way, employers should be prepared to prove strict enforcement.

52 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Wrongful Discharge Prohibition Under Virginia Code § : “No employer or person shall discharge an employee solely because the employee intends to file or has filed a claim under this title or has testified or is about to testify in any proceeding under this title. “

53 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Wrongful Discharge Example: Charlton v. Craddock-Terry Shoe Corp., 235 Va. 485 (1988): Employer found liable where employed fired worker because worker refused to sign waiver of workers’ compensation claim.

54 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Wrongful Discharge Virginia circuit courts have jurisdiction over claims under the statute.

55 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Wrongful Discharge Statute appears to impose individual liability. – Statutes provides “no employer or person” shall discharge the employee in violation of the statute. – Circuit court jurisdiction under statute is over employer and “the person who allegedly discharged the employee.”

56 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Wrongful Discharge Statute of Limitations: Virginia Code § (2 years).

57 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Wrongful Discharge Statute authorized court to issue injunctions to restrain violations.

58 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Wrongful Discharge Statute authorized court to “order appropriate relief, including actual damages.”

59 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Wrongful Discharge Statute authorized court to award back pay plus interest. Statute does not expressly authorize front pay.

60 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Wrongful Discharge Statute authorized court to award attorney fees to successful claimants. No provision for award of attorney fees to prevailing employer.

61 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Wrongful Discharge Statute authorized court to order rehiring or reinstatement.

62 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Wrongful Discharge Liability under the statute is difficult to establish because it prohibits discharge “solely” because the worker has engaged in the protected activity.

63 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Wrongful Discharge Employer motivation behind discharge is central question. Employer motivation usually established by circumstantial rather than direct evidence.

64 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Wrongful Discharge Plaintiff may establish prima facie case by circumstantial as well as direct evidence. In Jordan v. Clay’s Rest Home, 253 Va. 185 (1997), Virginia Supreme Court has rejected use of McDonald Douglas v. Green burden shifting in actions under the statute.

65 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Wrongful Discharge Worker must prove more than just close proximity in time between filing claim and discharge.

66 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Wrongful Discharge The discharge of a person who has filed a fraudulent claim is not a violation of this statute.

67 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Wrongful Discharge The statute provides the exclusive remedy for retaliation for filing a worker’s compensation claim. Retaliation for filing a worker’s compensation claim cannot be asserted as a claim for discharge in violation of public policy.

68 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Wrongful Discharge Unresolved issue: availability of punitive damages.

69 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Wrongful Discharge Unresolved issue: availability of jury trial.

70 Advanced Workers’ Compensation Raymond L. Hogge, Jr. Hogge Law advises and represents employers across Virginia in all aspects of labor and employment law, including workers’ compensation. Hogge Law welcomes the opportunity to assist employers and carriers in preventing and responding to workers’ compensation claims. For information about our firm, please visit our website HoggeLaw.com. For additional resources for Virginia employers, pleas visit our website VirginiaLaborLaw.com.


Download ppt "Advanced Virginia Workers’ Compensation Issues October 8, 2014 Raymond L. Hogge, Jr. Hogge Law 500 E. Plume Street Norfolk, Virginia 20510 (757) 961-5400."

Similar presentations


Ads by Google