Written by Joseph Smith, Esq.
Edited by Rachel Riordan, Esq.
When an employee is assaulted at work, there are several factors to consider in assessing whether the assault “arises out of” the employment. Assault cases are tricky to defend due to the subjective nature of why a person is attacked. Further, the issue is compounded when the assailant is not available to testify regarding the motive. Recently, KPM’s own Bob McAdam successfully argued to the Full Commission that “why” an assailant attacks a claimant is the most important factor to consider regardless of whether motive is known.
In King v. DTH Contract Services, Inc., JCN VA00001225281 (Aug. 8, 2019), the claimant was injured after being assaulted by a former co-worker. The claimant worked as an attendant at a rest station on I-66 near Manassas, Virginia during a night shift. His duties included cleaning trashcans, bathrooms, and the parking lot. When not attending to his duties, he was required to remain in a locked office and make calls to VDOT every hour to confirm his well-being. On the date of the assault, the claimant was returning to the office when he was stabbed multiple times with a screwdriver. The assailant was identified as a former co-worker who had resigned in 2015. The co-worker ultimately committed suicide without ever explaining his motive for the attack.
The only disputed issue in the case was whether the assault “arose out” of the claimant’s employment. It is well-settled in Virginia that a physical assault can ‘arise out of” the employment when it is the result of an actual risk arising out of the employment. Reamer v. Nat’l Serv. Indus., 237 Va. 466, 470 (1989). To establish that an assault is compensable, the claimant must prove that the assault was the result of the peculiar character of the claimant’s job or because of the special liability to assault associated with the environment in which he must work. Roberson v. Whetsell, 21 Va. App. 268, 271 (1995).
To support his claim, the claimant cited the employer’s safety procedures, such as the call to VDOT and the requirement to remain in a locked office, as evidence of an increased risk of assault unique to his employment. He also introduced evidence of calls to the police from rest areas in Virginia and a study by the state legislature regarding crime at rest areas, neither of which showed an increased risk of violence compared to the general public. Moreover, a Virginia State Police officer testified that that he was unable to confirm that crime was more likely to occur at a rest area or confirm any other violent crimes were committed against rest area employees.
The Commission found that none of the evidence submitted established that the claimant was exposed to a greater risk of violent crime at the rest area. The Commission declined to hold that the employer’s safety precautions alone were enough to find that the work environment exposed the claimant to a greater risk of violence. Even the claimant himself, who had worked that that rest area for several years, did not recall any violent crime in the area prior to his assault. The Commission noted that the claimant’s job did not require him to handle money and he was not responsible for any task that would increase the likelihood of assault. Overall, the Commission held that the claimant failed to establish that his assault was the result of the peculiar nature of his employment or that he was a heightened risk of assault due to his work environment. The claimant was unable to establish why the assault occurred, and therefore it was unexplained and did not arise out of his employment.
This case provides an important roadmap for defending assault cases without facts to establish the motive for an assault on an employee. When assessing whether the peculiar nature of job increased the likelihood of violence against an employee, employers will not be punished for instituting safety measures for protecting their employees. If the claimant argues that the area where the claimant was working was a high crime area, he will have to provide significant evidence to support his position that the area subjected him to a higher risk of violent crime versus the general public.
If you need any assistance in evaluating assault claims, our workers’ compensation team is always ready to answers your questions regarding this complicated area of the law.