Whether an assault upon an employee is compensable depends on a variety of factors. The initial inquiry to be made is whether it falls under the definition of a compensable injury by accident. To be compensable, an injury by accident must arise out of and in the course of employment. Va. Code § 65.2-101; County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989). The claimant bears the burden of proving his injury arose out of his employment. Marketing Profiles, Inc. v. Hill, 17 Va. App. 431, 433, 437 S.E.2d 727, 729 (1993). The phrase “arising out of” refers to the origin or cause of the injury. Johnson, 237 Va. at 183, 376 S.E.2d at 74; Marion Correctional Ctr. v. Henderson, 20 Va. App. 477, 479, 458 S.E.2d 301, 303 (1995). An injury arises out of the employment where there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and resulting injury. Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938).
In Virginia, the “actual risk” test is used to determine whether an injury arises out of the employment. Hill City Trucking, Inc. v. Christian, 238 Va. 735, 739, 385 S.E.2d 377, 379 (1989)( holding that a truck driver’s injuries sustained during a robbery did not arise out of his employment as an over-the-road truck driver where there was no evidence establishing a nexus between the criminal act and his employment.) “An accident arises out of the employment if a causal connection is established between the employee’s injury and the conditions under which the employer required the work to be performed. The causative danger must be peculiar to the work and not common to the neighborhood.” Roberson v. Whetsell, 21 Va. App. 268, 271, 463 S.E.2d 681, 682 (1995). “The arising out of test excludes any injury which comes from a hazard to which the employee would have been equally exposed apart from the employment. The causative danger must be peculiar to the work, incidental to the character of the business, and not independent of the master-servant relationship.” Chesterfield v. Johnson, 237 Va. 180, 183-84, 376 S.E.2d 73, 75 (1989)(quoting, United Parcels Serv. v. Fetterman, 230 Va. 257, 258-59, 336 S.E.2d 892, 893 (1985).
In Liberty Mut. Ins. Corp. v. Herndon, 59 Va. App. 544, 559, 721 S.E.2d 32, 39 (2012), the Court of Appeals instructed that, “[t]he key focus is not the relationship between the injury and its cause but rather the relationship between the injury and the employment.” Id. 59 Va. App. at 560, 721 S.E.2d at 40 (emphasis added). In reaching this decision, the Court discussed the actual risk test, noting that “[w]here a claimant encounters a causative danger that the public might also expect to be exposed to and is injured as a result, the claimant can recover so long as he encountered the danger as a part of his work responsibilities.”
Thus, in Virginia “injuries which result from a willful and intentional assault are compensable, SO LONG as the assault is directed against the claimant as an employee or because of his employment.” Farmers Mfg. Co. v. Warfel, 144 Va. 98, 104, 131 S.E. 240, 241 (1926). In order to prevail, there must be a showing that the probability of assault was augmented by the peculiar character of the claimant’s employment or the special liability to assault associated with the environment in which he must work. Robertson v. Whetsell, 21 Va. App. 268, 463 S.E.2d 681 (1995). Said another way, the Claimant has the burden to establish by a preponderance of the evidence that the assault occurred because of his status as an employee, i.e. that it was a risk of his employment. The Court held in Robinson, that those jobs which are likely to pose a special risk of assault are those that involve working or traveling through dangerous areas. Id. Additionally, the Court in R&T Investments v. Johns, 228 Va. 249, 253, 321 S.E.2d 287, 289 (1984) cited Professor Larson with respect to those occupations which are more likely to have a special risk of assault and increased likelihood of robbery are those jobs that involve carrying money or that entail the handling of money. (1A. Larson, The Law of Workers’ Compensation Section 11.11(a) at 3-161 (1984).
If an assault is personal to the employee and not directed against him as an employee or because of his employment, the resulting injury does NOT arise out of the employment. Hilton v. Martin, 275 Va. 176, 180-81, 654 S.E.2d 572, 574 (2008), quoting Richmond Newspapers v. Hazelwood, 249 Va. 369, 373, 457 S.E.2d 56, 58 (1995). For example, a personal quarrel with another co-worker or third party is not compensable if the argument is based upon personal reasons and not attributed to the employment.
In Ghazarian v. Bob Windsor Construction, L.L.C., the Commission held that the Claimant failed to establish that an assault, or, more specifically, an armed robbery, which took place while the Claimant was conducting interior demolition of a house prior to a renovation, did not arise out of the employment as there was no evidence to link the assault to the character of the business or the environment in which the Claimant worked. The Commission further declined to believe that an open door in the residence was an invitation to the robber such to make it a risk peculiar to the Claimant’s employment. (JCN: VA00001014518; Opinion April 8, 2016).
Additionally, any injuries sustained where a Claimant is the aggressor are not compensable because the Claimant, acting as the aggressor, is not acting within the scope of his employment, nor is he promoting the interests of the employer. Thus, for an injury by assault to be compensable, a claimant must show that the injured employee was not responsible for the assault.
In Campbell v. Campbell’s Ceramic Supply, Inc., the Commission held that even where the Claimant failed to be the first to become physically aggressive, the claim was still barred as the Claimant had started the disagreement, escalated the situation, and actively participated as an aggressor once the altercation began. (VWC: 222-30-83; February 8, 2006.) The Commission also explained that “if a claimant [is] an aggressor, instigator, or willing participant, he will be denied compensation.” (citing, Dean v. Permatile, VWC File No. 163-44-41; July 20, 1994). The Commission also cited Rosario v. Ransit Management Co., for the proposition that a claim will also be denied when the evidence is inconclusive as to who was the aggressor. (VWC File No. 206-46-25; September 20, 2002)
Aside from the physical altercations which are addressed above, there are also those cases that involve sexual assault. Virginia Code Section 65.2-301 provides that if an employee is sexually assaulted in the course of employment and promptly reports the assault to appropriate law enforcement authorities, the assault is covered by the Act IF there is a showing that the employment substantially increased the risk of the assault.
What are the consequences for a non-compensable assault?
For those cases in which the employee is unable to substantiate a claim under the Workers’ Compensation Act, the injured worker is not barred by the exclusivity provision and is free to sue a co-worker or the employer in the civil arena. Additionally, a special exception has been carved out for those cases involving sexual assault; in those situations, the injured worker is allowed to file an action at law against the attacker even if the attacker is an employer or fellow employee. However, the injured worker in that circumstance would still only be allowed one recovery and either a credit or payment would be allowed for any benefits paid under the workers’ compensation claim. So in analyzing a claim, it is prudent to determine the potential exposure by analyzing what the alternative claim may look like.