by KPMLAW | Feb 23, 2016 | KPMBlog, News, Uncategorized
Written by Jessica Gorman, Esq. Edited by Rachel Riordan, Esq. What additional injuries an employer and carrier may be responsible for under the compensable consequence doctrine or chain of causation rule You have an accepted accident for which an injured worker has injured his left ankle. While recuperating from surgery on his left ankle, his ankle gave way causing a right knee injury. Are you responsible for the right knee injury? The answer is yes. Subsequently, that right knee injury causes the injured worker to fall causing a new injury to the right knee. Are you responsible for that new knee injury? The answer may be no as a consequence of a compensable consequence, which is not covered under the Virginia Workers’ Compensation Act. In Virginia, the doctrine of compensable consequence “is well established and has been in existence for many years.” Williams Indus., v. Wagoner, 24 Va. App. 181, 186, 480 S.E.2d 788, 790 (1997). This doctrine provides the standard that “when a primary injury under the Workers’ Compensation Act is shown to have arisen out of the course of employment, every natural consequence that flows from the injury is compensable if it is a direct and natural result of a primary injury.” Leonard v. Arnold, 218 Va. 210, 237 S.E.2d 97 (1977). Specifically, any such secondary injury is related as it if occurred in the course of and arising out of the injured workers’ employment. Bartholow Drywall Co. v. Hill, 12 Va. App. 790, 794, 407 S.E.2d 1, 3 (1991). This doctrine is also known as the chain of causation rule and provides and states somewhat differently...
by KPMLAW | Jan 18, 2016 | KPMBlog, News, Uncategorized, Updates
What should an employer do when an employee announces plans to retire on a definite date? Get the employee a gold watch? Plan a luncheon? Maybe the best answer, at least from a workers’ compensation perspective, is to bid him adieu, immediately. A nightmarish situation can develop if an employee announces his retirement to be effective on a definite date in the future, and then gets injured on the job. This factual scenario was recently addressed by the Supreme Court of Virginia in McKeller v. Northrop Grumman Shipbuilding, Inc. , 2015 Va. Lexis 14. In McKellar, on April 1, 2010 the Claimant advised his employer that he was retiring effective May 1, 2010. On April 15, 2010 the Claimant sustained a compensable injury by accident. The Claimant was placed on restricted duty through the end of April. He retired on May 1, 2010. However, sometime after his retirement the Claimant was found to be totally disabled. The Claimant then filed a claim with the Virginia Workers’ Compensation Commission, seeking temporary total disability benefits. The Deputy Commissioner awarded compensation and medical benefits, finding that although the Claimant was retired his total incapacity entitled him to benefits. The Full Commission, in a 2-1 decision, affirmed the award of medical benefits but reversed the award of compensation, reasoning that the wage loss would have occurred regardless of his compensable injury. The Court of Appeals affirmed the decision from the Commission, concluding that the Claimant’s retirement, not his injury, caused his loss of compensation because the record was devoid of evidence that the Claimant sought or held income-producing employment after his retirement and...
by KPMLAW | Oct 17, 2015 | KPMBlog, News, Uncategorized
Written by Andrew Willis, Esq. Edited by Rachel Riordan, Esq. Whether a claimant suffered an “injury by accident” that arises out of and occurs in the course of employment usually takes an undue amount of time during a recorded statement. The factual variations are endless and the black letter law is often blurred, making it hard to know where to focus your questioning. Luckily, lack of timely notice is relatively straightforward and this defense is often neglected during recorded statements. In general, an injured worker needs to notify a supervisor of a work accident within 30 days. If an injured worker fails to give legally sufficient notice, that worker’s claim can be completely barred – even if they sustained a compensable “injury by accident.” In other words, lack of timely is a very powerful defense. It can give you a clear, reliable reason to deny an otherwise compensable claim. What follows are crucial questions to ask about notice during a recorded statement, along with a brief explanation of the law on notice. 1. Who Did You Tell? The Workers’ Compensation Act requires notice to the “employer” pursuant to §65.2-600. Of course, this means some specific person. The cases discuss the need to tell a “foreman,” “superior officer,” or “supervisor.” In other words, telling a co-worker isn’t enough. Get the claimant to identify who the claimant considered to be the “boss” and find out whether the claimant told that person. Also, because there may be more than one supervisor, have the claimant list all supervisors, any other people the claimant believed should be informed of work accidents, as well as...
by KPMLAW | Sep 14, 2015 | KPMBlog, News, Uncategorized
Editor: Rachel Riordan, Esquire Author: Robert McAdam, Esquire The “Willful Misconduct Defense” has recently been given a boost by the Court of Appeals in Layne v Crist Elect. Contr., Inc. 64 Va. App. 342, 768 S.E.2d 261 (2015). Under familiar statutory law (Virginia Code §65.2-306(A)(5)) workers’ compensation benefits will be denied to a claimant when the claimant commits a willful breach of a workplace safety rule brought to his attention prior to the accident; even though the underlying event would otherwise be compensable. This statute was recently reinvigorated by Layne. In Layne, the claimant was an employee of an electrical contractor and a subcontractor performing electrical work in a warehouse owned by Delta Star. The claimant was installing electrical conduit from a scissor lift high up in Delta Star’s core cutting room and had almost completed installing the conduit. Delta Star’s bridge crane, which was operational at the time, hit claimant’s scissor lift, causing both the scissor lift and claimant to fall far to the floor. The claimant sustained catastrophic injuries. The Claimant’s accident arose out of and occurred in the course of the employment. However, the Employer raised a willful misconduct defense, asserting the bridge crane would not have hit the scissor lift, and the injuries would not have occurred, if the claimant had rendered the bridge crane inoperable by following the “lockout-tagout” safety procedure. This procedure ensured that the electrified rails which allowed the bridge crane to move were inoperable, ensuring that the crane could not move. At hearing, the evidence showed the claimant was never given any written materials addressing the “lockout-tagout” procedure and did not...
