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Top Ten Issues In Employment Law For HR Professionals In Virginia in 2008: #8

Published by on January 27, 2009

We will be posting over the next week the top ten developments in employment law for HR professionals in Virginia in 2008.  The list is in no particular order.  Topic number 8 is: Workplace Injury Caused By Co-Workers Unauthorized Use Of A Work Tool Does Not “Arise Out Of” Employment.  More after the break. In Hilton […]

We will be posting over the next week the top ten developments in employment law for HR professionals in Virginia in 2008.  The list is in no particular order.  Topic number 8 is:

Workplace Injury Caused By Co-Workers Unauthorized Use Of A Work Tool Does Not “Arise Out Of” Employment.  More after the break.

In Hilton v. Martin, the Supreme Court of Virginia reversed a trial court’s decision, and found that fatal injuries that employee sustained as a result of a co-worker’s assault did not rise out of her employment, and thus the Workers’ Compensation Act (“Act”) was the not her sole remedy.  On June 1, 2005, Courtney Leighann Hilton Rhoton (“Courtney”), an emergency medical services provider, was seated in the passenger side of the front seat of an ambulance owned by her employer, Highlands Ambulance Service, Inc.  While the ambulance was moving, Courtney’s co-worker, Joshua Martin, turned on the power to a defibrillator and with the defibrillator paddles in hand he started joking with her.  Martin turned away and then turned around and struck Courtney on the left shoulder and breast with the paddles.  Courtney screamed, and started to have a seizure.  Courtney had cardiac arrest, electrocution, never regained consciousness and died three days later.  The administrator of Courtney’s estate brought action against Martin and Highlands for assault and battery, medical malpractice against the paramedic and Highlands, and negligent hiring and negligent retention against Highlands.  Defendants asserted that the Plaintiff sole remedy was provided by the Workers Compensation Act.  The trail court ruled that the accident arose out of and in the course of employment and that the plaintiff’s exclusive remedy was provided by the Act. 

If an “injury” results form an “accident” and arises out of and in the course of the injured person’s employment, the rights provided by the Act are the sole remedies for the injury.  Code 65.2-101, 307.  It was undisputed that Courtney’s fatal injury arose in the course of her employment.  Therefore, the sole question on appeal was with the circuit court erred in finding that her injury was also “arising out of” her employment. 

To determine if an injury arises out of employment, the “actual risk” test is used, under which an injury comes with the Act only if there is a causal connection between the employee’s injury and the conditions under which the employer requires the work to be done.  Citing precedent, the court stated that if an assault is personal to an employee and not directed against him as an employee or because of his employment the resulting injury does not arise out of the employment.  An injury thus arises out of employment when the conditions under which the employer requires the work to be done are a contributing cause of the injury.

The Supreme Court found that Martin’s assault had no relationship with Courtney’s status as an employee.  Martin’s unauthorized use of a work tool, the defibrillator, was immaterial and not probative on the question of whether the employer’s workplace requirements caused the injury.  Whether the conduct is labeled as flirtatious, playful or harassment, it was purely personal, and unconnected with the conditions of employment.  Therefore, the court found that the Act was not the exclusive remedy, and reversed and remanded the trial court decision. 

As this ruling demonstrates, employers cannot necessarily rely on the Workers’ Compensation Act to cover all work related injuries.  Employers should monitor employee behaviors and be proactive in warning employees of workplace dangers, so that in the event a workplace accident occurs, it can demonstrate that it used due diligence to prevent any injury, related to the work or otherwise.

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