Guide to the Willful Misconduct Defense in Virginia Workers Compensation

 

Learn How to Overcome the Willful Misconduct Defense and Violation of a Safety Rule Allegations, and Get the Workers Comp Benefits You Deserve.

 

After you file a workers compensation claim in Virginia, your employer and its workers comp insurance company will investigate what caused the accident. Their hope is that the facts reveal several possible workers compensation defenses they can use to delay, deny, and dispute your claim.

 

One of the most common defenses raised by insurers in workers comp claims – especially those involving construction site accidents- is the willful misconduct defense. Many employers and insurers start their investigation by looking for willful misconduct. That is because some safety directors and insurance claims adjusters think that a workplace injury only occurs if an employee was doing something they should not have.

 

The purpose of this article is to help injured employees overcome the willful misconduct defense when it is raised in Virginia.

 

If you have any questions about the willful misconduct defense or Virginia workers compensation law, or are looking for an experienced work injury attorney, call me for a free consultation: 804-251-1620 or 757-810-5614. Come see why fellow attorneys and clients have voted me one of the Best Lawyers in America for Workers Compensation. I’ll help you get the cash and medical benefits you deserve, and negotiate a top-dollar workers compensation settlement.

 

There is a Difference Between Negligence and Willful Misconduct in Workers Compensation

 

Virginia has a no-fault workers compensation system.

 

This means you are eligible for workers compensation benefits regardless of who is to blame for the accident and injuries. Whether your own carelessness and negligence, or the employer’s negligence, caused the workplace accident, you may still be eligible for workers comp. Negligence, defined as heedlessness, inattention, and inadvertence, does not bar recovery of workers compensation benefits.

 

There are, however, exceptions to this general rule. You are not entitled to workers comp benefits if your own reckless or willful misconduct caused the injury.

 

The Workers Compensation Act provides employers a defense to workers compensation claims when a workplace injury is caused by willful misconduct. Virginia Code Section 65.2-306 sets forth the type of behavior that is considered willful misconduct. And over the years the Virginia Workers Compensation Commission has issued hundreds of judicial opinions interpreting the willful misconduct statute.

 

Virginia Code Section 65.2-306: The Willful Misconduct Defense Statute

 

Virginia Code Section 65.2-306 is entitled “When compensation not allowed for injury or death; burden of proof.” It states:

 

A. No compensation shall be awarded to the employee or his dependents for an injury or death caused by:

 

1. The employee’s willful misconduct or intentional self-inflicted injury;

 

2. The employee’s attempt to injure another;

 

3. The employee’s intoxication;

 

4. The employee’s willful failure or refusal to use a safety appliance or perform a duty required by statute;

 

5. 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; or,

 

6. The employee’s use of a nonprescribed controlled substance identified as such in Chapter 34 (Section 54.1-3400 et seq) of Title 54.1.

 

The rationale behind this statute is simple: An injured employee should not get workers comp benefits if they were injured while doing something they should not have been doing.

 

The Employer and Insurance Carrier Have the Burden of Proving Your Willful Misconduct Caused the Work Injury

 

Your employer and its insurer have the burden of proof to show that your willful misconduct caused the workplace accident. Virginia Code Section 65.2-306(B).

 

The Commission and the Court of Appeals of Virginia have interpreted the statute to require a high burden of proof for the employer and insurer. Usually it is not enough for the employer and insurer to show that you were not performing your job safely or that you were endangering yourself and others. Rather, the employer must prove that you had a “wrongful intention” to violate the law or to ignore your employer’s safety rule.

 

How Will I Know if My Employer or Its Insurer are Raising the Workers Comp Willful Misconduct Defense?

 

Your employer must notify you that it intends to rely on a willful misconduct defense.

 

Rule 1.10 of the Rules of the Workers Compensation Commission states:

 

If the employer intends to rely upon a defense under Section 65.2-306 of the Act, it shall give to the employee and file with the Commission no less than 15 days prior to the hearing, a notice of its intent to make such defense together with a statement of the particular act relied upon as showing willful misconduct.”

 

If the employer does not comply with this rule and provide timely notice before your workers comp hearing, then it waives the willful misconduct defense. Either you or your attorney must raise the objection and file a motion to strike the willful misconduct defense either before or at trial.

 

Types of Willful Misconduct in Workers Compensation Claims

 

Now I will explain the specific types of willful misconduct the employer may allege to try to deny your workers comp claim.

 

Violation of a Safety Rule and Workers Comp

 

Direct violation of a safety rule is the most common willful misconduct defense I see raised in construction, manufacturing, and fall from height (ladder, scaffold, roof, utility pole) cases.

 

Both the Supreme Court of Virginia and the Court of Appeals of Virginia have set forth the elements that defendants must prove to show that the violation of a safety rule caused the work injury:

 

1. That the safety rule was reasonable;

 

2. That the safety rule was known to the employee;

 

3. That the safety rule was for the injured employee’s benefits; and,

 

4. That the employee intentionally undertook the forbidden act.

 

The employer and insurer do not have to prove that, knowing the safety rule, you purposefully determined to break it. Rather, they have to show that, knowing the safety rule, you intentionally performed the forbidden act.

 

The fact that you had knowledge of the safety rule and broke it does not, however, mean that you are automatically barred from receiving workers comp benefits such as temporary total disability or permanent partial disability payments.

 

You can overcome your employer’s violation of a safety rule defense in one of several ways:

 

1. By showing that your violation of the safety rule was not the cause of your injury. For example, let’s say that your company requires you to wear a safety harness when working on a ladder of a certain height. You decide not to wear the safety harness and suffer a shoulder injury while hammering something in an awkward position. In this scenario, your violation of a safety rule would not keep you from getting workers comp because the violation did not cause or worsen the injury.

 

2. By showing that the employer had a pattern or practice of failing to discipline or termination employees who violated the safety rule. If there is evidence that the employer did not enforce the safety rule in question, then the Commission may award benefits even though your violation of the rule caused the injury. The best way to establish that the employer had a pattern of not enforcing the safety rule is through the discovery process, including interrogatories and requests for production of documents. You are looking for documentation to prove that the employer did not discipline other employees who violated the safety rule. If there was no bona fide enforcement of the safety rule, you can still win.

 

3. By showing that other circumstances forced you to violate the safety rule. For example, I recently obtained workers comp benefits for a union lineman and electrician accused of violating a safety rule. Both his testimony and the testimony of his supervisor showed that the employer did not provide him with the required safety equipment, that he looked for the safety equipment, and that he decided to take action without the safety equipment because he needed to complete the job to fix an emergency. The case law suggests that you may receive workers comp benefits even if you violate an OSHA safety rule, so long as you were justified in doing so.

 

4. By showing that the employer did not put its safety rules in writing or provide you with a copy of the rules. If the employer did not publish a set of rules then it may have a difficult time proving that you knew of the safety rule allegedly violated. And if you did not know of the safety rule, then employer’s willful misconduct defense should fail.

 

5. By showing that the employer did not have any safety training or regular classes where it went over the safety rules. If not then the employer may have difficulty showing that you knew about the safety rules or that they even existed. In discovery your attorney should ask for copies of attendance sheets from any safety meetings that were held to determine if you were in attendance.

 

6. By showing that you were unable to understand the safety rules because the employer did not provide the rules in your language. For example, if the employer gives you an Employee Safety Manual in English, but you only speak and understand Spanish, then you can likely overcome the willful misconduct defense.

 

Intoxication and Workers Comp

 

If your employer and its insurance carrier can show that you were intoxicated or under the influence of drugs or alcohol at the time of the work accident, then you may have trouble getting workers comp benefits.

 

If the defendants can prove that you had a Blood Alcohol Content (BAH) level of 0.08 or higher at the time of injury, or that you tested positive for drugs by a Substance Abuse and Mental Health Services Administration (SAMHSA) certified laboratory, then there is a rebuttable presumption that you were intoxicated or using drugs at the time you were hurt on the job.

 

There is, however, an exception to the rebuttable presumption that you were intoxicated or using drugs at the time of the work-related accident. If you die from your injuries, then the presumption does not apply.

 

Further, defendants must still prove that your intoxication or drug use caused your accident or injury to prevail on their willful misconduct defense. For example, the Commission has awarded benefits when there was proof that an employee had smoked marijuana before the accident but there was no proof that his doing so caused the accident. It also awarded benefits when there was an allegation that an employee’s cocaine use caused the accident, but there was evidence to show that the employee was hurt because the steep, slippery bank he was standing on gave way.

 

Overcoming the Presumption that You were Intoxicated or Using Drugs at the Time of the Work Accident and that This Caused Your Injury

 

There are several ways to try to overcome the willful misconduct defense that you were intoxicated or using drugs at the time of your work-related injury:

 

1. By hiring a toxicologist to prove that you were functioning normally at the time of injury, despite your positive drug test.

 

2. By getting testimony from witnesses who saw you shortly before the accident that you were acting normally and performing your job well.

 

3. By examining the drug test results to see if there are any discrepancies or errors.

 

4. By seeing if the legal and medical chain of custody for the body fluids was broken. If the drug laboratory failed to use methods that prevented adulteration or altercation of the results, then you may be able to strike the positive drug test results as evidence.

 

5. By pointing out the time lapse between the positive drug test and your accident, especially if you used drugs or consumed alcohol after the accident but not before.

 

If you present clear and convincing evidence that your intoxication or drug use did not cause the injuries, then you can still receive benefits.

 

Failure to Wear a Seat Belt and Workers Comp

 

I represent many employees who are hurt in work-related motor vehicle accidents. And one of the first things that the insurer looks for when investigating these claims is whether the employee was wearing a seat belt at the time of the accident. If not, then the insurer may raise a willful misconduct defense based on both violation of a safety rule and violation of a statute.

 

Depending on your testimony and the circumstances of the motor vehicle accident, you may receive benefits even if you were not wearing a seat belt.

 

For example, in Blackwell v. Puryear Trucking, VWC No. 188-28-78 (Nov. 6, 1998) the Commission awarded benefits when the claimant testified he “simply forgot” to put his seat belt back on after a brief stop. The Commission found that the claimant inadvertently failed to comply with the rule requiring use of a seat belt and that there was no willful intention not to wear the belt. The claim, therefore, was not barred by willful misconduct.

 

If, however, you simply decided to not wear a seat belt, or fail to offer sufficient evidence as to why you were not wearing a seat belt, then the Commission will likely deny benefits.

 

Failure to Stop at a Stop Sign or Stop Light, or Following Too Closely, and Workers Comp

 

If you are found responsible for causing a work-related car accident and the police, sheriff, or state trooper issues a ticket for following too closely or failure to stop, you may still receive workers comp benefits if you are hurt in the accident.

 

The Commission will examine the evidence, including your testimony, to decide if you intentionally undertook the act of following too closely or running the stop sign or stop light. If it decides that your driving error was the result of heedlessness, inattention, or inadvertence, rather than intentionally running the stop sign or following too closely, it may award benefits.

 

Self-Inflicted Injury and Workers Comp

 

Though it is rare, sometimes an employer will allege that an injured employee intentionally caused the work accident and injury. In other words, the employer may allege that you tried to hurt yourself on purpose.

 

Usually the self-inflicted injury defense is raised along with an allegation that the employee is guilty of workers comp fraud and is faking an injury to try to get benefits.

 

Just twice in my career has an insurance company alleged that my client hurt himself or herself on purpose. And both times I thought it was a bogus defense. We ended up settling one of the cases for approximately $30,000.00 and winning the other one after a hearing before a deputy commissioner.

 

Do not let the insurer’s threats of alleging that you inflicted the injury on purpose or are faking it keep you from filing a claim when those threats are nothing more than an intimidation tactic.

 

Get Help Overcoming the Willful Misconduct Defense in Your Workers Comp Case

 

The insurance company is not your friend. The claims adjuster is looking for a way to deny your case. And one of the most common strategies to deny a workers comp claim is alleging that an employee’s intentional misconduct caused the work injury.

 

If the insurer raises the willful misconduct defense after you file a workers compensation claim, call an experienced attorney who can help you develop a legal strategy to overcome the defense. There are tens of thousands of dollars – or more – on the line. And you can preserve your right to these benefits by being proactive.

Corey Pollard
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