Does Workers Compensation Cover Assault, Battery, and Other Workplace Attacks?

 

Workplace Violence is a Growing Threat. If You’re the Victim of an Attack at Work, You May Pursue Not Only a Workers Compensation Claim But Also a Third Party Tort Claim Against Your Attacker.

 

Violence in the workplace is a real and growing problem that has received much media attention these past few years.

 

And while increased attention to the threat of violence employees face is a good thing, non-stop press coverage on horrifying acts of coworker violence ignores the almost daily attacks on convenience store clerks, cashiers, taxi drivers, delivery drivers, restaurant managers, security guards, retail sales workers, and police officers by others.

 

Nonfatal workplace violence is a significant contributor to injuries on the job. Estimates vary, but one recent estimate states that nearly 2 million people are assaulted while at work or on duty each year. Many of these instances of workplace violence go unreported.

 

Fatal workplace violence is a problem as well. In 2015 there were more than 400 workplace homicides. That means murder accounted for close to 10 percent of all fatal occupational injuries that year, with armed robbers responsible for many of these workplace homicides. The number of workplace murders has remained high the past few years.

 

Unfortunately there is nothing that will eliminate all workplace violence. But there are things you and your employer can do to make the job safer.

 

And you have legal options if you are the victim of workplace violence.

 

The point of this article is to examine workplace violence, what you and your employer can do to make work safer, and what your legal options are if you are injured by violence while on the job.

 

The article addresses:

 

• What workplace violence is;

 

• The different types of workplace violence;

 

• Your employer’s duty to provide a safe workplace under the Occupational Safety and Health (OSH) Act;

 

• What employees are at greater risk of being attacked or assaulted in the workplace;

 

• Ways you can protect yourself from workplace violence;

 

• Ways your employer can protect you and other employees from workplace violence;

 

• Steps you should take if you’re the victim of workplace violence;

 

• How to get workers comp benefits if you’re injured in a workplace attack;

 

• What workers compensation benefits are available if you’re assaulted at work;

 

• Special workers comp rules that apply to victims of sexual assault in the workplace;and,

 

• Representative cases I’ve resolved involving workplace violence, including assault, battery, and attacks with guns.

 

If you have a question about workers compensation, or are looking for a top-rated attorney in Virginia, call me: 804-251-1620 or 757-810-5614. I’m ready to help.

What is Workplace Violenece?

 

Workplace violence is defined in various ways.

 

The National Institute for Occupational Safety and Health defines workplace violence as “violent acts, including physical assaults and threats of assault, directed toward persons at work or on duty.”

 

Attacks causing physical injuries and homicide, one of the leading causes of job-related deaths, are obvious examples of workplace violence.

 

But if you’re reading this article then you likely understand that workplace violence is not limited to physical assault and battery, such as shooting, stabbing, hitting, kicking, punching, head butting, choking, and other forms of striking.

 

It includes:

 

• Verbal threats;

 

• Verbal abuse;

 

• Written threats;

 

• Aggravated assaults;

 

• Sexual harassment;

 

• Sexual assault; and,

 

• Witnessing traumatic events such as the suicide or death of a co-worker, customer, or inmate.

 

Even the fear of attack, which can escalate to physical violence, or the witnessing of violence can affect your health permanently and prevent you from performing your regular job. And when this happens, you may be entitled to workmans comp.

 

Categories of Workplace Violence

 

Workplace violence usually falls into one of the following four categories:

 

• Criminal Intent (Stranger Harms Employee)

 

• Client, Customer, Resident, or Patient Harms Employee

 

• Worker-on-Worker Violence

 

• Personal Relationship

 

Let’s discuss each category of workplace violence.

 

Stranger With Criminal Intent

 

Customer, Resident, or Patient Attacks Employee

 

An Employee Harms Another Employee

Domestic Partner Violence

 

 

 

Your Employer Must Provide a Safe Workplace Under the OSH Act’s General Duty Clause

 

There is no federal law that states your employer has a duty to prevent workplace violence.

 

But the OSH Act does state that an employer has a duty to provide a safe work environment.

 

This responsibility is found in the General Duty Clause, which requires an employer to provide a workplace that is free from recognized hazards that are known to cause or are likely to cause death or serious injury.

 

An occurrence of workplace violence may result in the Occupational Safety and Health Administration citing an employer and forcing it to pay a large fine.

 

What Employees are at the Greatest Risk of Workplace Violence Resulting in Workers Compensation?

 

Each year millions of American workers are victims of workplace violence. Assault, battery, and hostility can strike any work environment. Everyone in the work force is at risk.

 

Some employees, however, are at greater risk of suffering bodily injury or mental harm because of workplace violence. This includes:

 

• Employees who work at homes, such as home health care aides or in-home nurses and counselors;

 

• Employees who exchange money with the public, such as cashiers and bank tellers;

 

• Employees who handle money, such as staff that makes deposits at banks;

 

• Employees who work where there is direct customer contact and where cash or other valuables, such as jewelry, are accessible;

 

• Employees who work alone or in small groups, where the number of customers or clients outnumbers them;

 

• Employees who work late at night or in the early morning hours;

 

• Employees who have to park in parking lots without adequate lighting;

 

• Employees who work in community settings, including group homes;

 

• Employees who work in neighborhoods with high crime rates, such as gas station attendants;

 

• Employees who deliver goods or products to people’s homes, such as tractor-trailer drivers, FedEx workers, UPS employees, and other delivery drivers.

 

• Employees who deal with complaints, such as social service workers, customer service personnel, and retail workers;

 

• Employees who work with mentally ill persons;

 

• Employees who deal with the general public during stressful situations, such as police officers, sheriffs, fire fighters, paramedics, and emergency first responders; and

 

• Employees who work at prisons, jails, or correctional facilities where inmates are incarcerated for violent behavior.

 

Healthcare workers are also at increased risk for workplace violence. One recent study found that healthcare workers – those employed in hospitals, nursing homes, and other healthcare settings – were four times more common to suffer injury from an incident of serious workplace violence than the private industry average. Hitting, kicking, shoving, and beating were common occurrences.

 

Patients are the largest source of workplace violence in healthcare. But nurses and other healthcare professionals face additional risks, such as visitors, coworkers, and vendors.

 

How Can You Protect Yourself From Workplace Violence?

 

Avoiding workplace violence is often out of your control. Nothing can guarantee that you won’t become a victim of workplace bullying, harassment, assault, or battery. Or that you won’t be a witness to these same things.

 

But there are steps you can take to reduce the likelihood that you experience workplace violence. These steps include:

 

• Tell your supervisor about your concerns immediately. And if your supervisor doesn’t listen, report your concerns to your boss’s boss. A high percentage of workplace violence goes unreported. This causes not only immediate problems but can also lead to an escalation in what you have to deal with.

 

• Learn to recognize potentially dangerous situations and call for help immediately.

 

• Do not travel alone if you can help it.

 

• Do not carry money alone.

 

I understand that some of these things are unavoidable if you want to keep your job. But if you can reduce the amount of times you have to do them or are able to get your employer to accommodate your concerns, you lower the risk of being a victim of workplace violence.

 

What Can Employers Do to Protect Employees From Workplace Assault?

 

Employers can take a number of steps to reduce the risk of violence in the workplace. These steps include:

 

• Establishing a no-tolerance policy toward verbal or physical violence;

 

• Establishing a violence prevention program;

 

• Addressing workplace violence in the employee handbook;

 

• Providing safety education to employees and managers;

 

• Providing a secure workplace, including video surveillance, security guards, identification badges, and electronic keys;

 

• Providing cell phones or handheld alarm systems to employees; and,

 

• Instructing employees that it is ok to ask for help or an escort if they do not feel safe entering a certain situation.

 

Though the following actions won’t protect employees from workplace violence, they may help with the physical, mental, and financial recovery:

 

• Offering mental health counseling to both the victim and other co-workers;

 

• Conducting an investigation into what happened;

 

• Reporting the event to the local police; and

 

• Discuss changes that can help prevent such attacks at future meetings.

 

What Should You Do If You’re the Victim of Workplace Violence?

 

If you are the victim of a workplace attack, including assault, battery, or harassment, I recommend doing the following:

 

• Report the work-related attack to your employer, both verbally and in writing;

 

• Seek emergency medical treatment if needed. If you do not need emergency care, ask your employer to provide a panel of physicians from which to choose;

 

• Report violent attacks to the police immediately;

 

• Seek mental health treatment. Victims of workplace violence often experience depression, anxiety, and post-traumatic stress disorder (PTSD).

 

• Call an attorney with experience in matters before the Workers Compensation Commission. The Commission has jurisdiction over workers comp matters, as well as the matters brought under the Criminal Injuries Compensation Fund. This is also known as the Virginia Victims’ Fund and it is open to all victims of crime; and,

 

• Determine if you have a personal injury case. You may be able to file a workers comp claim as well as a civil action under tort law. Assault, battery, and false imprisonment are not only crimes but also intentional torts.

 

How to Get Workers Compensation for an Attack at Work in Virginia

 

You must prove that you suffered an injury by accident arising out of and in the course of your employment to receive workmans comp in Virginia.

 

In cases of workplace violence, it is usually easy to prove that you suffered a bodily injury and that the injury was sustained in the course of your employment.

 

The difficulty in receiving workers comp for workplace violence is in proving that the attack arose out of the employment. Virginia is an “actual risk” state. It is not enough that you were assaulted at work.

 

You must prove that you were assaulted because of your employment.

 

There are two ways to establish this causal link in workplace assault cases.

 

First, you can receive workers comp by proving that the conditions of the employment raised the risk of assault. This is done by showing that the probability of assault was increased because of the nature of your job. For example, carrying or handling cash may increase the risk that you are robbed or assaulted while at work. Relevant evidence may include testimony regarding the number of employees assaulted, police reports establishing visits to the job site, and statistics showing that the place of employment is in a neighborhood with a high crime rate.

 

Second, you can receive workers comp if you can prove that your employment motivated the attacker. You must show that you were assaulted because you were an employee. Often this is easy. For example, if you are robbed because you are the pizza delivery driver you will receive benefits. Any piece of evidence that helps determine the attacker’s motive – such as a statement that he or she doesn’t like your company – can help prove entitlement to benefits.

 

These two methods overlap significant ways. Put simply, you must prove that you were robbed because you were an employee and not for personal reasons.

 

What if You Started or Provoked the Fight at Work But Received Injuries?

 

Virginia Code Section 65.2-306(A)(2) states that an injured worker or his dependents may not receive compensation if his injury or death was caused by his attempt to injure another person.

 

Using this statute the Workers Compensation Commission has denied claims for benefits when the employee was the aggressor or provoked the attack.

 

What type of behavior or acts arise to the level of “provoking” an attack is not clear. But the Commission has held that a single derogatory remark made by an employee as he walked away, after several derogatory and profane remarks uttered by a coworker, is not sufficient provocation for an assault and does not violate Code Section 65.2-306(A)(2). The employee in that case, therefore, received benefits.

 

Another question that arises under this code section is whether an employee may fight back when attacked, and still receive benefits. Or whether an employee can only receive benefits if he or she allows another person to attack them without resistance.

 

Fortunately the Commission has held that an injured employee is eligible for benefits when he is not a willing participant in a fight and attacks only to defend himself.

 

Workers Comp Benefits Available to Victims of Workplace Violence

 

Those of you who are victims of violence in the workplace and who prove that you are entitled to workers comp may receive the same benefits as other injured workers. These benefits include:

 

• Temporary total disability (TTD) to cover complete wage loss.

 

• Temporary partial disability (TPD) to cover partial wage loss due to a reduction in hours or wage.

 

• Permanent partial disability (PPD) if you suffer an amputation injury, vision loss, or loss of use a scheduled body part in the attack. These benefits are payable when you reach maximum medical improvement and require a permanent impairment rating.

 

• Death benefits to dependent spouses and children if workplace violence leads to death.

 

• Permanent total disability (PTD) benefits if you are never able to return to gainful employment because of workplace violence. You may also qualify for Social Security Disability benefits.

 

• Lifetime medical benefits for both physical and mental injuries resulting from the attack. Any mental health conditions resulting from the attack, such as depression, anxiety, or PTSD, may be compensable under the Workers Compensation Act – either as initial injuries by accident, occupational diseases, or compensable consequences.

 

• Vocational rehabilitation benefits to help you retrain for a new career or find a new job. Many victims of violence in the workplace are unable to return to their place of employment because of symptoms related to PTSD.

 

As your attorney I’ll also help you negotiate a top-dollar settlement so that you can move forward with your life.

 

Virginia Has Special Workers Compensation/Tort Claim Rules for Victims of Sexual Assault by an Employer or Co-Worker

 

Workers comp is the exclusive remedy for most on-the-job injuries. This means you cannot sue your employer in circuit court for negligence causing your injuries. For example, a negligent hiring claim against your employer based on a physical assault by a co-worker would fail in civil court.

 

But sexual assault by an employer or fellow employee is treated differently under Virginia Code Section 65.2-301.

 

Section 65.2-301, entitled Victims of Sexual Assault, states:

 

A. Any employee who, in the course of employment, is sexually assaulted … and promptly reports the assault to the appropriate law-enforcement authority, where the nature of such employment substantially increases the risk of such assault, upon a proper showing of damages … shall be deemed to have suffered an injury arising out of the employment and shall have a valid claim for workers compensation benefits.

 

B. Notwithstanding the provisions of this title, an employee who is sexually assaulted and can identify the attacker may elect to pursue an action-at-law against the attacker, even if the attacker is the assaulted employee’s employer or co-employee, for full damages resulting from such assault in lieu of pursuing benefits under this title, and upon repayment of any benefits under this title.

 

C. Nothing in this title shall create a remedy for sexual harassment, nor shall this title bar any action at law, that might otherwise exist, by an employee who is sexually harassed.

 

This code section does a few things:

 

• It establishes that sexual assault, including rape, can be a covered injury under the Workers Compensation Act.

 

• It establishes that you must report instances of sexual assault promptly to get the benefit of this law.

 

• It allows you to pursue a civil action against your attacker, even if the attacker is the owner of the company, a boss, or a co-worker. Depending on your attacker’s assets, resources, and income a civil action may allow you to recover substantially more money damages. This is because damages for pain and suffering are available in tort claims, as well as punitive damages.

 

• It establishes that sexual assault, including rape, is a covered injury under the Workers Comp

 

Nothing in this code section prevents you from pursuing both a workers comp and a third party claim if the attacker is not a co-worker or employer.

 

Representative Workers Compensation Workplace Violence and Assault Cases I’ve Handled

 

I’ve successfully resolved and negotiated Virginia workers compensation settlements for many victims of violence in the workplace. These employees include:

 

• A waitress who suffered a dental injury and resulting depression when she was punched in the face while breaking up a fight between patrons;

 

• A teacher who suffered a torn rotator cuff injury while breaking up a fight between students on the school bus;

 

• A teacher who suffered a traumatic brain injury when she was attacked by a student;

 

• A restaurant manager who suffered a spinal cord and herniated disc injury when a co-worker attacked him over a scheduling conflict;

 

• A nurse who suffered an ankle, back, and knee injury when a mentally ill patient attacked her;

 

• A counselor who suffered injuries to his head and face when a resident at a group home ran into him intentionally;

 

• A convenience store clerk who injured himself while defending himself from a disgruntled customer;

 

• A bank teller who was robbed at gun point; and,

 

• Many more.

 

Get Help With Your Workmans Comp Case Resulting from Workplace Violence

 

The workers comp, personal injury, and criminal justice systems won’t change what you’ve been through. But the money damages and medical care available to you if you are a victim of violence at work can help you restore some normalcy in your life.

 

Call now for a free consultation: 804-251-1620 or 757-810-5614. You must act quickly to make sure you satisfy the workers compensation statutes of limitations.

 

As a Virginia work injury lawyer I’ve represented hundreds of injured employees and their families. And no matter where you’re located – Richmond, Chesterfield, Newport News, Hampton, Norfolk, Virginia Beach, Chesapeake, Fredericksburg, Staunton, Charlottesville, Fairfax, Loudoun County, Roanoke, or Manassas – I can help you. Just call.