The Willful Misconduct Defense in Virginia Workers’ Compensation

 

After you file a workers compensation claim in Virginia, your employer and its workers comp insurance company will investigate your accident and injuries. The insurance company hopes that the facts will reveal several possible workers comp defenses so that it can delay, deny, and dispute your claim. And one of the most common defenses raised by insurance companies in workers’ comp claims – especially those involving construction injuries – is the willful misconduct defense.

 

This article explains the statutory basis for the willful misconduct defense in Virginia workers compensation, what the employer must prove to win on this defense, and how the injured worker can fight back. If you have a question about beating this defense or are looking for legal representation, call, text, or email Corey Pollard today. We’ve helped hundreds of injured workers in all types of jobs get approved for workers comp benefits and obtain lump sum workers compensation settlements.

 

Background on the Willful Misconduct Defense

 

What is the willful misconduct defense?

 

Virginia Code Section 65.2-306 states that “no compensation shall be awarded to the employee or his dependents for an injury or death caused by the employee’s willful misconduct … [or] the employee’s willful breach of any reasonable rule or regulation adapted by the employer and brought, prior to the accident, to the knowledge of the employee.” The rationale behind this statute is simple: an injured employee should not receive workers’ comp benefits if he was injured while doing something he shouldn’t have been doing.

 

How do I know if my employer is raising a willful misconduct defense to my workers comp claim? 

 

Under Rule 1.10 of the Rules of the Virginia Workers Compensation Commission, an employer that intends to rely upon a willful misconduct defense at the workers compensation hearing must give you written notice of its intent at least 15 days before the hearing. It must also file a copy of the notice with the Commission. The notice must contain “a statement of the particular act relied upon as showing willful misconduct.”

 

If the employer files a notice of its intent to raise a willful misconduct less than 15 days before hearing, or if the notice is vague and does not provide specific information about the act on which the defense is based, then your workers’ comp attorney should file an objection with the Commission right away.

 

Types of Willful Misconduct in Workers’ Comp Claims

 

Self-Inflicted Injury

 

Under the Virginia Workers’ Compensation Act, “no compensation shall be awarded to the employee or his dependents for an injury or death caused by … the employee’s … intentional self-inflicted injury.”

 

You will not receive benefits if the Commission finds that you intentionally caused your work accident and injury.

 

Intoxication

 

The Workers’ Compensation Act states that “no compensation shall be awarded to the employee or his dependents for an injury or death caused by … the employee’s intoxication,” or by “the employee’s use of a nonprescribed controlled substance …”

 

The employer and its insurance carrier have the burden of proving by a preponderance of the evidence that your intoxication caused the work injury. It is not enough for the employer to prove that you were intoxicated. It must establish a link between your intoxication and the work injury.

 

Because the employer only has to prove that intoxication was a cause of your injury, not the only cause, an experienced attorney will be proactive in trying to rebut an intoxication defense. This may include hiring a toxicologist or eliciting testimony from witnesses that you were functioning normally at the time of the injury and did not appear intoxicated.

 

Violation of a Safety Rule

 

The Virginia Workers’ Compensation Act states that “no compensation shall be awarded to the employee or his dependents for an injury or death caused by … the employee’s willful failure or refusal to use a safety appliance …,” or “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.”

 

Most willful misconduct defenses in Virginia involve an allegation that the injured employee violated a safety rule and that this violation led to the injury.

 

To prevail on this defense, an employer must prove: (1) that the safety rule was reasonable; (2) that the rule was known to the employee; (3) that the rule was for the employee’s benefit; and, (4) that the employee intentionally undertook the forbidden act. If the safety rule is reasonable and is known to the employee and for his benefit, and yet he intentionally does the act that is forbidden by the employer, then he is guilty of willful misconduct under the Virginia Workers’ Compensation Act.

 

The Workers Compensation Commission and Virginia courts have interpreted the Workers’ Compensation Act as requiring a high burden for the defense. A negligent employee can still receive workers’ comp benefits – even one who seems to have no concern for his own safety or the safety of others in the workplace. The employer therefore must show that injured worker intended to do something that he knew was not allowed.

 

This high burden of proof is something that you should use to defeat the employer’s willful misconduct defense. If appropriate, you should provide testimony and evidence to show that you did not intend to violate the safety rule.

 

Here are some other ways you may be able to defeat the willful misconduct defense:

 

  • Did the employer put its safety rules in writing and provide you with a copy of the rules? If not then the employer may have a difficult time proving that these rules were known to you.

 

  • Did the employer 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.

 

  • Did the employer enforce its safety rules? If your employer has a history of ignoring safety rule violations and not disciplining workers who violate written safety rules then the Commission may reject the willful misconduct defense. Enforcing the safety rules is often just as important has having safety rules when it comes to this defense. Your workers compensation attorney should issues interrogatories and request for production of documents in discovery to obtain copies of all relevant safety documents to see if the rules were enforced.

 

A Virginia Workers Comp Lawyer to Help You Defeat the Willful Misconduct Defense

 

Your employer and its insurance company are looking for ways to keep you from getting the compensation and medical care you deserve. If the willful misconduct defense is raised, you need an attorney who will be proactive and who will use discovery tools to determine if the employer can satisfy all the prongs of this defense. Contact us today for a free, no obligation consultation. Corey Pollard is here to help you and your family during this difficult time. We represent injured and disabled workers in Richmond, Chesterfield, Hanover, Fredericksburg, Williamsburg, Newport News, Hampton, Norfolk, and Virginia Beach.