Workers' Compensation
Summer 2018

Compensability of Weather-Related Injuries in Virginia

In Virginia, injuries from heat or cold exposure may be compensable if the claimant was exposed to conditions beyond what is typically encountered by other workers doing the same type of work. One example of this is when a claimant is exposed to artificially excessive heat or cold. See Byrd v. Stonega Coke, Etc., Co., 182 Va. 212, 28 S.E.2d 725 (1944) (employee’s death after being exposed to the heat from an oven that was 10-12 degrees higher than normal on a very hot day was a compensable injury), and Southern Express v. Green, 257 Va. 181, 509 S.E.2d 836 (1999) (employee’s frostbite from staying in a cooler for four hours was compensable).

Virginia courts have found a claimant who suffers from heatstroke while working outside may be entitled to workers’ compensation benefits. The determining factor is whether the type of work in which the claimant was engaged also contributed to the heatstroke. For example, the Court of Appeals of Virginia found a claimant working as a traffic flagger sustained a compensable injury where the heat on a June day, combined with his working conditions, caused his heatstroke. Kjellstrom & Lee, Inc. v. Saunders, 42 Va. App. 673, 594 S.E.2d 281 (2004). The Court found the claimant was not simply exposed to the same heat as the general public but was exposed to that heat while “working in the open, in the sun, on asphalt and concrete, with no relief afforded by employer.” Further, the injured worker was not free to leave his post and did not have access to water.

Injuries from weather exposure are not compensable if the employee was in no greater danger of injury than the general public. For example, in Robinette v. Kayo Oil Co., 210 Va. 376, 171 S.E.2d 172 (1969), the Supreme Court of Virginia held the claimant’s death from pneumonia caused by cold and rain exposure was not compensable. The Court reasoned the claimant’s death was not compensable because there was nothing to distinguish his activities from any other workers who were required to do outside work in all kinds of weather. Id. In other words, the weather alone, and not the weather combined with the conditions of the employment, caused the claimant’s injury. See also Imperial Trash Service v. Dotson, 18 Va. App. 600, 445 S.E.2d 716 (1994) (noting that “it was not the heat alone that caused Dotson’s heatstroke and death.”)

Taking steps to protect employees from overexposure in inclement weather will reduce the likelihood that employees suffer a compensable work injury. Therefore, it is important that employers permit employees to take breaks and have access to appropriate accommodations when working in extreme heat or cold.

For more information about this article, please contact Ciara W. Malone at 571.612.5937 or