Workers' Compensation
Fall 2018

Virginia Deputy Commissioner “Swats” Claim for Accidental Injury

Alex Mayfield in the Herndon, Virginia office recently prevailed at an evidentiary hearing on the denial of a claim before the Virginia Workers’ Compensation Commission. Claimant, appearing pro
se, alleged he sustained an injury to his chest, shoulder, and neck, when he swatted at a fly while working as a test proctor. In addition to lifetime medical benefits, Claimant sought temporary total disability benefits from the date of injury to present and continuing.  On behalf of the Employer and Insurer, Alex raised defenses of: (1) no injury by accident arising out of or in the course of  employment; (2) Claimant not disabled to extent alleged; and (3) Claimant failed to provide timely notice of his alleged injuries.

At the evidentiary hearing, Claimant testified that he was seated at his workstation when he observed a flying insect that flew underneath his desktop. After he spotted the insect, he testified that he bent forward at his waist for approximately 15-30 seconds in an attempt to swat the bug away with a piece of paper. As he was straightening up to a seated position, he allegedly felt a burning sensation or spasm in his stomach/chest.  Claimant testified on cross-examination that the bug was “not a regular fly” and that he did not want the people undergoing testing to be disturbed. Additionally, he stated that his job duties as a test proctor required him to exterminate pests from the facility, including rats.  As to medical treatment, Claimant stated he initially thought the pain would subside, but eventually sought treatment at the emergency room, where he was given muscle relaxers and pain medication.

Although Claimant claimed wage loss related to the alleged work accident, including an inability to work for eight hours a day due to his pain, he admitted to subsequently working as a shuttle driver and accepting “love offerings” (i.e., donations) through the ministry.  Claimant provided minimal medical evidence to the Commission, which included a referral for physical therapy dated February 6, 2016, and a “Patient Visit Information” document from the emergency room noting a visit on February 19, 2016 for a chest wall and muscle spasm.  Claimant, upon his request for hearing, had the burden of proving the essential elements of his case by a preponderance of the evidence. For a basic accidental injury claim in Virginia, the essential elements include
an (1) injury by accident, (2) arising out of the claimant’s employment, and (3) in the course of the claimant’s employment. Additionally, a claimant must prove the causal relationship of the alleged accident to medical treatment sought and subsequent wage loss.

The Deputy Commissioner weighed the evidence presented at the hearing and ultimately found that the claimant did not meet his burden of proving an injury by accident arising out of his employment because “the simple act of sitting back up in a chair after swatting at a fly” is not a risk associated with Claimant’s
employment. In his Opinion, the Deputy Commissioner relied on important authority regarding the “arising out of ” prong of an accidental injury claim—“‘[t]he mere happening of an accident at the workplace, not caused by any work related risk or significant work related exertion, is not compensable.’ Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306
(1989).” If the general public is exposed to the same risk outside of the workplace, then the injury is not likely to be found as compensable under the Act.

Because the Deputy Commissioner found that Claimant did not prove an injury by accident, he did not make findings related to the other defenses raised. As this case was decided at the evidentiary hearing level, it does not have any precedential value, but it provides an overview of the law regarding the “arising out of ” element needed to prove compensability. Many injuries, although they occur at work, are not compensable
injuries under the Virginia Workers’ Compensation Act.

For more information about this article, please contact Alex Mayfield at 571.612.5948 or