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Understanding the “Actual Risk” Test in Workers’ Compensation Cases

If you’re disabled in an accident on the job, you may be entitled to workers’ compensation, which will pay most of your wages and all your medical bills while you’re unable to work. However, the Virginia workers’ compensation law doesn’t apply to all work accidents, but only to those that “arise from” your employment.

To determine if a work injury arises from employment, the Virginia courts use the “actual risk” test, which requires the injured employee prove that the risk causing the injury is peculiar to the employee’s work and not something that would be encountered by the public at large. Put another way, it must be something that a reasonable person familiar with the whole situation would understand naturally follows from a condition of employment.

The actual risk test is not straightforward, as one can tell by looking at appellate court cases interpreting it. For instance, in a case where a worker was injured by co-workers throwing ice at him, the court deemed this “horseplay” an actual risk, as opposed to an assault for personal reasons, which would not be.

However, courts found no compensability in these circumstances:

  • The injury was caused by a personal item the injured employee used at work without her employer’s knowledge, approval or acquiescence.
  • A paramedic fainted while observing a medical procedure, but it was not clear whether the observation caused the fainting.
  • The employee fell from a seated position for unknown reasons.
  • An employee slipped and fell while walking from her car to a mandatory training session outside her workplace, but she chose the parking spot and her route to the building.

The actual risk test can be a trap for the unwary. If you are injured in the course of your employment, you may be too hurt to think about what happened and might make a mistake in describing your injury to your employer, which can impair your claim for workers’ compensation. Let your employer know you were injured, but don’t try to give a detailed account of your accident. Instead, seek medical attention and then tell your story to a workers’ compensation attorney, who can advise you as to whether the injury qualifies for workers’ compensation and represent you in your claim for benefits.

At Tucker Griffin Barnes P.C. in Charlottesville, Virginia, we will give you the careful, skillful legal counsel you need to maximize your chances of recovering fair compensation. For a free consultation, call us at 434-973-7474 or contact us online.

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