What Does Virginia Workers’ Comp Cover? The Actual Risk Test Explained

Many people assume that if you get hurt at work, workers' compensation covers it. In Virginia, it isn't that simple. Virginia is what's called an actual risk state. For an injury to be covered under the Virginia Workers' Compensation Act, it has to "ring a series of bells," meeting specific criteria set by the Virginia General Assembly.

If an injury doesn't meet those criteria, it isn't covered. Because every claim must satisfy them, there's a lot of litigation when an insurance adjuster denies a claim. Adjusters know these rules well, and they have attorneys on standby. You should have an experienced attorney watching your back from the beginning too, because it's easy to say something early on that hurts your case from start to finish.

The Three Requirements for Coverage

In Virginia, there are three basic "bells" an injury must ring to be covered.

1. Injury by Accident

The injury must:

• • Result from a sudden or specific incident
  • Happen at a known, reasonably definite time
  • Cause a structural or mechanical change to your body
  • Be causally related to the accident

This is why gradual wear-and-tear injuries are so often denied. (See Hurt From Heavy Lifting at Work? and Is Carpal Tunnel Covered?) It's also why pain alone isn't enough when you reinjure an old injury. (See Reinjured an Old Injury at Work?)

2. Arising Out of the Employment

The accident must arise from a risk that is peculiar to your job. In other words, it can't be the kind of accident that could just as easily happen in your own backyard. This is the heart of the actual risk test, explained in more detail below.

3. In the Course of the Employment

This legal term means you were hurt while you were somewhere your employer expected you to be, doing something your employer expected of you. It's why most commuting accidents aren't covered. (See Hurt Driving to or From Work?)

These three are the basic elements, but there are exceptions. That's one more reason to talk to a workers' comp attorney if you've been hurt on the job.

The Actual Risk Test: You Must Know What Caused Your Accident

To qualify for benefits in Virginia, you must know what caused your workplace accident. The injury has to come from a specific hazard or risk tied to your employment, "a risk peculiar to the employment."

Simply being "on the clock," or getting hurt at your workplace, isn't enough. If an accident doesn't meet the criteria the General Assembly has written, it's rejected for coverage.

The Danger of the "Unexplained Fall"

If you slip, trip or fall but can't point to the exact cause, it's exceptionally difficult to prove your accident came from a risk peculiar to your job, unless the Commission accepts circumstantial evidence explaining why it happened. That's why workers' comp insurers usually reject unexplained accidents.

You need to be able to identify a specific work-related factor or condition that contributed to the accident. For example:

• • Tripping over a piece of equipment or an uneven floorboard
  • Slipping on a wet surface, oil or debris
  • Being struck by, or losing your balance because of, a falling object

If you're hurt in a fall, notice and write down what caused it, and tell your employer and your doctor.

Rare Exceptions

In very rare cases, such as when a worker is found dead at the scene and can't testify, the Commission may apply a legal presumption, or rely heavily on circumstantial evidence, to find a work-related cause. But in a typical injury where you remain conscious, you're fully expected to identify what happened.

Cause, Not Fault

It's important to separate cause from fault.

Virginia workers' comp is a no-fault system. You don't have to prove your employer was negligent. And you can still receive benefits even if your own mistake, carelessness or clumsiness caused the accident, as long as you didn't willfully violate a known and enforced workplace safety rule.

What you do have to establish is the environmental or situational cause, to show the injury "arose out of" your employment.

The Trade-Offs That Help Injured Workers

Because of all these requirements, some workers feel Virginia's workers' comp law favors employers. But the system includes trade-offs that help balance things out:

• • Your own fault usually doesn't matter. In a traditional Virginia personal injury case, being even 1% at fault (contributory negligence) can defeat your lawsuit. Under the Workers' Compensation Act, you can be 100% at fault for your own injury, and as long as you didn't violate an enforced workplace safety rule, it's irrelevant.
  • The work accident only has to be part of the cause. An injury only has to be the result of, or related in part to, the workplace accident to be protected under the Act.
  • Work causes win ties. An injury can have two causes, one work-related and one not, and the work-related cause carries the day.

While Virginia's comp laws may seem stacked against injured workers, the state has struck more of a balance than most workers realize.

Talk to a Virginia Workers' Comp Attorney

If you've been hurt at work and aren't sure your injury meets Virginia's requirements, or your claim was denied, Thomas & Thomas Law offers a free consultation. Call 540-613-8616 or fill out our Workers' Comp Consultation Form.

Related: Virginia Workers' Comp FAQs · Virginia Workers' Compensation Attorney