Split Virginia Court Affirms Denial of Airport Worker’s Electrocution Claim

Lip Service Given to “Liberally Construing” the “Arising Out of” Tests

In a split decision, the Court of Appeals of Virginia, tipping its hat to the notion that the workers’ compensation statutes should be liberally construed to effect a beneficent purpose, affirmed a finding by the state’s Workers’ Compensation Commission that denied benefits to an airport ramp worker who contended he suffered an electrocution injury while in close proximity to a large airplane that he and others had begun to unload in the pouring rain [O’Donoghue v. United Cont’l Holdings, 2019 Va. App. LEXIS 63 (Mar. 26, 2019)]. Employing the state’s “actual risk doctrine” and quoting Larson’s Workers’ Compensation Law, § 3.04, the majority held that the record supported the Commission’s finding that claimant failed to show that his alleged injuries arose out of his employment. In particular, the Court observed that the claimant’s proof was speculative. It failed to exclude lightning as a likely source of his electric shock, and it failed to show that his employment placed him at an increase risk of being shocked.


Claimant’s duties included loading and unloading airplanes at Dulles Airport. Earlier on the day at issue, the outdoor ramp where he was working was temporarily closed due to thunderstorms in the area. Later in the claimant’s shift, the ramp on which he was working reopened, and a Boeing 787, one of United’s newest and largest airplanes, arrived at one of the gates. Because of the 787’s composite construction and on-board lithium batteries, special procedures were utilized. Specifically, unlike with most other aircraft, the airplane service personnel attached no ground power to the plane while in the gate area.

Blue Arc Came From Control Panel

Claimant testified that when the 787 arrived at the gate that night, storms were in the area with “lightning all around.” Claimant further testified that it was raining hard and about an inch of rainwater was standing on the ground near the plane. Claimant said he climbed a metal ladder that had been pushed to the plane, opened an access panel on the plane, and reached for an interior toggle switch that operated the cargo door. Claimant testified he could see lightning in the distance while he did so. Claimant continued that as he touched the toggle switch, “a blue arc came out of the control panel.” He felt electricity go through his body.

Stuck by Lightning?

The claimant told his supervisor and another employee that he had been struck by lightning, and he immediately sought medical treatment. The ramp was still open when he was injured, but it was closed again soon after his electrocution due to the weather conditions. The medical records in evidence include various equivocal descriptions of the electrocution. They indicate that the claimant was “struck by lightning”; “was either directly struck by lightning or impacted by lightning that struck the plane as he was touching the cargo door”; or was “struck by lightning” or encountered “static electricity.” In his testimony, the claimant noted that he was “not a science person” and that he was not sure if the source of the arc was “static electricity” from “the ground,” “the sky,” or “the aircraft,” or if it was a lightning strike.

Deputy Commissioner’s Findings

The appellate court observed that the deputy commissioner had correctly noted that under Virginia law, the mere occurrence of an injury due to a lightning strike while at work is insufficient to invoke the coverage of the Workers’ Compensation Act. A claimant must prove, additionally, that the conditions of the employment collaborated in causing the injury.

The deputy commissioner further found that the claimant had not presented persuasive evidence that was working at a location or performing a work related duty that created a special or peculiar risk of exposure to a lightning strike. The deputy commissioner concluded that the evidence presented the possibility that the injuries could have resulted from a sudden discharge of static electricity from the plane arising out of the employment rather than from a lightning strike but that such a theory was mere speculation on the evidence presented. Consequently, the deputy commissioner held that the claimant failed to prove the requisite causal connection between his employment and his injuries.

Actual Risk Doctrine

The majority of the appellate court noted that it was undisputed that the claimant’s injuries arose “in the course of” his employment. Only the “arising out of” prong was in dispute. In determining that prong, the court, quoting Larson § 3.04, said Virginia utilized the “actual risk” test.

The majority continued that although possible causes of electrocution in this case other than lightning—e.g., a discharge of static electricity from the airplane or an electrical malfunction— would constitute compensable actual risks of the claimant’s employment, the claimant had not excluded lightning

as a possible cause of his injuries. The evidence in the record did not disprove as a matter of law the theory that the claimant was injured by a lightning strike rather than by an electrocution wholly unrelated to lightning.

Author’s Comment

Quoting Lucas v. Lucas, 212 Va. 561, 562-63 (1972), the majority indicated that the “arising out of” prong of the statutory test is “to be liberally construed to carry out the humane and beneficent purpose of” the Act [Opinion, p. 6]. One is left to wonder whether the majority actually meant those words. Here, claimant testified that the handling of the 787 was different from other planes. No power lines were attached which would “ground’ the aircraft. He testified that it was raining heavily, he was standing on a metal ladder which, in turn, was standing in an inch of ground water. He specifically testified that as he touched the control panel, he saw a “blue arc” and felt an immediate shock.

One reason for liberal reading of the Act’s beneficent purposes relates to judicial and administrative efficiency and expense. If every Virginia claimant were required to offer expert testimony as to the cause of his or her injury, the administration of the state’s Workers’ Compensation Act would grind to a halt. For decades, administrative agencies and law judges have applied common sense rules to judge causation. Here, the claimant admitted that he was not a “science person.” Neither am I. The claimant’s testimony was not refuted by the employer (at least as far as I can determine from the opinion). True, the claimant did not exclude a lightning strike as a potential cause. To my eye—and that of dissenting Justice Huff—the claimant here did show by a preponderance of the evidence, that his electrical shock arose out of the employment.

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