Virginia Commission Should Have Considered Employment-Related Risks of Assault
Where an overnight attendant at a rest area was stabbed in the face by a former co-worker whose motive could not be determined—the assailant committed suicide later the same day—the attendant might still prevail on his workers’ compensation claim if he could show that the employment placed him at a greater risk of assault than the general public, held the state’s Court of Appeals [King v. DTH Contract Servs., 2019 Va. App. LEXIS 26 (Feb. 5, 2019)]. The Court acknowledged that the attendant had the burden of showing that his injuries arose out of and in the course of the employment, but noted the Commission had failed to consider the entire range of possibilities.
Background
A former co-worker stabbed George King in the face, blinding him, while King was working alone as the overnight attendant at a rest area for DTH Contract Services, Inc. (“employer”). The assailant committed suicide later the same day, and his motives for the assault were never discovered. A divided Workers’ Compensation Commission denied King’s claim, reasoning that because King knew his assailant, the attack was not random, and since the motive for the attack was unknown, King had failed to prove that the injury arose out of a risk of his employment. King appealed.
Injury Might Arise in Either of Two Ways
King argued in relevant part that when an assailant’s motive was unknown, the victim could still prove the assault arose out of his employment if the employment placed him at a greater risk of assault than the general public. The Court essentially agreed, stressing that King could show the injury arose from the employment in one of two ways:
- Showing the assault resulted from an increased risk of assault created by the employment, or
- Proving his employment motivated assailant to attack.
If the assailant’s motives were personal, the claim would be defeated under either theory, noted the Court. It added that while the assailant’s suicide foreclosed the second possibility, King could still utilize the first theory to establish his claim.
Other Evidence
The Court observed that the evidence showed that King—who was permanently blinded by the assault—and the assailant had never worked the same shifts at the same rest area. The assault took place more than a year after the assailant quit his job without prior notice. The parties stipulated that the assailant had been using drugs and “was disturbed” before the assault. A police officer testified the rest area had a history of problems and that on at least one occasion an undercover officer had been assaulted there. The Court noted that although it was not definitive, the officer testified it was possible that the risk of crime in rest areas was higher than in other areas open to the general public.
Unknowable Motives are Not a Bar to Recovery
The Court reasoned that when the assailant’s motive is unknowable, such as when the assailant is unknown, the claimant does not have to affirmatively establish that the assailant’s motive is not personal. Unknowable motives of an assailant are not, by themselves, a bar to consideration of other factors by which a claimant may prove that the injury arose out of a risk of the employment.
Here, the Commission held that because King knew his assailant, King could only establish the assault arose out of the employment if he could prove the assailant was motivated by King’s job. It concluded that if the assailant and King know each other, the assault between them could not result from an increased risk of assault. The possibility of a random assault, even against someone the assailant knows, means King could establish the assault arose out of the employment when the employment increased the risk of assault. The case was remanded for such a determination.