In an unusual case that illustrates Virginia’s restrictive “arising out of the employment” test, a state appellate court yesterday affirmed the denial of workers’ compensation benefits to a former police officer who sustained injuries when she slipped on wet grass and almost fell as she, other officers, and a crime suspect ran toward shelter during a sudden, heavy downpour of rain [Conner v. City of Danville, 2019 Va. App. LEXIS 94 (Apr. 23, 2019)]. Reiterating that Virginia uses what it terms the “actual risk” test (similar to what some jurisdictions call the “increased risk” test [see Larson’s Workers’ Compensation Law, §§ 3.03, 3.04]), the court observed that the officer wasn’t pursuing a fleeing suspect; she was merely trying to get out of the rain. Her injury was the result of an Act of God, not a risk of her employment.
On the day of her injury, Conner and other officers had been conducting surveillance at a duplex. During that surveillance, the officers located a homicide suspect and began to question him on an exposed porch. Evidence indicated that the weather changed abruptly during the interview. The wind picked up significantly and it began to rain heavily and to hail. The officers and the suspect decided to run around to the other side of the duplex and in doing so, Conner slipped on the wet grass and almost fell.
The Commission, with one commissioner dissenting, affirmed the deputy commissioner’s decision denying benefits, based on Conner’s exposure to an Act of God. The Commission agreed that Conner’s work did not require her to perform job duties in a hazardous weather situation. Rather the evidence showed that Conner had ceased and suspended her work-related tasks at the time of her injury.
Actual Risk Test
Citing a number of earlier decisions, the Court reiterated that Virginia uses the “actual risk” test, which requires that the employment expose the worker to the particular danger from which he or she is injured. Conner argued that the risk of slipping on wet grass was an employment-related risk because her employment duties brought her to the duplex and detain the suspect while they were all subjected to the violent storm.
The Court said the Commission’s findings were supported by substantial evidence. The Court stressed that despite Conner’s characterization of the suspect as being “detained,” the suspect was not under arrest or actually in custody, which could necessitate their following him quickly off the porch to keep him in custody. Moreover, according to Conner’s own testimony, they did not continue interviewing the suspect once they left the porch. In addition, as the deputy commissioner noted, in Conner’s deposition testimony, she stated that her purpose in leaving the porch was to “get out of the weather,” rather than to chase the suspect or to accomplish an employment-related task.
As noted in Larson, Virginia’s stance on this issue is not in sync with the majority of American jurisdictions. Virginia gives lip service to the “actual risk” rule, but actually employs what amounts to an “increased risk” rule. Slipping on wet grass would be understood in many states to be an “actual risk” of the police officer. That the officer slipped shows just how actual a risk she faced.