Duty to Defend the “Negligent” Assault and Battery Premises Liability and Criminal Acts of Third Persons

PREMISES LIABILITY hall that is in a rough inner city neighborhood and you become aware of assaultive crimes taking place on your premises you AND CRIMINAL ACTS have a duty to increase security to better protect your invitees. This may mean increasing the number of bouncers, installing OF THIRD PERSONS security cameras, making sure that bartenders and managers do By: Steven W. Bancroft, Esquire not allow alcohol to be served to intoxicated individuals and to immediately contact the police if trouble starts. It is important to look at the type of establishment that is For many years the Virginia Supreme Court has firmly in question and this becomes readily apparent in the Virginia held that if a third person comes on the premises of another and Supreme Court’s decision in Dudas v. Glenwood Golf Club, Inc., Volume 2, Issue 3 June 2005 commits a criminal act that causes injury or harm to a person the 261 Va. 133 (2001). In Dudas, a third party criminal came on owner and occupant of the premises is typically not liable. In the premises and shot an individual who was lawfully on the Gulf Reston, Inc. v. Rogers, 215 Va. 155 (1974), the court adopted premises playing golf. The court cited Wright and found that the the Restatement view, that a person owes no duty to control the narrow exception did not apply here since Glenwood Golf Club DUTY TO DEFEND THE “NEGLIGENT” ASSAULT AND BATTERY conduct of a third person in order to prevent physical harm to was not the type of business that attracted assaultive crimes and another, unless a special relationship exists giving rise to the right there was no showing that the golf club had knowledge or notice By: Dawn E. Boyce, Esquire of protection. When analyzing a case in this area it is important that criminal acts were about to occur or that anyone was in to first determine whether there is a special relationship between imminent probability of harm. In making this determination the the owner and occupant of the premises and the individual who Virginia Supreme Court applied a reasonable person standard egligence allegations in cases involving assault and In determining the applicability of the exclusion, the court lawfully enters your property and is injured. The general duty N and held that the golf course owner should not have reasonably battery often trigger a duty to defend even in cases with facts noted generally the distinction between an insurer’s duty to of all owners and occupants is to use ordinary care to keep the known an assault was imminent because the last act of criminal for which coverage is suspect. In Penn-American Insurance defend and duty to indemnify in Virginia. The courts in Virginia premises reasonably safe for normal use by your invitees. violence on the premises was over a year before the shooting. Company v. Gregory Coffee, et al., Action No. 2:02cv632 consistently have held that the insurer’s obligation to defend In Wright v. Webb, 234 Va. 527 (1987), the court held that Similarly, in Yuzefovsky v. St. John’s Wood Apartments, 261 (E.D. Va. 2005), the court held such allegations are not always is broader than its obligation to pay. Brenner v. Lawyers Title an owner of a motel whose method of business does not attract Va. 97 (2001), the court considered liability of a landlord that had enough. Insurance Corp., 240 Va. 185, 395 S.E.2d 100 (1990). The or provide for a climate of assaultive crimes does not have a told a potential lessee that the building was patrolled by police on obligation to defend arises whenever the complaint against The court interpreted a policy of insurance delivered in duty to take additional measures to protect an invitee against a a regular basis and that no crimes had occurred on the premises the insured alleges facts and circumstances, some of which, if possible criminal assault unless it knows that criminal assaults Virginia which included an exclusion for bodily injury, property for a long time. The representations by the landlord were untrue proved, would fall within the risk covered by the policy. Id. at are occurring and that there is an imminent probability of harm to and the tenant, after he signed the lease, was assaulted when he damage, personal injury, advertising injury, medical payments 189. Only when it is clear that there is no liability under the invitees. In the Wright case, the court held that even though there was walking in the apartment complex common area. The court or any other damages resulting from assault and battery or insurance contract for any judgment that would be obtained were a few prior crimes in the parking lot they were insufficient held that the landlord’s misrepresentations were not sufficient physical altercations that occur in, on, near or away from the based upon the allegations, does the insurance company have to impose an additional duty on the owner of the hotel to increase to create additional duties on the part of the landlord. The court insured’s premises. The exclusionary language was examined no duty to defend. Travelers Indemnity Co. v. Obenshain, 219 security or to give invitees additional protection. held that an owner or an occupant of land is not an insurer of in light of the following facts. On April 5, 2001, two patrons Va. 44, 46, 245 S.E.2d 247, 249 (1978). a tenant’s safety. The landlord’s pre-lease statements did not of a restaurant and bar in Chesapeake, Virginia, drank heavily Over the last eighteen years the Virginia Supreme Court has The courts have cautioned: establish liability and the plaintiff failed to carry his burden in and despite obvious intoxication and hostile and aggressive found a number of exceptions to the rule set forth in Wright proving that the landlord did not use ordinary and reasonable and it is important to keep these exceptions in mind to evaluate care to keep the premises reasonably safe. conduct toward others, continued to be served. Four employees “While the duty to defend is, in the first whether or not liability may attach to a particular incident confronted the patrons and attempted to remove them from instance, to be determined by the allegations of the involving a criminal act by a third person. First, you must look While the law has been very favorable to owners and the restaurant. During the confrontation, notice of motion, and if those allegations leave in for this special relationship which the courts have now expanded occupants in this area for many years a number of circuit physical blows were exchanged. Eventually, doubt whether the case alleged is covered by the to include landlord/tenants and employer/employees. If the court judges are beginning to find that the special relationship the patrons left the building and went into policy, the refusal of the insurance company to special relationship is found the owners and occupants of land exists between the plaintiff and defendant and allow for a jury the parking lot. Some of the employees to consider whether or not three or four prior criminal acts are defend is at its own risk; and if it turns out need to react appropriately if they become aware of criminal followed, and a violent fight erupted. At acts taking place on their premises that put others lawfully on enough to create additional duties on the part of owners and on development of the facts that the case is the premises in danger. You also have to analyze the type of occupants. The current trend is clearly leaning towards relaxing this point, the plaintiff left the restaurant. covered by the policy, the insurance company business that is being operated to determine whether or not the rules set forth in Wright and allowing for more of these cases The two intoxicated individuals jumped into is necessarily liable for breach of its covenant the business itself may attract individuals who are likely to to get to a jury for decision. a car and began to drive away. As they drove to defend...” commit crimes. For example, if you are an owner of a pool away, the restaurant employees hit the vehicle and Lerner v. 8 its occupants with fists and metal pipes. The S a f e c o , intoxicated driver lost control of the vehicle and 219 Va. Inside struck the plaintiff. 101, 109, Trichilo, Bancroft, McGavin, Horvath & Judkins, P.C. PRESORTED 245 S.E.2d 249 Assault & Battery...... 1 The injured person filed suit seeking 3920 University Drive • Post Office Box 22 FIRST-CLASS (1978), quoting U.S. POSTAGE compensatory and punitive damages against the London Construction Defects...... 3 Fairfax, Virginia 22030-0022 PAID restaurant. Although the complaint was amended to add the Guarantee Co. v. White & FAIRFAX, VA specific employees, the claims against the restaurant were Permit No. 6241 Brothers, 188 Va. 195, 199- Defense of Carpal Tunnel...... 5 based primarily on negligence. The plaintiff alleged negligent 200, 49 S.E.2d 254 (1948) acts which ultimately resulted in the loss of control of the (duty to defend extends to Facts & Funnies...... 7 vehicle by the other patrons; negligence in failing to protect occurrence so duty to defend the plaintiff from unruly, aggressive, and dangerous acts due to both compensatory and Horseplay?...... 4 consumption of alcohol; negligence in allowing the intoxicated punitive damage claims). patrons unrestricted access to the premises; negligence in Legislative Summary...... 6 allowing the patrons to remain on the premises; and negligence Because in the case at in allowing the employees to pursue the patrons when they left. issue an exclusion had to be Premises Liability...... 8 Negligence in failing to suppress the fight and in hiring, training and supervision of employees was also alleged. Continued on page 6 Workers’ Comp Corner...... 2 Workers’ employment. This Bill is significant because police, fire, and other By: municipal employees may attempt to extend its provisions to all Compensation Benjamin J. Trichilo, Esquire first responses, even where an emergency has not been declared. Corner HB2775. Commission Now Authorized to Require Professional Employer Organization to Guarantee Payment of Workers’ Compensation Benefits. Va. Code §65.2-803.1 now authorizes the Virginia Workers’ Compensation Commission to require any business entity owning or controlling a professional employer NEW COMPENSATION RATES organization to guarantee performance of all obligations under the Virginia Workers’ Compensation Act. A professional employer Due to the rise of frivilous EFFECTIVE JULY 1, 2005 organization is defined under Va. Code §65.2-101 as any person that enters into a written agreement with a client company to litigation, manufacturers can provide professional employer services. HB1862. no longer expect that common The new maximum compensation rate effective July 1, 2005 sense will prevent injury. will be $736.00 per week. This equates to $38,272.00 per year, or Commission Authorized to Access Civil and Criminal $368,000.00 during the statutory entitlement period of five hundred Penalties Against Professional Employer Organizations. Under weeks. Most claims are subject to the five hundred week maximum, the amendments to Va. Code §65.2-805 and §65.2-806, the The following are ACTUAL except where the injured worker qualifies for permanent and total Commission is now authorized to assess civil and criminal penalties package warning labels: disability under Virginia Code §65.2-503(C). against professional employer organizations that failed to guarantee payment of Workers’ Compensation benefits as required by Va. Baby stroller warning: The minimum compensation rate is $184.00 per week. Where Code §65.2-803.1. The amendments to Va. Code §65.2-805 benefits are awarded, the minimum applies. However, the claimant authorize civil penalties between $500.00 to $5,000.00, while the Remove child before folding. cannot receive more than his average weekly wage at the time of amendment to Va. Code §65.2-806 provides that an employer who the injury. In other words, if the claimant was earning $100.00 per knowingly and intentionally fails to comply with its obligations to Household iron warns: week at the time of injury, the compensation rate would be $100.00 provide insurance is guilty of a Class II Misdemeanor. HB 1863. Never iron clothes while they per week, and not $184.00. 2. Bills that did not pass. are being worn. The rate for cost of living benefits effective October 1, 2005 will House Bill 1701 would have amended Va. Code §65.2-602 be 3.35%. The Virginia Workers’ Compensation web site offers a and §65.2-701 to extend the statute of limitations wherever the Warning on underarm deodorant: convenient program that can be downloaded to calculate the amount employer or insurer pays medical expenses and either knew, or of cost of living or disability benefits that are due for any specific Do not spray in eyes. should have known, that those expenses related to the body part or period. The program can be accessed through the following web injury that had been denied. For example, if the claimant signed an site: Cardboard car sun shield that keeps agreement relating to a neck injury, but submitted bills for an arm http://www.vwc.state.va.us/rules.htm injury that were paid by the insurer, then the statute of limitations sun off the dashboards warns would be extended by the employer or insurer’s payment of the Do not drive with sun shield in place LEGISLATIVE DEVELOPMENTS. expenses for the arm injury. There were concerns that passing 1. Bills that passed. this Bill would discourage employers and insurers from voluntarily An electric cattle prods warns: paying medical expenses. This Bill may reappear next year. Use of Dealer Motor Vehicles. Va. Code §65.2-101 has For use on animals only been amended to provide that any injury, disease, or condition House Bill 2056 would have amended Va. Code §65.2-101 resulting from the use by an employee of a dealer motor vehicle and §65.2-502 by denying any type of disability benefits to illegal In the manual of a chainsaw: for commuting to or from work or any other non-work activity is aliens. Currently, illegal aliens are entitled to medical benefits, and Do not attempt to stop the blade not compensable. The Bill was intended to permit continued use benefits for total disability only. The Bill passed the House, but of demonstrator vehicles by employees of car dealerships, under was defeated in the Senate. There were concerns that by denying with your hand. the rationale that car dealers will restrict the use of such vehicles if disability benefits to illegal aliens, that those parties would then be employees are covered under the Act. HB1728 and SB1215. eligible to file civil suits against the employer. Under current law A TV remote controller warns: (Va. Code §65.2-307), an employee who receives benefits under Extension of Statute of Limitations for September 11, 2001 the Virginia Workers’ Compensation Act is barred from filing suit Not dishwasher safe. Rescue Workers. Va. Code §65.2-406 has been amended to allow against his employer for the same injury. employees suffering from diseases attributable to 9/11 rescue and relief efforts additional time for filing an occupational disease One proposal that was defeated before it was formally claim. Before the amendment, the statute required that the claim introduced is a Bill that would have extended the requirements Litigation ReportTM be filed within five years from the date of last injurious exposure. of HIPAA (Health Insurance Portability and Accountability Act) to That requirement is now eliminated, and the only limitation is that the Virginia Workers’ Compensation Act. Under current law, the Quarterly Publication the claim be filed within two years from the date that the employee privacy requirements of HIPAA do not extend to Virginia Workers’ Published by: www.vadctriallaw.com learns of the disease. HB2775. Compensation cases. The proposal, which would have significantly Trichilo, Bancroft, McGavin, Horvath & Judkins, P.C. increased costs of obtaining medical records in Workers’ email: Coverage For First Responders During State of Emergency. Compensation cases, did not have a legislative sponsor this year. 3920 University Drive Letters to the Editor: This Bill amends Va. Code §65.2-103 by providing that where a state Post Office Box 22 Melissa H. Katz, Esquire Nevertheless, with continuing concerns over patient rights and Fairfax, Virginia 22030-0022 [email protected] of emergency is declared by the Governor, first responders traveling privacy, a new attempt may be initiated at the next session of the from home or another location are acting within the scope of their 703.385.1000 • 703.385.1555 fax 2005 All Rights Reserved 2 General Assembly. 7 TRICHILO, BANCROFT, MCGAVIN, HORVATH & JUDKINS, P.C. (703) 385.1000 • Fax (703) 385.1555 • www.vadctriallaw.com LEGISLATIVE continued from page 1 INSURANCE COVERAGE SUMMARY 2005 applicable to avoid coverage under the policy, the court FOR CONSTRUCTION DEFECTS noted that the language had to be construed most strongly By: Stephen A. Horvath, Esquire against the insurer. See Johnson v. Insurance Co. of While this is not a comprehensive Northern America, 350 S.E.2d 616, 619 (Va. 1986). If the indirectly performing work; or (5) property which must be listing of the new laws that will take effect language of an exclusion is unambiguous, the words are claim against a general contractor or subcontractor A restored, repaired or replaced because the work performed on on July 1, 2005, we have set forth some given their ordinary meaning; however, if the language for defective construction work may present a question as to it was performed incorrectly. new laws which you may find noteworthy in addition to the laws of the exclusion is subject to multiple interpretations, the whether or not the claim is covered by a Commercial General language is construed in favor of coverage or indemnity we referenced in our last newsletter. Liability policy of insurance (CGL policy). When sued The one exclusion that causes the most questions reads as and against limitation of coverage. See United Services CIVIL REMEDIES AND PROCEDURES: for defective conditions in a house or commercial building, follows: Auto Assoc. v. Webb, 369 S.E.2d 196, 198 (Va. 1988). contractors and subcontractors look to insurance companies to HB 2010 - Provides that the rate of interest on a judgment is that The burden of proof was on the insurer to prove that the “Damage to your Work. Property damage to your rate in effect at the time of entry of the judgment, and is not pay their legal fees and for indemnification. The lawsuits and assault and battery exclusion applied. claims present questions as to interpretations of portions of the work arising out of any part of it and included in affected by any subsequent changes to the statutory rate of interest. the products completed operations hazard. This Applying these principles, the court held that even policy and exclusions. The interpretation of the coverage of Amends Code Section 6.1-330.54 (The present judgment rate of exclusion does not apply to damaged work or though the plaintiff attempted to couch the allegations in the policy is frequently aided by keeping in mind the purpose interest is 6%; the legislature decreased it from 9% last year). the work out of which damage arises which was terms of negligence, the exclusion clearly applied. The of the policy and the scope of the coverage. performed on your behalf by a subcontractor.” SB 827- Requires that all subpoenaed documents, rather than only plaintiff alleged negligent acts which purportedly caused those concerning the other party, be made available to the other One of the key principles of liability insurance is that the physical altercation or failed to prevent the physical faulty workmanship alone is not insurable. Courts throughout Because of the exception for work by subcontractors, the party, upon that party’s written request, except for good cause altercation. Either way, the precipitating cause of the scope of this exclusion is the subject of much debate. Some shown. Amends Code Section 8.01-417. the Commonwealth of Virginia, and the country, are almost injuries was the assault and battery, and therefore, there uniform in their finding that an insurance policy is not a courts find this exception to the exclusion creates coverage, SB 1123 - Allows a plaintiff, in circuit court cases, to ask the was no basis for coverage under the policy and no duty to performance bond, and the purpose of the policy is not to and others do not. For example, the United States District defendant for a waiver of service of process in lieu of official defend. cover poor workmanship. There is a distinction between an Court for the Eastern District of Virginia in Richmond in Travelers Indemnity Company of America v. Miller Building service and mandates that a defendant respond so as to avoid any The case is important because it highlights the “accident of faulty workmanship” which is both foreseeable Corp. Civil Action Number 3:03CV441 (December 27, unnecessary costs of service of process. Amends and adds to practice of alleging negligence to obtain coverage for and controllable by the contractor, and, thus, not covered 2003) held that the use of fly ash material used as fill for various provisions of Title 8.01. otherwise excluded acts. Each motion for judgment under the policy, and the “faulty workmanship which causes a shopping center, which expanded, causing the shopping or complaint should be reviewed closely to determine an accident”. If these principles are kept in mind, the INSURANCE: center building to crack and crumble, was a covered event whether, under the four corners of the insurance policy interpretation of the policy is much easier. HB 2410 - Requires insurers to provide no less than 90 days’ under a policy of insurance. The Court focused on the and the underlying complaint, the allegations, if proved, notice of a cancellation or non-renewal of, or a premium increase A CGL policy covers claims for personal injury or exception to the exclusion as creating coverage, and the fact would fall within a risk covered by the policy. of more than 25% for, a medical malpractice insurance policy. If property damage for which the contractor “becomes legally that the subcontractor used the fly ash, but did not focus on cancellation or non-renewal of such policy is for nonpayment of obligated to pay” as a result of an “occurrence”. An the question as to whether or not there was an “occurrence”. the premium, the cancellation or non-renewal will be effective not occurrence is defined as an accident. An accident is an event The federal court in the Western District of Virginia in less than 15 days from the date of mailing or delivery of the notice. that takes place without one’s foresight or expectations. In Hotel Roanoke Conference Center v. Cincinnati Insurance, For all other liability insurance policies, 45 days’ notice of a 25% continued from page 4 any aggravation of the injury, construing the CGL policy, a number of courts have found that 303 F.Supp.2d 784 (W.D. Va. 2004) reached the opposite increase in the premium, rather than in the filed rate is required. the performance of the contract and work under the contract is conclusion, and found that there was no coverage under a CGL Amends Code Section 38.2-231. including the subsequent fracture, was not generally not an accident. The contractor includes the cost for policy, when the subcontractor used defective fill material. COURTS: compensable warranty work or repairs as part of his contract, and, thus, the items of damages are not an accident. Another frequent problem in the interpretation of a policy HB 2118 -Makes the written reports or records of blood alcohol because the of insurance occurs when the damage occurs over a long tests conducted upon persons receiving medical treatment in a claimant As a general rule, substandard period of time, during which there were multiple policies of hospital or emergency room admissible in evidence in any civil had actively performance or non-conforming insurance. Unfortunately, in Virginia, there is no controlling proceeding as a business records exception to the hearsay rule. participated in performance is not “an occurrence”, precedent on the issue of how coverage is triggered. Four The reports or records may be disclosed in accordance with federal horseplay. which will trigger the application of a rules have been adopted by different courts. First is the regulations, without consent or authorization. The protections CGL policy, unless that substandard “exposure rule” which finds that the policy which was in against civil liability for those taking blood and conducting tests The lesson from these cases is that joking or pranks at performance causes injury to person, or place when the first exposure to the damage occurred is the now applicable in criminal proceedings are extended to civil property damage to property not part of policy that controls. Second is the “damage-in-fact rule,” and proceedings. Amends Code Sections 19.2-187.02 and 8.01-413.02. the job site can have very serious and adverse consequences even the contract. the trigger date is when the damage or injury-in-fact actually occurs. Third, is the “manifestation rule” which is that the MOTOR VEHICLES: when there is no intention to Even if there is an accident, there applicable policy is the one in place when the damage is first SB 1260 - Authorizes a liability insurer to limit its liability, under harm another. The worker who are a number of exclusions, which are manifest or discoverable. Finally, under the “continuous an insurance policy covering bodily injury or property damage, for retaliates to the prank of another worker generally designed to exclude claims trigger rule,” all policies in the risk from exposure through injury or damage resulting from any one accident or occurrence to runs the risk of being denied Workers’ for property damage or defective the manifestation apply. That is, the trigger rule applies in the the liability limits for such coverage set forth in the policy for any Compensation benefits for what product. The insurance policy excludes continuous seepage or toxic exposure cases. accident or occurrence or for any one person. The measure also otherwise would have been a legitimate claims for property damage to property provides that if an accident or occurrence involves more than one claim. A longstanding friendship can be which the contractor (1) owns, rents While the interpretation of a CGL policy involves defendant who is covered by the policy, the plaintiff may recover ruined. Avoid initiation of or participation in rough or or occupies; (2) sells or gives away; a careful reading of the particular allegations against the the per person limit of the policy against each defendant, subject to boisterous pranks at the job site. The individual who (3) property which is in the custody contractor or subcontractor, and the potential exclusions the policy’s per accident or occurrence limit. Amends Code is denied their Workers’ Compensation benefits will of the insured which is to be installed that might apply, if one keeps in mind the general purpose Section 38.2-2204. not find the prank to be amusing. as part of a construction project; (4) of the CGL policy to not act as a performance bond, the part of the property upon which interpretation of the policy is much easier. the contractor is directly or 6 3 TRICHILO, BANCROFT, MCGAVIN, HORVATH & JUDKINS, P.C. (703) 385.1000 • Fax (703) 385.1555 • www.vadctriallaw.com HORSEPLAY AT WORK - NOT A JOKING MATTER DEFENSE OF CARPAL TUNNEL SYNDROME By: Benjamin J. Trichilo CLAIMS IN VIRGINIA – was not directed against the employee as part of the ractical jokes and horseplay can be a source EARLY INVESTIGATION IS KEY. P employment relationship, and was not in furtherance By: Joseph C. Veith III of amusement, but at the workplace are more likely to of the employer’s business. Although the claimant was produce a large headache for someone. Under Virginia denied Workers’ Compensation benefits, the court upheld While carpal tunnel syndrome may be held to be a compensable condition under the Virginia Workers’ Compensation Act, law, workers who sustain a compensable a civil suit against the employer. Virginia Code §65.2-400, 401, early acceptance of compensability in carpal tunnel syndrome cases is almost always a mistake, even work-related injury are protected by where medical evidence is received indicating the existence of a causal relationship between the claimant’s employment and the con- the Workers’ Compensation Workers who actively participate in horseplay at the dition. Both in terms of the statute itself, as well as developing case law in this area, highlight the difficult burden of proof placed upon Act. However, one of the workplace face significant adverse consequences. Even if claimants and opportunities for successful defense of these claims that arise when there has been a thorough and well directed initial conditions for compensability is severely injured, their claims for workers’ compensation investigation. that the injury must arise out of benefits will be denied. Three relatively recent cases the employment. This means that exemplify this point. The claimant in Crowder v. Jackson Under §65.2-401 of the Virginia Workers’ Compensation Act, a claimant, in order to prevail in a carpal tunnel syndrome case, is there must be a rational “causal River Enterprises, Inc., VWC File Number 211-37-35 required to prove by clear and convincing evidence that the disease: (1) arose out of and in the course of the employment; (2) did not connection between the conditions (February 6, 2004) pinched another employee and then result from causes outside of the employment; and (3) is characteristic of and caused by conditions peculiar to the employment. under which the work is required to be took his hat “like he always does.” The claimant was It should be noted that the “clear and convincing evidence” standard of proof is higher than that normally applicable in workers’ performed and the resulting injury.” injured when his fellow worker tripped him, causing him compensation cases in which a mere preponderance of the evidence is usually sufficient. In addition, both the Court of Appeals and Bradshaw v. Aronovitch, 170 to fall. In denying Workers’ Compensation benefits, the the Workers’ Compensation Commission have been fairly strict in requiring that a claimant prove all elements set forth in §65.2-401. Va. 329, 335, 196 S.E.684, Virginia Workers’ Compensation Commission held that In recent years, two specific areas of proof have been the subject of a great deal of litigation. 686 (1938). An injury the injury did not arise from a risk of the employment, but First, while the statute does not require that a single source of the disease be pinpointed, it does require that the claimant prove sustained by a worker from the purely personal actions of a co-worker. that his or her employment is the primary source for the development of the disease. Lee County School Board v. Miller, 38 Va. App. who actively or willingly 253, 563 S.E. 2d 374 (2002). Thus, where a claimant can only show that her employment is a contributing factor to the development participates in horseplay In another case, Mann v. United Parcel Service, of carpal tunnel syndrome, the requisite burden of proof has not been met. See Hardesty v. S.M. Durlak, Inc., VWC File No. 206-06- does not arise out of the Inc., VWC File Number 210-40-44 (August 22, 2003), the claimant and a co-worker were discussing how 78 (August 26, 2002). The Commission has even held that a medical opinion to the effect that the claimant’s employment was a employment and is not compensable. “definite contributing factor” and a “major contributing factor” was not sufficient to meet the claimant’s burden of proof where the damage occurred to the co-worker’s car and boat during a weekend fishing trip. The co-worker blamed the claimant doctor did not wish to affirm that it was “the primary source” of the condition. Radcliffe v. Giant Food, Inc.,VWC File No. 204-00-06 What is horseplay? The Virginia Workers’ (March 11, 2003). Compensation Commission defines it as “rough or and gently nudged him in the chest. The claimant boisterous play or pranks.” Johnson v. County of responded by grabbing the co-worker’s shirt. The co- Second, it is now well established that a claimant who fails to present evidence excluding non-employment related outside factors Henrico, VWC File Number 193-04-86 (September 2, worker then grabbed the claimant, attempting to lift him as possible causes of the disease will not be able to prevail. Lee County School Board v. Miller, supra.; Steadman v. Liberty Fabrics, 1999), aff’d., Court of Appeals Record Number 2266- off the ground. The attempt was unsuccessful, and the 41 Va. App. 796, 589 S.E. 2d. 465 (2003). In the Steadman case there was no medical evidence excluding outside factors. The Court, 99-2 (January 18, 2000). Horseplay is distinguished claimant fell forward, sustaining a fracture of the lumbar while acknowledging that medical evidence directly addressing this point was not always necessary, held that testimony by the from “friendly” acts among co-workers that pervade spine. claimant that she did not engage in any activity outside of her employment was not of itself sufficient to meet her burden of proof. “the common human experience of life both inside and Conversely, in a decision released on April 12, 2005, by the Court of Appeals, Giant Food, Inc. v. Marcum, Record No. 2135-04-3 After citing established precedent, the Virginia (April 12, 2005, Unpublished), the Court held that medical evidence from the claimant’s doctor to the effect that he had reviewed the outside the workplace, with no special relationship to Workers’ Compensation Commission denied the claim for the employment.” Id. For example, a worker who pats claimant’s history and concluded that there was no other probable cause for his carpal tunnel syndrome aside from his employment benefits, holding: related wrist movement, was sufficient to permit an inference that the doctor knew of the claimant’s outside activities and had excluded another on the back as a friendly greeting is not engaged those as a source for the disease. in horseplay even if there is a resulting injury. In the “Certainly, the claimant did not expect to be Johnson case, the Virginia Court of Appeals found that a injured. However, we agree with the Deputy Thus, under Virginia law, in order to prevail in a carpal tunnel syndrome case, a claimant must show by clear and convincing friendly slap on the back by one police officer to another Commissioner that the evidence shows he evidence that his or her employment is the primary cause of the carpal tunnel syndrome, and must exclude other possible sources as co-worker, without any intention of causing harm, did was a willing participant in the horseplay and causes of the disease. A mere medical statement of causal relationship is not sufficient. This underscores the need for early investigation not constitute horseplay, but was a friendly greeting. therefore is ineligible for benefits.” that is directed towards developing evidence of other possible causes of the carpal tunnel syndrome condition. Nevertheless, the injury resulting from the slap on the The claimant in Dunbar v. RLF Iron Erectors, Inc., Carpal tunnel syndrome is caused by pressure on the median nerve where it passes, along with nine tendons, through the carpal back was not compensable because it arose from a Record Number 2451-00-3 (February 6, 2001) sustained a tunnel in the wrist. The fact of the matter is that, in most cases, the cause of carpal tunnel syndrome is unknown. Any medical personal greeting, and not from a risk of the employment. compensable injury when an I-beam rolled onto his foot at condition, however, that causes either swelling in the wrist or inflammation of the tendons within the carpal tunnel can lead to the A more extreme example is provided by Richmond work. Following the injury, the claimant went to a motel development of the disease. Such conditions include obesity, water retention, hypo-thyroidism, diabetes, arthritis, as well as hormonal Newspapers, Inc. v. Hazelwood, 249 Va. 369, 457 S.E.2d with several co-workers and began drinking beer. Another changes associated with both pregnancy and menopause. As such, investigation of any carpal tunnel syndrome case should include the taking of a detailed medical history in order to determine whether the claimant has other medical conditions that might be a cause 56 (1999). The claimant in that case was a journeyman worker offered to drive the claimant to the hospital to of the development of the condition. The claimant’s primary care physician should be identified in order that the physician’s records pressman for Richmond Newspapers. There was a have his foot x-rayed. The claimant refused because he did not want to drive after he had been drinking. An can be subpoenaed if necessary to establish the existence of such other conditions. The investigation should also focus upon any other practice of “goosing” in the press room that existed for activities engaged in by the claimant outside of the employment setting in which repetitive movements of the hands is involved. Such more than forty years. The opinion suggests that the argument followed and the claimant and the co-worker “tussled.” During the tussle, they fell over onto a curb, outside activities might include different forms of sports, hobbies such as knitting or sewing, and computer use. Inquiry should also practice originated “perhaps as a means to break the be made into the claimant’s routine activities outside of the employment, including household cleaning and yard work. Finally, it tension of the ‘heat of battle’ created by the job.” and the claimant aggravated his foot injury. X-rays that were subsequently taken confirmed a fracture. should be determined whether the claimant has suffered any prior trauma to the hand, arm or wrist to which the ultimate development of carpal tunnel syndrome might be attributed. The Virginia Supreme Court held that the claimant, Even though the initial injury was compensable, the who had been repeatedly “goosed” by a co-worker, was Court of Appeals upheld a Commission finding that In summary, a claimant bears a difficult burden of proof in carpal tunnel syndrome cases in Virginia. A detailed investigation not entitled to Workers’ Compensation benefits because continued on page 6 focused upon developing evidence of outside, non-employment related sources for the development of the condition will, in most the assault upon the claimant was of a personal nature, cases, enable the defense to prevail in such cases unless the claimant can produce evidence excluding such outside sources as possible 4 causes of the condition. 5 TRICHILO, BANCROFT, MCGAVIN, HORVATH & JUDKINS, P.C. (703) 385.1000 • Fax (703) 385.1555 • www.vadctriallaw.com