In a worker’s comp claim, your employer may try various tactics in an attempt to place blame on you for your work accident.
Direct violation of a safety rule is the most common willful misconduct defense raised in construction, manufacturing, and fall from height (ladder, scaffold, roof, utility pole) cases.
Both the Supreme Court of Virginia and the Court of Appeals of Virginia have set forth the elements that defendants must prove to show that the violation of a safety rule caused the work injury:
- That the safety rule was reasonable;
- That the safety rule was known to the employee;
- That the safety rule was for the injured employee’s benefits; and,
- That the employee intentionally undertook the forbidden act.
The employer and insurer do not have to prove that, knowing the safety rule, you purposefully determined to break it. Instead, they have to show that, while fully being aware of the safety rule, you intentionally performed the forbidden act.
The fact that you had knowledge of the safety rule and broke it does not, however, mean that you are automatically excluded from receiving workers comp benefits such as temporary total disability or permanent partial disability payments.
If your employer is saying that you willfully violated a safety rule, you may be able to contend this by doing the following:
1. Demonstrating that your violation of the safety rule was not the cause of your injury. For example, let’s say that your company requires you to wear a safety harness when working on a ladder of a certain height. You decide not to wear the safety harness and suffer a shoulder injury while hammering something in an awkward position. In this scenario, your violation of a safety rule would not keep you from getting workers comp because the violation did not cause or worsen the injury.
2. Proving that the employer has a history of not disciplining or firing employees who violated the safety rule. If there is evidence that the employer did not enforce the safety rule in question, then the Commission may award benefits even though your violation of the rule caused the injury. The best way to establish that the employer had a pattern of not enforcing the safety rule is through the discovery process, including interrogatories and requests for production of documents. You are looking for documentation to prove that the employer did not discipline other employees who violated the safety rule. If there was no bona fide enforcement of the safety rule, you can still win.
3. Showing that other situations drove you to violate the safety rule. The case law suggests that you may receive workers comp benefits even if you violate an OSHA safety rule, as long as you were reasonably justified in doing so.
4. Establishing that the employer did not put its safety rules in writing or provide you with a copy of the rules. If the employer did not publish a set of rules then it may have a difficult time proving that you knew of the safety rule allegedly violated. And if you did not know of the safety rule, then employer’s willful misconduct defense should fail.
5. By showing that the employer did not have any safety training or regular classes where employees were educated about the safety rules. If not then the employer may have difficulty showing that you knew about the safety rules or that they even existed. In discovery your attorney should ask for copies of attendance sheets from any safety meetings that were held to determine if you were in attendance.
6. Showing that you were unable to understand the safety rules because the employer did not provide the rules in your language. For example, if the employer gives you an Employee Safety Manual in English, but you only speak and understand Spanish, then you can likely overcome the willful misconduct defense.
If you have a Virginia work comp claim, and especially if your employing is contending willful misconduct, it’s very important to speak with an experienced work comp attorney.
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