Whitt & Del Bueno, Attorneys at Law

Leaders in defending workers' compensation claims.


You Be the Judge!

By Mike Del Bueno

“Mrs. Jones”, we’ll call her, works for a company that cleans up abandoned outdoor sites. One day, Mrs. Jones is at a site cleaning up for the company. At one point, she is on her way to the company’s truck to get garbage bags. The next thing that Mrs. Jones knows, she is on the ground and bleeding from her head. Mrs. Jones has no recollection of what happened in between the time that she was walking to the truck to get the garbage bags and being on the ground with her head injury. There are no witnesses to what happened to Mrs. Jones, but a doctor thinks that Mrs. Jones’ head injury is consistent with a fall from a height, such as a truck. The real question: Is this scenario compensable under Virginia workers’ compensation law?

Insurance companies may be relieved to hear that at least right now, the answer is no. The story about Mrs. Jones is a real case our firm won recently at the deputy Commissioner level (it may be taken up for appeal by the injured employee’s attorney). We defended the claim mainly on the ground that what happened to Mrs. Jones was an unexplained accident, which is not compensable under Virginia law. The deputy Commissioner agreed and denied the claim.

By its very name, an accident is “unexplained” because there is no, or insufficient, evidence to determine how and why the accident happened. An unexplained accident is not compensable because the injured worker cannot prove that a risk of the employment caused the accident.

In Mrs. Jones’ case, since she had no memory as to what happened to cause her head injury, and no witnesses who saw what happened to her, she was unable to prove how and why she was injured, and that the injury resulted from a risk of her employment. Even the doctor’s opinion was not enough in that regard. Even if we assume, for argument’s sake, that Mrs. Jones did fall off the truck, there was no evidence as to what caused her to fall off of the truck. In order for her accident to be compensable, Mrs. Jones needed to prove that if she indeed fell off the truck, a risk of the employment, such as a slippery or icy step, for example, caused the fall. However, Mrs. Jones’ evidence fell short of that mark as she never proved that she actually fell off the truck and never proved what caused her head injury.

This is not the first case that our firm has won on the unexplained accident defense. We can certainly help you defend these types of cases – give us a call if you have such a case or want more information about unexplained accidents.