Whitt & Del Bueno, Attorneys at Law

Leaders in defending workers' compensation claims.


Whitt and Del Bueno Score Big Win at Virginia Court of Appeals

January 8, 2008

Ralph Whitt successfully obtained on December 18, 2007 a reversal by the Court of Appeals of Virginia from an award entered by the Virginia Workers’ Compensation Commission on behalf of the claimant in the case of Rose LaFleur v. Rivanna Water & Sewer Authority and Virginia Municipal Group Self-Insurance Programs. The Commission, in a divided opinion, had previously awarded benefits to the claimant for injuries allegedly suffered from lightning that allegedly struck the water treatment plant where she worked. However, the Court of Appeals, in a unanimous opinion, determined that the Commission applied the wrong legal standard to the case, and reversed the Commission’s opinion.

The Court recognized that the legal standard to be applied in cases involving natural disasters, and specifically here, lightning strikes, is that the claimant must prove that the nature of the employment exposed her to a particular risk of injury by lightning not usually faced by a member of the general public. This burden of proof follows the “actual risk” test applied in Virginia, as opposed to the “increased risk” test, which is not applied in Virginia. The “increased risk” test is one of physics, and not law, whereby the analysis is simply whether the work conditions, such as height above the surrounding area, nearness to trees or other tall structures, and/or nearness to metallic objects or water, enhanced the probability of injury from lightning.

The Court stated that, although the Commission had specifically noted that Virginia follows the actual risk test, it erred by applying instead the increased risk test in two specific findings – one, that the physical characteristics of the water and sewer plant had a propensity to receive a lightning strike, and two, that the large amounts of water, pipes and metal at the plant created a special risk by the greater likelihood of conduction of electrical current (this was merely a restatement of its “propensity” finding). In short, the Commission incorrectly focused upon the physical aspects of the plant, itself. That kind of analysis was the increased risk test, and not the actual risk test.

Furthermore, the Court went ahead and applied the actual risk test to the evidence in the case and found that it fell short of establishing the causal link needed for the claimant to prevail. The Court was troubled by the fact that only one system of pipes at the plant was made of metal, and that system of pipes carried wastewater away from, and not into, the plant, and the claimant was not nearby to those metal pipes at the time of her alleged injury. The Court expressed additional concern with the claimant’s inability to state with any specificity whether she was touching a faucet (or, if not, how far away she was from the faucet) and, whether water was actually flowing from the faucet at the time of her alleged injury. Finally, lightning had not struck the plant in forty years before this alleged occurrence, so the claimant could not establish that lightning was either a continual or frequent exposure hazard at the plant.