Just because an airline, Reagan National or Dulles International Airport employee falls and badly injures themselves at work, they are NOT automatically entitled to the limited benefits available under the Virginia Workers Compensation Act. Unlike other sates, where almost anything that happens while an airport worker is “on the clock” are covered, Virginia workers comp law does not cover many workplace accidents, injuries and occupational diseases.
As the esteemed judge noted in a case accident lawyer Doug Landau tried last week, “Case law establishes that the burden is upon the claimant to prove an injury by accident arising out of and in the course of his employment by a preponderance of the evidence…In the present case, the sole dispute is whether the claimant’s accident arose out of his employment.” The injured airport worker had stepped over a metal plate from a maintenance garage on the tarmac, to a lower surface late at night. When he did so, with his heavy work pack on his back, his knee popped and he was in immediate pain. The orthopedic surgeon diagnosed: torn medial meniscus, bone contusion and bone bruise in the knee. Surgery was performed for medial and lateral meniscal tears a month after the on the job airport accident. Most people reading these facts would assume that the injured airport worker would automatically get workers comp. And they would be wrong.
As the judge wrote in the decision in last week’s knee injury case,
“In determining whether an employee’s injury arose out of the employment, we apply the ‘actual risk’ test, which requires that the employment subject the employee to the particular danger that brought about his or her injury…Under this test, an employee’s injury arises ‘out of’ the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury.
An injury does not arise out of the employment “merely because it occurred during the performance of some employment duty if the act performed by the employee is not a causative hazard of the employment. Simple acts of walking, bending, or turning,
without any other contributing environmental factors, are not risks of employment.”
In other words, if the airport worker’s knee had popped while simply walking in the terminal, this judge would rule against him, even though there was a sudden injury and surgery was performed. So would the other excellent Virginia workers comp judges. However, even though the airport surveillance film had been recorded over, lawyer Landau was able to get photos of the scene and mount a case to show that the claim met the criteria for a “increased risk” necessary to prevail.
The judge took the testimony of the injured airport worker, and the pictures were accepted into evidence as exhibits at trial. The Deputy Commissioner wrote, “from the pictures that are available, we conclude that the door threshold encountered by the claimant did in fact expose him to a heightened risk of injury navigating it and would require an increased degree of attentiveness to safely negotiate it. To navigate through the door, the claimant would need to walk over the metal strip extending from the bottom of the inside doorframe to what appears to be a linoleum floor, the elevated doorframe wider than a residential door frame and then down to the ground that was lower than the doorframe. As a result, we find that the stepping over a wide threshold with uneven levels constitutes an actual risk of the employment and not a risk shared by the general public, which did not have access to the shop.”
The injured Dulles Airport employee is now able to get his medical bills, wage loss and surgery paid for by the workers comp insurance company. This Prince William County judge correctly noted, “walking over the outside threshold of the shop at Dulles Airport was a risk of the employment in excess of the simple act of walking or the general public navigating an entrance threshold and the resulting injury to the left knee when he stepped down on the ground outside the shop is compensable.” This decision was rendered in record time, as discussed in the prior post. If you or someone you know or care for has been injured as the result of an airport terminal, airplane or other airport employment related accident and there are questions about what laws apply, e-mail or call us at ABRAMS LANDAU, Ltd. (703-796-9555) at once.