A former co-worker stabbed a rest area overnight attendant in the face, permanently blinding him. He applied for workers’ comp benefits, but his employer denied the claim, arguing the assault didn’t arise out of employment. How did a court rule?
George King was employed as the overnight attendant at a rest area for DTH Contract Services Inc. in Virginia.
In the early morning of July 13, 2016, a former DTH worker, Khalif Privott, stabbed King in the eyes with a screwdriver while he was returning to the rest area office after making the last round of checks during his shift. Privott committed suicide hours after the assault, leaving no evidence that pointed to his motive for the attack.
King was permanently blinded by the assault and sought workers’ comp benefits. DTH denied the claim, arguing the assault didn’t arise out of employment. King appealed the decision, arguing the risk of assault was higher while working at the rest area where he was alone at night. He also presented evidence in an attempt to prove there was more crime at rest areas than the general public would experience.
A deputy commissioner denied King’s claim.
On appeal, the Virginia Workers’ Compensation Commission held that because King knew his assailant, the attack wasn’t random. The Commission ruled the assault could only arise out of employment if the assailant had been motivated directly by King’s job. It found Privott’s motive was unknown, therefore King failed to meet his burden of proof. King appealed to a state court.
Was there more risk?
The Court of Appeals of Virginia found it was an error for the Commission not to consider if King’s employment generated a risk of assault.
The appeals court pointed to a Virginia Supreme Court decision. The employee in that case was shot at 2:00 a.m. in a dark parking lot while waiting to pick up newspapers for delivery. The employee said she was required to wait “for extended periods of time” in a “deserted, dimly lit parking lot.” The Virginia Supreme Court held that those details about the risk associated with the employment showed the assault arose out of employment.
Other examples of increased risk include handling cash which increases the risk of robbery, and traveling to or through a dangerous area, the appeals court wrote.
In conclusion, the court said the Commission erred by ruling only the assailant’s motive was relevant to the question of whether the assault arose out of employment. Instead, King can prove the assault resulted from an increased risk of assault connected to the employment even though King knew his attacker.
The appeals court reversed the Commission’s ruling and remanded the case to consider the question of whether King’s job put him at greater risk of assault than the general public.
(George King v. DTH Contract Services Inc., Court of Appeals of Virginia, No. 1150-18-4, 2/5/19)