Virginia was rocked by a 5.9 magnitude earthquake this afternoon. I was in my office, diligently working to zealously defend my clients, when the windows that overlook the Battleship Wisconsin and Nauticus on the Elizabeth River in Norfolk, VA began to shake; the blinds began to bang against the windows; my desk began to rumble. Yes, we had experienced an earthquake - in Virginia. I quickly checked the Internet and found that the preliminary reports were of a 5.9 magnitude (thereafter downgraded to 5.8) earthquake centered west of Richmond that was felt as far south as North Carolina, and as far north as New York. I quickly made calls to ensure the safety of my family, and once I knew that all was well, I returned to work.
However, my thoughts soon turned the effect of a 'natural disaster' on the compensability of a work injury in Virginia. Although Virginia is not the first, or even the 45th state, that comes to mind when you think 'earthquake,' we do experience our share of natural disasters, most notably nor’easters and hurricanes. In fact, Hurricane Irene is expected to make landfall in the next few days. Mother Nature can be fierce. And what happens if you have an employee who sustains an injury as a result of, or even during, one of these phenomena of nature?
The Virginia Workers' Compensation Commission has in fact addressed this concern, albeit more often as a result of a hurricane or lightning strike, but the same holds true for earthquakes. The general rule regarding natural disasters has been stated as follows:
"If an employee is injured by some natural force . . . the event does not in and of itself fasten liability on the employer. The theory is that death or any incapacity to work resulting from some natural force operating directly upon the victim without the intervention of any other agency or instrumentality arises not out of the employment but is due solely to an act of God. However, when the nature of the employment, or some condition, or environment therein, brings into existence a special or peculiar risk to the disastrous forces of nature, the injury or death of an employee may be compensated as a risk of the employment. The applicable test seems to be not whether the injury was caused by an act of God, but whether the employment collaborated in causing the injury or death.” Lucas v. Fed. Express Corp., 41 Va.App. 130, 134–35, 583 S.E.2d 56, 59 (2003).
Simply put, sustaining injury while at work because of a hurricane, earthquake, lightning strike, is not sufficient, in and of itself, to render the injury compensable. The injured worker must still make that necessary causal connection between his working conditions and his injury. The question becomes whether the conditions of the employment put the employee at a greater risk of injury due to an act of God than the general public.
This is not always an easy question to answer, but it should always be asked and investigated. So, in the next day or two, or next week, if you have an employee reporting an injury related to our recent earthquake, or the impending hurricane, make sure you ask the right questions before accepting or denying the claim.
