Does Workers’ Comp Cover Assault in Virginia?

Nobody expects to get assaulted at work, but unfortunately, thousands of Americans are injured or killed every year due to workplace violence. The National Safety Council reports that in 2020 alone, assaults at work resulted in 392 fatalities as well as 20,050 injuries causing missed workdays. The violence occurs in various forms, such as a worker being attacked, hurt in a crime, or sexually assaulted in the workplace.

For many employees, the question is, “Can I get worker’s comp if I was assaulted at work?” In Virginia, workers’ compensation can cover injuries from workplace violence, but claiming for such injuries is rarely straightforward. Get the help of an experienced workers’ comp attorney if you would like to receive compensation for your workplace violence injury.

Types of Workplace Violence

The National Institute for Occupational Safety and Health has four categories of workplace violence: 1) harm from persons with criminal intent; 2) violence from customers or clients; 3) worker-on-worker violence, and 4) violence in personal relationships. Increasingly, we are seeing examples of these incidents such as:

• A service staff, retail worker, or store clerk being hit, slapped, or kicked by a customer
• An employee being attacked by a coworker due to personal or job-related conflicts
• Employees getting injured during a workplace shooting or robbery
• Nurses and caregivers getting hurt by mentally ill patients
• A worker being attacked at work by a violent partner
• A medical provider being physically assaulted or verbally attacked at work
• Personnel getting injured while breaking up a fight in their workplace
• An employee getting sexually assaulted by a coworker or a superior.

When a Workplace Violence Injury is Compensable

Not all workplace assault injuries are eligible for workers’ comp. For an injury to be compensable, one of the fundamental requirements under the Virginia Workers’ Compensation Act is that it must have “arisen out of” your employment. This means that the injury happened due to your work or the nature of your work, instead of being just an injury that could happen to anyone anywhere.

For example, employees who handle cash – such as store clerks and delivery drivers – are inherently at risk of getting attacked during a robbery. Nurses and aides who attend to violent patients are exposed to physical harm due to their work.

When these employees claim workers’ comp after an assault, they can show that their job puts them at risk of such violence, and thus, their injury may be compensable.

However, it’s not always easy to prove that an injury arose from your work. The risk may be less evident in many other situations, such as a retail worker being assaulted by a customer or two employees fighting in the workplace. Having a competent attorney can be indispensable in establishing the eligibility of your injury.

What You Should Do If an Assault Occurs at Work

If someone starts to attack you or if violence has erupted at work, take these steps for your safety. This will also be helpful to your workers’ comp claim later on:

• Remove yourself from the situation. As much as possible, get away from the area and stay in a safe place. Do not try to fight back, as this could jeopardize your wellbeing and your injury claim.

• Call the police. This is crucial even if the attacker is someone you know or someone in a position of power. You need the authorities’ help to enforce your safety and prevent the assailant from doing more harm. A police report may also be valuable evidence in your compensation claim.

• Seek medical attention. See a doctor for your injuries as soon as you can, even if they seem minor. Don’t wait around for a few days to see if your condition improves. The insurance company can undermine your claim if they see that you did not ask for immediate care.

• Notify your employer. This is required before making a worker’s comp claim in Virginia. Give a written notice to your employer within 30 days of the incident, and keep a copy of this notice.

• Talk to an attorney. Your next step will be to file a claim with the Virginia Workers’ Compensation Commission. But before that, get the help of a workers’ comp lawyer. You need to be ready to fulfill all process requirements and face your employer’s insurance company.

How to Seek Compensation After Workplace Assault 

This is the basic process for claiming worker’s compensation in Virginia:

1. Notify your employer within 30 days of the incident.
2. File a claim with the Virginia Workers’ Compensation Commission within two years of your injury. It’s important that you file as soon as you are able and that you have an attorney on your side.
3. Your employer must also file an injury report with the Commission.
4. Your employer must respond to your claim within 20 days of your filing.
5. If the Commission approves your claim, you will receive an Award Agreement. All parties must sign this agreement before you file it again with the Commission. The Commission will turn it into an official Award Order.
6. If the Commission denies your claim, you’ll need to attend a hearing where you must assert your case with evidence. The Commissioner or Deputy Commissioner will provide their decision after the hearing.

Many workers also ask if they can file a lawsuit against their employer if they suffered an assault at work. In most cases, getting workers’ compensation means the employee cannot sue the employer for that specific injury. Workers’ comp functions as a trade-off, providing accessible relief to the employee and a level of protection to the employer.

However, there are a few exceptions to this. For instance, under Virginia Code Section 65.2-301, titled “Victims of Sexual Assault.” a sexual assault survivor may claim worker’s compensation and pursue civil action against the assailant.

Don’t hesitate to speak with a lawyer if you want to maximize your compensation. You may have a number of options to get compensated following a workplace violence incident.

Talk to an Experienced Virginia Workers’ Comp Lawyer

Virginian workers have trusted Attorney Jaleh K. Slominski for their job-related injury claims for over 20 years. Ms. Slominski has decades of experience in this field of law, has handled complex cases of workplace violence, and has stood up against powerful employers and insurers. 

Talk to Attorney Slominski about your workplace assault injury. Contact us by email, or call (434) 384-9400 in (Lynchburg) or (540) 554-3762 in (Roanoke).