Willful Misconduct Virginia

Willful Misconduct Virginia

Willful Misconduct and Virginia Law

What Constitutes Willful Misconduct in Virginia?

Willful misconduct is a term frequently used when insurance companies deny a  Workers’ Compensation claim.

Workers’ compensation insurance is a form of no-fault insurance that covers workers who are injured on the job. The process of filing a workers compensation claim was established to offer a relatively simple way to pay for medical expenses and lost wages. Most businesses in Virginia are required by law to carry workers’ compensation insurance, except for very small companies with less than three employees.

Seeking Compensation from Your Employer: Willful Misconduct Vs. Negligence

Workers’ compensation commission and case process was intended to make things easier for employers, workers, and the Virginia court system by eliminating a number of potential negligence claims for workplace injuries. With workers’ compensation claim, you do not need to search for evidence that your employer was negligent, and the employer does not have to prove that you were at fault either. In a typical personal injury lawsuit, it is necessary to present evidence that the defendant was negligent, and that this negligence caused an injury. 

Another difference is that the insurance company cannot generally deny your workers’ compensation claim solely on the grounds that the accident was your fault this is inapposite of how a personal injury/negligence case works.  There are a few exceptions to this principle, and “willful misconduct” is one of them.

When Compensation is Not Allowed Due to Willful Misconduct

Virginia code § 65.2-306 states that the insurance carrier can deny coverage for the following reasons:

  • If the employee acted out of willful misconduct or intentionally injured themselves.
  • If the employee was attempting to hurt someone else.
  • If the employee was intoxicated at the time of the injury.
  • If the employee willfully refused to use safety protocols or carry out a duty required by law.
  • If the employee willfully disobeyed any “reasonable rule or regulation” made by the employer that the employee was made aware of prior to the injury.
  • If the employee was under the influence of a non-prescribed controlled substance at the time of the injury.

In many cases, employees learn that their workers’ comp claim has been denied because the employer alleged that their injury was due to willful misconduct.

What is considered Willful Misconduct in Employment in Virginia Law?

An employer has to do more than just claim that the worker acted willfully. They need to meet certain legal requirements to prove that not only was the worker at fault, but that their actions were willful. Simply making an error in judgment does not constitute willful misconduct. The burden of proof is on the employer, and the different types of willful misconduct have different rules for establishing proof. Here we’ll talk about the safety rule, because this is one of the more common arguments by employers in workers’ comp cases.

Willful Misconduct in Circumventing a Safety Rule

 In order to prove their claim, the business has to meet four requirements:

  • The employer has to show that the safety rule was reasonable in the first place. For example, banning employees from performing a task essential to their jobs because “someone might get hurt” would not be reasonable. But requiring workers to use specific safety equipment, or follow protocols designed to reduce risk, might be considered reasonable. In some situations, you may be able to argue that the particular rule was not reasonable given the constraints of the job.
  • The employer must demonstrate the employee knew about the safety rule. Whether you remember it or not, there is a good chance that your employer had you sign a document stating that you had read and understood the company safety manual. Often this happens right after the employee completes training upon being hired; especially if the company has a specific training program. For this reason, it is difficult to argue that the worker was unaware of the rule in many cases, but there are some exceptions (such as small businesses without a uniform training program).
  • The safety rule was intended to benefit or protect the worker. If the employer cannot explain how the rule helps keep the employee safe, you may be able to argue that the employer can’t meet this factor under willful misconduct.
  • The employee intentionally did what the safety rule forbid them to do. The employer does not have to prove that you were intentionally trying to break the rule, only that you intentionally undertook a forbidden action. Depending on the situation, you may be able to argue that your actions were not intentional.


Willful Misconduct Defense in Workers’ Compensation in Virginia

If the injured worker canovercome the employer’s arguments that the employee willfully violated a safety rule, there may still be other defense alternatives. Some of the defenses overlap with the employers’ burden of proof. For a safety rule claim, there are several options an injured worker and their lawyer may discuss for your response:

  • Your failure to follow the rule did not cause your injury, and the two are actually unrelated. For example, the fact that you were not wearing a dust mask in a woodworking shop did not cause a beam to fall and hit you on the head.
  • You could argue that your employer had previously ignored other employees when they flouted the rule. Essentially, if the employer has a habit of failing to enforce a rule, it is unrealistic to expect that the rule will be followed. If a similar circumstance fits your situation, your lawyer may request various documents or interviews with other employees during the discovery process in order to gather evidence to support your case and response to the employer’s defense of willful misconduct.
  • In some situations, you may be able to argue that you disobeyed a safety rule due to mitigating circumstances. For example, if your employer did not provide the needed safety equipment and you had to complete the task anyway due to an emergency, your violation of the rule may be acceptable.
  • The employer did not put the rule in writing. This relates to the above requirement about proving the employee knew of a rule. If the rule was not included in a training manual or rule book, it will be hard for the employer to prove that you or anyone else knew of the rule’s existence. However, in some cases the employer may have circulated a memo or posted a sign about a the rule.
  • Another defense may be a general lack of safety training. Just because the employer puts a rule in a training manual or online training module, does not mean everyone will remember it years after their first day. If the employer fails to provide regular safety meetings or training sessions, it may still be possible to argue that the rule was not known. If the employer does hold regular safety training, your lawyer may request attendance records and course material.
  • Was the safety rule explained in a language you speak fluently? Under Virginia law, employers must provide safety training in your language. If your employer handed you a safety manual in English, but you primarily speak Spanish and only know a few words of English, the employer can not expect you to understand everything in the manual.

Depending on your situation, there may be other responses to a willful misconduct denial by a defendant in a workers compensation claim (workers compensation insurance company). The best way to learn more about how to fight the insurance company’s denial is to speak with a Virginia workers’ compensation attorney.

If your claim has been denied, or you have questions about workers compensation or an injury you’ve received at work, please contact us at Lugar Law for a free consultation.