Positional Risk v. Actual Risk Arising Out of Employment

In order to obtain workers' compensation benefits in Virginia, an injured worker must prove that the injury “arose out of an actual risk” of employment. It is not enough to show you were injured at work, i.e., “positional risk.” You must show that you were injured because of an “actual risk arising out of the employment.”

For example, if a convenience store cashier is shot while standing at the register, the “positional risk” of standing at the cash register alone is not sufficient to prove he has a compensable claim. Perhaps he was shot because the shooter suspected he went out with his girlfriend, which would be a dispute that does not “arise out of the employment.”

However, if there is strong evidence that the shooter was angry because he didn’t like the way the cashier bagged his items, this fact may establish that the employee's injury “arose out of his employment” as a cashier.

If no one knows why the employee was shot, the court will not presume the shooting arose out of the employment. The burden is on the employee to prove the injury occurred because of an “actual risk arising out of the employment.”

“Positional risk” alone is not enough. In the eyes of the court, the cashier could have been shot while he was standing anywhere, he just happened to be shot while he was at work.

Similarly, in slip and fall cases and in cases involving stairs, it is not sufficient to show that you fell while you happened to be at work, or that you twisted your ankle while going up stairs that happened to be at your workplace. In the eyes of the court, you could have fallen or twisted your ankle anywhere. The employee must establish a nexus between the employment and the incident that is not merely a “positional risk” of being at work. The employee must establish that the incident occurred because of an “actual risk arising out of the employment.”

If the insurance carrier is telling you they need to take your recorded statement before they start paying you, they may be setting you up to get the evidence they need to deny your claim, and to disprove it in court. By the time you get the denial letter that says nothing more than that your injury did not “arise out of the employment,” it may be too late.

The law is full of traps and snares laid by or on behalf of powerful insurance companies and their lobbyists. If you were hurt at work, retain an attorney skilled in the field of workers compensation before you are ensnared in a trap. Your injury may affect you and your family for a lifetime.