F&P attorney Mike Bennett successfully defended a workers’ compensation claim for benefits by convincing a jury that the claimant’s actions amounted to willful misconduct.

The case was tried before the Honorable Dwight Jackson in the Circuit Court for Calvert County on February 13 and 14, 2020. The jury’s decision saved the employer, a treatment facility that provides mental health services exclusively for first responders, considerable exposure due to the nature of the injuries involved in the accident.

The claimant was employed as a nursing assistant and was attempting to gain access to the nurses’ station to assist a patient who had just finished treatment.

The door that normally would have been used to gain access to the station was locked, resulting in the claimant being separated from the station by a barricade that was approximately three feet tall and four feet wide.  The evidence showed that there were numerous options available to the claimant to unlock the door and safely gain access to the station, including three master keys within just a short walk.  Instead of exploring these options, the claimant decided to transverse the barricade with the assistance of the patient, and in the process, ended up with numerous injuries that required multiple surgeries.

Generally speaking, it can be very difficult for employers and insurers to prevail on a willful misconduct defense for a number of reasons.  For starters, there is a statutory presumption that an injured worker did not engage in willful misconduct.  If the defense can overcome this presumption, they must then prove that an accident meets five separate and distinct elements.  If any of those elements fail, so does the entire defense of willful misconduct.

One of the five elements of willful misconduct is that the employer has a rule prohibiting the action that caused the accident. This particular element forced the defense to get creative as the employer did not have an explicit rule against employees climbing over barricades.  Instead, Mike Bennett argued to the jury that there was an implied rule against this specific action.  In order to buttress this position, the defense introduced testimony from witnesses that they collectively have never seen or heard of anyone climbing over a nurses’ station while working in the field.  The jury agreed with Mr. Bennett in convincing fashion, as it took just 15 minutes to reach its verdict.

COVID-19 Guide to Reopening Checklist

Herndon liability associate, Tiffany Vrabac has been published in the Virginia Association of Defense Attorneys’ (VADA) Journal. Her article, “#BLOG-POST-&-TWEET-AT-YOUR-OWN-RISK” addresses how the ethical obligations and the Rules of Professional Conduct still apply when posting on social media platforms.

To read the entire article, click on the link: 32-1 Blog Post Tweet–Vrabac.

This article originally appeared in the Journal of Civil Litigation, Vol. 32, No. 1 (Spring 2020), a publication of the Virginia Association of Defense Attorneys. It appears here with permission.