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An attorney for the Newport News School Board says a teacher being shot by a student is a workers’ compensation issue.
That’s in response to a lawsuit filed by first-grade teacher Abby Zwerner, who was shot by a Richneck Elementary student in class in January. It’s the same legal response attorneys from Walmart used when responding to civil lawsuits from survivors of a mass shooting at one of the company's stores in Chesapeake last fall.
In both cases, the employees allege that supervisors were warned in advance and were negligent in failing to take actions that could have prevented the shootings.
WHRO’s Ryan Murphy spoke to Rip Verkerke, director of the UVA School of Law's program for employment and labor law studies, about Virginia's uniquely restrictive workers' compensation system.
Editor's note: This conversation has been edited for length and clarity.
WHRO: What is workers' compensation and how does that system work in Virginia?
Rip Verkerke: Workers' compensation is an administrative scheme that substitutes for the tort system and provides compensation to employees when they're injured in their work.
Normally, if you're injured by someone as a result of negligence or even intentionally, you can file a lawsuit and recover damages to receive compensation. And so what the workers compensation system does is to substitute an administrative process. You file a claim with the Virginia Workers' Compensation Commission, and that is processed through an administrative process rather than through a judicial process.
In both the Walmart and the Newport News cases, the employees who were injured have filed lawsuits, and both times the employers now have come back and said, "No, no, this is covered by workman's comp. This lawsuit doesn't have standing."
Does that argument have a basis in the law — in legal opinion?
Yeah, absolutely it does. Workers' compensation is by statute — by the enactment of the General Assembly — and is the exclusive remedy for injuries by accident that arise out, over, or, and in the course of employment.
In layman's terms, that means that if you're injured in your job and you want to recover, you have to recover through the workers' compensation system. It's the exclusive remedy, and you can't bring a lawsuit, a tort suit, which provides for much more generous damages than does the workers' compensation system.
And so that that principle of exclusivity is fundamental to the workers' compensation system. And ordinarily is not very controversial, because if you're you have an accident on the job, it's unlikely that you're going to be able to bring a tort suit and the workers' compensation system will be uncontroversially the exclusive remedy, the controversy arises in these cases involving intentional actions.
Are there circumstances that go outside the standard workplace accident that do allow for these sort of lawsuits?
Workers' compensation laws in most states include an intentional injury exception to the exclusive remedy provisions of workers' compensation. And what that means is that rather than having workers' compensation be the only remedy that you can receive, you are able to bring a tort suit and receive more generous damages in cases involving an intentional injury.
Virginia is a bit of an outlier. The sort of majority rule, if you will, among other jurisdictions does provide this intentional injury exception to the exclusive remedy provisions of the Workers' Comp Act. Virginia courts and the General Assembly in Virginia have not recognized an intentional injury exception, at least not a general one.
So courts have fairly consistently — even in cases involving an assault — said that those injuries are covered by the workers' compensation system and that the exclusive remedy provisions prevent a tort suit from being brought.
Virginia is distinctively restrictive in its workers' compensation law; where claimants could bring a tort suit in other jurisdictions, they can't do so here. And so I think that's the uphill climb that both of these plaintiffs face.
Are there are there caps or certain things that workers' comp doesn't cover?
Yes.
A tort suit would ordinarily provide for full compensatory damages, meaning any injury that you suffer, whether that's an economic injury or whether you suffered emotional distress, potentially, if the employer's conduct is wrongful and in a heightened way, potentially punitive damages.
The workers' compensation system, on the other hand, provides much more limited and restricted recovery.
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