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A Virginia appellate court recently affirmed a decision by the state’s Workers’ Compensation Commission that awarded benefits to a convenience store employee who claimed he sustained a severe fracture of the foot when he stepped down from a stool after stocking his shelves in the store’s cooler. Observing that Virginia employs the actual risk test under which “the causative danger must be peculiar to the work and not common to the neighborhood,” and that the simple acts of walking, bending, or turning, without any other contributing environmental factors, are not risks of employment, the court agreed that here an unusual or increased risk existed. The employee’s large feet prevented him from utilizing an “intermediate” step on the stool—the narrowness of the step meant that it would not hold his weight. Instead, he was required to step up 18 inches to reach the top of the stool and then to step down the 18-inch distance to the floor. The risk of stepping up and down on the stool, therefore, was a “risk purely and uniquely” related to the employment.
Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is a leading commentator and expert on the law of workers’ compensation.
LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com.
See 7-Eleven, Inc. v. Williams, 2014 Va. App. LEXIS 38 (Feb. 11, 2014) [2014 Va. App. LEXIS 38 (Feb. 11, 2014)]
See generally Larson’s Workers’ Compensation Law, §§ 3.04, 29.01 [3.04, 29.01]
Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.
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