A Blow to Natural Selection – Failure to Wear a Seatbelt Bars a Workers’ Compensation Claim  

The Comp. defense, bar, a generally dry bunch, is all atwitter over the recent opinion by the Virginia Court of Appeals in Mizelle v. Holiday Ice Inc. and Graphic Arts Mutual Insurance Company.

In that case the Virginia Court of Appeals, in an unpublished opinion of limited precedential effect, affirmed a denial by the Full Commission of benefits to a driver injured where he attempted to reorient so that the trailer he was hauling had gotten out of line and ran head on into a dump truck. The record is a Saturday Night Live skit in the making:

Claimant further testified that since first obtaining a driver’s license, he had known that Virginia law “says you’re supposed to put [a seat belt] on before you start driving.” He acknowledged his understanding that the seat belt law “still applied” and stated that when he began driving the truck, he knew that he “had to put [his seat belt] on, . . . didn’t put it on yet, but . . . intended to do so at some point.” He agreed that to his knowledge, nothing was wrong with the truck’s seat belt and that he understood its purpose was to hold him in place, prevent him from bouncing around, and keep him from being ejected in the event of an accident.

The Employer defended on the basis of willful misconduct [it is worthy of note that the basic defenses in Va. Code 65.2-306 distinguish three types of misconduct: 1) “willful misconduct or intentional self-inflicted injury,” 2) “willful failure or refusal to use a safety appliance or perform a duty required by statute,” and 3) “willful breach of any reasonable rule or regulation adopted by the employer and brought, prior to the accident, to the knowledge of the employee” – it’s not clear why they used #3 and not #2, but that may be a difference without a distinction]. In support of this defense the attending trauma physician opined that “claimant’s injuries were ‘consistent with being caused by an ejection and impact with the ground’ and that ‘it is more likely than not that use of a seatbelt would have limited or avoided [claimant’s] injuries.’” That opinion went unrefuted.

The deputy commissioner rejected the defense and awarded benefits. The Full Commission reversed and vacated the award:

Based upon the claimant’s own description of the accident as well as the medical evidence, we are persuaded the claimant’s injuries were proximately caused by his failure to wear a seatbelt and resulting ejection from the vehicle. The only impact the claimant testified to was that of his body hitting the ground after he was ejected from the vehicle. The claimant did not testify to any injuries, pain, or discomfort prior to his ejection from the vehicle. [The trauma physician’s] opinion supports a conclusion that the claimant’s injuries were caused by his impact with the ground after being ejected. As the evidence preponderates to show that the claimant’s willful violation of a statute proximately caused the injuries he suffered, we need not determine whether the claimant would have been completely unharmed had he been wearing a seatbelt.

This was not a given. The same court affirmed the Full Commission’s award of benefits where a tow truck driver was hit from behind at a light and injured when he was thrown forward in Old v. Huckaby, 1995 Va. App. LEXIS 563 (Va. Ct. App. 1995).

The evidence supports the finding that Huckaby's failure to have his seat belt fastened at the time of the accident was, at most, negligence. No evidence proved that he intentionally failed to fasten his seat belt. Negligence does not bar workers' compensation benefits… Furthermore, the evidence failed to prove that Huckaby would not have suffered his injury had he been wearing a seat belt. This failure of proof supports the commission's determination that Huckaby's failure to wear a seat belt had not been proven to be a proximate cause of his injury.

Tempering everyone’s enthusiasm (calm down, people), the Mizelle opinion is unpublished, so it has limited effect. It’s also not the first unpublished court of appeals opinion on point - Am. Transp. v. Mailloux, 2018 Va. App. LEXIS 267 (Va. Ct. App., Oct. 9, 2018) went the same way on similar reasoning. On top of that, the Court was affirming the opinion of the Commission, so they got it right the first time. I also take careful note of the specific language regarding findings – “The Commission found that claimant’s injuries were proximately caused by his failure to wear his seat belt and his resulting ejection from his truck, and the uncontested and uncontroverted evidence noted above supports that finding.” I can readily come up with ways to contest and controvert that evidence, and I have seen claimants’ counsel attempt to do so before. It’s very, very rare to see the facts line up so well – most claimants are better coached, and most doctors like getting paid (which is more likely where there is an insurer…) Moreover, it is not impossible that the legislature may disagree and “fix” the issue – the other way. Still, common-sense prevails, though the gene pool may get more shallow in the long run.

If you have any questions about this article, please contact Dov Szego (dszego@setlifflaw.com) at 804-377-1263 or Steve Setliff (ssetliff@setlifflaw.com) at 804-377-1261.