Out of state injuries: Will workers’ compensation cover them?

Out of state injuries: Wi…

It always seems to happen on an otherwise easy Tuesday afternoon; you’re finishing up the paperwork for the day when you get a phone call: one of your employees working in another state has hurt himself or been injured on the job. What happens now?

If you don’t already cover this in your employee handbook, then the first thing that should happen is to make sure the employee gets medical attention. Make sure you get some sort of report of the incident, either from other co-workers or from the injured employee and get it documented. If you need to send another employee to the site to document what happened and where it allegedly happened, please do so. You may even need to put your Compensation carrier on notice of the incident so they can begin filing and submitting what needs to be submitted to the appropriate agencies. Initially, you should treat this injury the same way you would treat an injury that happened at the main office.

A few days will go by and then you may get a letter from the state Workers’ Compensation Commission advising that there may be a claim, and at this point you may start to wonder, why on earth am I getting a workers’ compensation claim here when the accident occurred in another state?

Virginia refers to these types of injuries as “foreign injuries.” Virginia Code §65.2-508 specifically exists to address these kinds of cases. Fortunately, it is fairly brief and direct. 65.2-508 specifically states:

“A. When an accident happens while the employee is employed elsewhere than in this Commonwealth which would entitle him or his dependents to compensation if it had happened in this Commonwealth, the employee or his dependents shall be entitled to compensation, if:

1. The contract of employment was made in this Commonwealth; and

2. The employer’s place of business is in this Commonwealth; provided the contract of employment was not expressly for service exclusively outside of the Commonwealth.

B. However, if an employee shall receive compensation or damages under the laws of any other state, nothing herein contained shall be construed so as to permit a total compensation for the same injury greater than is provided for in this title.”

Simply put, if you are a Virginia business, and have an employee from Virginia travel to another state for your business, you will still be responsible unless you have a contract for employment in another state AND the contract provides for the employee to only operate outside the boundaries of Virginia. So, if your employee was engaged to work in another state and only worked in other states, you may have a jurisdictional defense to a claim in Virginia. Consider this - you have an employee, a logger, coal miner, or even truck driver, and you send them from Virginia to a job site in West Virginia or Kentucky. Even though they are out of Virginia, they are still in the other state on behalf of your Virginia company engaged in work for the benefit of your business. It makes sense that they are eligible for Virginia benefits (they might also be able to proceed under the laws of the state of the accident, but you shouldn’t worry about double recovery; more on that as covered in subpart B another time).

If you change up the scenario, now this employee (truck driver, miner, or logger) is a Kentucky resident, employed by your Virginia company to work on a West Virginia job site and he is injured. You would first look to how was he employed. Per the Virginia Code, you would ask “how was the contract for employment made?” This doesn’t have to be a physical contract per se; Courts have not interpreted the use of the word “expressly” to require a specific written contract. Indeed, it is not uncommon for employers and employees to agree verbally that the work is going to be limited to a specific site, or for a specific time frame. In those situations, the secondary aspect of the contract focused on the exclusivity of services may not be satisfied for Virginia jurisdiction.

You can also change the scenario another way: the employee is a resident of West Virginia, employed to drive a truck or work different logging sites between West Virginia, Kentucky and anywhere else you might need to dispatch him. If this includes a Virginia site, even if the majority of his work is in other jurisdictions, those occasional Virginia tasks may be enough to at least get him in the door of the Virginia Workers’ Compensation Commission.

Virginia Workers’ Compensation is full of fascinating nuances like the ones outlined here, and each situation needs to be properly vetted by an experienced and competent hand. If you find yourself facing these issues or others related to Workers’ Compensation matters, or if you have specific questions related to this article, or if you would simply like a consultation regarding your current practices, please contact John Stacy (jstacy@setlifflaw.com) at (804) 377-1263, or Steve Setliff (ssetliff@setlifflaw.com) at (804) 377-1261.