Va.: Lack of Evidence Dooms Laborer's Workers' Comp Claim

By Kirk Rafdal Nov 24, 2014

An employee who failed to show that his injuries arose out of his employment was properly denied workers’ compensation benefits, a Virginia appeals court ruled.

In March of 2012, while employed by United Airlines, Stephen Hersl suffered a serious fall on the tarmac at Dulles International Airport. Found unconscious, Hersl was rushed to a nearby hospital where physicians diagnosed him with a concussion, headache, sensitivity to light and acute pain. Though discharged the next day, Hersl complained of ongoing head, brain and spinal problems he attributed to the fall. Seven months later, he filed a workers’ compensation claim.

Because he had no recollection of the fall or the events immediately preceding it, Hersl relied on the testimony of a coworker who had witnessed the accident. The coworker, a baggage handler who happened to be standing nearby, said he observed Hersl standing in the bed of a pickup truck he routinely used to shuttle airplane parts between United’s gates. Hersl apparently walked toward the tailgate of the truck while holding a package and then tumbled forward, falling about four feet to the ground. The coworker, whose view was partially obscured by a baggage trolley, did not actually see Hersl make contact with the ground, but quickly came to his aid when it was apparent Hersl had fallen.

After hearing the evidence, a deputy commissioner denied Hersl’s claim on the grounds that he failed to show that his injury arose out of his employment. In other words, Hersl did not prove that there was a causal connection between the accident and an identifiable risk associated with his work duties.

After his claim again was denied following a review by the full commission, Hersl appealed to a Virginia state appeals court. Here Hersl argued that the height of the truck bed, approaching four feet, constituted an inherent risk of injury so as to find that his fall was causally connected to his working conditions.

The court, looking to similar cases where workers’ compensation was granted, pointed out that those claimants faced substantially higher risks of injury based on the nature of their jobs. One of those cases involved a construction worker who was pulling sheets of plywood through a large floor opening in a partially erected building. That worker lost his footing, fell through the opening and landed two stories below. Another case concerned a worker who was injured after falling from a forty-foot extension ladder while cleaning leaves from a gutter. The court distinguished the inherent risks involved with falls from those heights with the Hersl’s accident and concluded that a four-foot drop did not on its own represent the same level of danger. Lacking any other evidence upon which the court could find a causal connection between Hersl’s employment and his injury, the court affirmed the denial of workers’ compensation benefits.

Hersl v. United Airlines, Inc., Va. App., No. No. 0278-14-4 (Oct. 21, 2014).

Kirk Rafdal, J.D., is a staff writer for SHRM.

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