Workplace violence and the role of workers’ compensation

Unfortunately, violence in the workplace is a growing problem that has garnered much media attention over the last few years. According to the Bureau of Labor Statistics, 20,050 workers in the private industry experienced trauma from nonfatal workplace violence in 2020. These incidents required days away from work.

actice shooter in office woman ducking

Of those victims who experienced trauma from workplace violence:

  • 73% were female
  • 62% were aged 25 to 54
  • 76% worked in the healthcare and social assistance industry
  • 22% required 31 or more days away from work to recover
  • 22% involved 3 to 5 days away from work

Abigail Zwerner and the Newport News school shooting

School shootings are part of the trend toward growing workplace violence, impacting teachers and other school employees. For example, on January 6, 2023, Abigail Zwerner, an elementary school teacher, was shot and seriously injured by one of her male, six-year-old students in Newport News, Virginia. Prior to the shooting, the school was notified about the student’s behavioral issues. In fact, school administrators were warned the day of the shooting that the student may have brought a gun to school before Zwerner was shot.

Abigial Zwerner - Photo credit BBC News

Abigial Zwerner – Photo credit: BBC News

Following the shooting, Zwerner filed a $40 million-dollar lawsuit against the school board for the injuries she sustained. In her suit, Zwerner alleges the school did nothing to protect her despite warnings about the student’s behavior.

In response to the lawsuit, the school board filed a motion to dismiss the suit. They argued that Zwerner’s exclusive remedy was workers’ compensation benefits. The schoolboard would have preferred to have had Zwerner’s injuries handled by the Virginia Workers’ Compensation Commission, since the benefits are much more limited than what is recoverable in a personal injury suit. Specifically, under the workers’ compensation system, Zwerner would be limited to lost wages and medical benefits. Zwerner would not be entitled to any pain and suffering damages under workers’ compensation.

“Exclusive remedy” – what does that mean?

What does it mean when we say exclusive remedy of workers’ comp benefits? Section 65.2-307(A) of the Code of Virginia states:

The rights and remedies herein granted to an employee when his employer and he have accepted the provisions of this title respectively to pay and accept compensation on account of injury or death by accident shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents, or next of kin, at common law or otherwise, on account of such injury, loss of service, or death.

In the simplest terms, an employee who is injured on the job is limited to receiving workers’ compensation benefits. They cannot sue his or her employer for the injuries. This is true even if the employer was negligent and caused the employee’s injuries. For more on this subject, see here.

If I am assaulted at work, am I automatically entitled to workers’ compensation benefits?

Being assaulted at work does not mean that you are automatically entitled to workers’ compensation benefits. To qualify, there are certain things you will have to bear the burden of proving. The biggest hurdle is proving that the attack arose out of your employment. Virginia follows the “actual risk” test, which means that you must prove that your workplace assault was caused by a risk from your employment.

jewelry thief looking at a watch

How can I prove “actual risk”?

  • One way to establish entitlement to workers’ compensation benefits for assault is by proving that the conditions of the employment increased your risk of being assaulted. For example, carrying or handling cash, such as a bank teller, increases your risk for an assault by someone attempting to rob you of that cash.
  • Another way to show the required nexus between your job and the assault is to produce crime statistics for the area where your job required you to work. If those statistics show that the area where you worked had higher crime rates than surrounding areas, it is more likely that your assault arose out of your employment.
  • Another way you can receive workers’ compensation benefits is if you can prove that your status as an employee motivated the attacker. You must show that you were assaulted because of your job or your status as an employee. An easy example of this is a pizza delivery person who is assaulted while making a delivery. In that situation, the driver is most likely entitled to workers’ compensation benefits.

What if I am assaulted by a co-worker?

If the attack by a co-worker is personal in nature, you would not be entitled to workers’ compensation benefits. A good example of this would be two co-workers who are dating, and one assaults the other at work due to issues with the relationship. However, if a worker assaults a co-worker over some issue that is related to the job, that should be covered by workers’ compensation. One other thing to keep in mind is if you are the aggressor in starting a fight with a co-worker, you are most likely not entitled to workers’ compensation benefits.

Investigator holding a gun as evidence

What are the next steps in Abby Zwerner’s case?

A surprise decision by a Newport News Circuit Court judge has allowed Zwerner to proceed with her $40 million lawsuit. This means that she may be entitled to benefits beyond workers’ compensation for the serious injuries she sustained.

Zwerner was hospitalized for two weeks, after a bullet went through her hand and struck her in the chest. As for the six-year-old shooter, he is currently in the custody of a family member in Newport News. He now attends a different school, and is receiving therapy. His mother, to whom the gun belonged, plead guilty to felony child neglect.

The $40 million lawsuit entails punitive damages against the school administrators for negligence, as they were made aware, in advance, of his tendency towards rage and the possibility of carrying a firearm. Zwerner’s attorneys are trying to overcome Newport News public schools’ argument that her sole remedy was workers’ compensation benefits by claiming that her injures “did not arise out of her employment” and therefore did not “fall within the exclusive provision of workers’ compensation coverage.”

The judge responded: “The danger of being shot by a student is not one that is peculiar or unique to the job of a first-grade teacher.”

If you or someone you know has been hurt due to workplace violence, the experienced workers’ compensation lawyers at Allen & Allen are here to help. For a free case evaluation, call 866-388-1307.