HEAT STROKE AS A COMPENSABLE INJURY
With the long period of extreme heat we have experienced in the Commonwealth, employers may experience an influx of workers’ compensation claims for heat stroke and other heat-related injuries. With that in mind, it is a good time to revisit the way that claims resulting from heat exposure are treated in the Virginia Workers’ Compensation Commission to help you make decisions about compensability based on the law.
The Virginia Workers’ Compensation Commission has found that heat stoke can be a compensable injury, if it results from conditions of employment greater than the hazards that the public at large are exposed to. Thompson v. Virginia Department of Transportation, VWC File No. 240-16-45 (July 27, 2009). As with most workers compensation claims, the Claimant has the duty to demonstrate that the injury has a causal connection to the conditions under which the work is required to be performed. “An injury caused by heat exhaustion or some other weather-related condition is compensable when the environmental conditions are extraordinary.” See Robinette v. Kayo Oil Co., 210 Va. 376, 171 S.E.2d 172 (1969)., 210 Va. 376, 171 S.E.2d 172 (1969). While the public at large is exposed to the same heat index, certain conditions can expose employees to greater hazards. Working on or near asphalt or concrete pavement for extended periods of time, working in a non-air conditioned vehicle, etc. have all been considered a risk particular to employment for the purposes of determining compensability.
It is important to recall that the extraordinary condition is not re quired to be one of Claimant’s regular job duties. While injuries sustained during recreational activities are generally not compensable, certain actions of the employer can bring such an injury into the employment. Winson v. Department of Taxation- Commonwealth of Virginia, VWC File No. 225-60-05 (10/20/2006). Factors such as the employee being required to attend such an event, the degree to which the employer benefits from the event, the degree of sponsorship and participation by the employer, whether the activity occurs on premises associated with the employment, when the activity occurs in relation to work, and the frequency or period over which the activity is conducted. Id. In Winson, heat stroke incurred during a softball game sponsored by the employer, held during the workday, and for which Claimant was paid her regular wages for her attendance, was enough to bring the injury into the employment and for the injury to be compensable.
The employer providing relief from heat conditions, such as providing ice and water, unlimited breaks, and an air-conditioned area where employees can cool down, etc., can help demonstrate that heat exposure is not extreme or different from any other individual working outdoors in the heat, which will be important to defend any heat related claims. Mukisa v. Mukisa LLC., JCN No. VA00001366587 (Sept. 7, 2018).
Should you have any questions about any matters related to Virginia Workers’ Compensation claims, please do not hesitate to contact this author or any of the other attorneys at Ford Richardson.
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