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A fall suffered by a school security guard in Virginia Beach, Virginia, is not compensable because the wind that allegedly caused a door to shut, which caused her to fall, is considered an “act of God” and not within the scope of her employment, the Court of Appeals of Virginia ruled Tuesday.
Sylvia Martin appealed the decision of the Workers' Compensation Commission that she failed to prove “by a preponderance of the evidence” that she sustained a compensable injury in a 2018 incident in which she opened an outdoor gate on campus when the wind blew it open and then blew it back into her, causing her to fall on cement, according to documents in Sylvia Martin v. Virginia Beach Schools and Corvel Corp., filed in Richmond.
Ms. Martin, who was on work restrictions from a fall earlier that same year, filed a claim more than four months after the second incident, asserting that she had landed on her left side, injuring her left leg, left hip, ribs, back, neck, left hand and right hand, according to documents.
After the school district rejected her claim, the deputy commissioner with the Virginia Workers’ Compensation Commission ruled that she had failed to prove that her accident arose out of her employment because she did not establish that "the gate, its location, the surrounding environment or Claimant passing through it was a specific work-related risk that `collaborated' with the wind (an act of God) to cause her injury,” documents state.
On appeal, the full commission affirmed on the same grounds.
Ms. Martin appealed further, also asserting that "the `act of God' defense is contrary to the humanitarian purpose of the state Workers' Compensation Act" and "is not applicable to (her) case," documents state.
The state appeals court also affirmed, stating in its ruling that Ms. Martin “presented no evidence that her employer required her to walk through the gate where she was injured or that she was carrying a work-related item in one of her hands.”
“Although she described the weather as ‘very windy,’ she presented no evidence that the weather conditions collaborated with a condition of her employment or workplace to expose her to a special risk of injury,” the appeals court decision states. “Based on the facts in the record, the risk of claimant being injured by the gate in windy conditions was equal to that of any member of the general public or student population passing through it.”
Three bills that would change minor parts of the laws governing workers compensation in Virginia are headed for Gov. Ralph Northam’s desk after passing the Senate on Thursday.