Written by Rachel Riordan, Esq.
Edited by Claire Carr, Esq.
Animal attack cases are not uncommon events and animal bites often raise interesting compensability questions in workers’ compensation cases. According to the Humane Society of the United States, there are approximately 78.2 million owned dogs in the country and about 40 percent of all households have at least one dog or cat. The United States Department of Agriculture estimates there are over 4,000 bee species in the country and bee allergies are becoming more prevalent. The animal encounter cases from the Virginia Workers’ Compensation Commission include horses, snakes, spiders, ticks, and even a compensable cat attack!
When evaluating animal bite cases, it is important to remember that Virginia is an “actual risk” state and not a “positional risk” state. In other words, the mere happening of an accident in the workplace is not compensable unless certain criteria are met. Most significantly, the accident must “arise out of” the employment. There must be a causal connection between the conditions under which the work is required to be performed and the resulting injury.
With respect to animal bites, the Virginia Workers’ Compensation Act requires that the injury be fairly traced to the circumstances or environment of the claimant’s employment. Milton v. Gibson Lumber Co., VWC File No. 224-32-58 (Sept. 22, 2006). The employment must expose the claimant to a greater risk than the general public. For example, benefits were awarded in Fuller v. Randolph M. Bailey t/a Wet Pets, 67 O.I.C. 35 (1988), where the employee was working in a pet store and was bitten by a spider, and in Phelps v. The Spectra Group, 71 O.W.C. 126 (1992), where the employee, a surveyor, was injured while surveying a wooded area. In comparison, benefits were denied in Elder v. Hardees of Lawrenceville, VWC File No. 201-64-45 (May 1, 2001), where a spider bit a restaurant worker, and in Hong v. Arlington County Public Schools, VWC File No. 146-71-19 (August 30, 1991), where a bee stung a teacher leaving the school building.
In Rohr v. Greenfront Furniture, JCN VA00001120790 (Jan. 10, 2017), the claimant was bitten by a cat at Greenfront, a furniture store in Farmville, Virginia. The claimant arrived at her desk and found a cat on a pizza box. The cat had entered the store several times earlier that day and the claimant’s supervisor had “tossed it out,” only to have it return. The claimant’s work area was in the warehouse portion of the store which had a “big open door.” When the claimant attempted to remove the cat, she was bitten. The Full Commission found the bite compensable and reasoned the open doors of the warehouse increased the risk of animals entering the claimant’s work space.
Whether the animal is a dog, spider, snake or even a cat, the foremost question to be analyzed in these cases is whether the claimant’s work environment or job duties increased the risk or likelihood of an animal encounter. These inquiries are often determined on a case-by-case basis as injuries not compensable in one type of employment can be compensable in another. For example, most bee stings that occur in office buildings do not “arise out of” the employment as working in an air-conditioned office does not expose an employee to a greater risk than the general public of being stung by a bee. However, employees who work outside (such as landscaping workers) are exposed to a greater risk than an office worker to bee stings in light of their proximity to the outdoors. Similarly, delivery drivers and home health workers often enter strangers’ homes and are exposed to a greater risk than the general public of injuries from household pets, whereas employees exposed to stray dogs or cats are not (unless the business has “big open door” and a propensity for exposure to strays).
If you have any questions about the potential compensability of an animal encounter case, the attorneys at KPM Law (and particularly your author) welcome the opportunity to discuss it.