What's wrong with Va. Code § 65.2-301

In Va. Code § 65.2-301, the General Assembly created an exception to the exclusive remedy provisions of the Workers' Compensation Act for employees who are the victims of sexual assault. The intent of the statute, or so I have always thought, was fairly progressive, to give assault victims the choice between either worker's compensation or a civil lawsuit. Instead, the Virginia Supreme Court seems determined that there are no cases to which this statute applies.

In Butler v. Southern States Cooperative, Inc., the Virginia Supreme Court in an opinion by Justice Koontz held on Friday that a woman's injury as the result of an assault by a co-worker did not arise out of her employment, and therefore workers compensation did not apply, and the applicability of section 65.2-301 need not be considered. Notwithstanding the language of the opinion in Butler, that the Court was merely applying long-standing principles, it might be argued that the Supreme Court's jurisprudence in this area has been uneven, at best, since the much-maligned decision in Haddon v. Metropolitan Life Ins. Co., 239 Va. 397, 389 S.E.2d 712 (1990), which was overruled in Lichtman v. Knouf, 248 Va. 138, 445 S.E.2d 114 (1994), on the repetitive-injury is not an accident issue, but not the "arising out of" issue. The Court in Haddon (where defendant convinced the circuit court that the plaintiff's claim involved "an accident arising out of and in the course of her employment"), and the legislature in Va. Code §§ 63.1-23.1 and 65.2-301, apparently recognize the possibility that a co-worker battery can arise out of the injured victim's employment, but the Supreme Court ever since has refused to admit any such possibility, which makes section 65.2-301 a dead letter. Some of the justices claimed that the "arising out of" issue was not before the Court in Haddon, but they were in the minority, at least in 1991. See Kelly v. First Virginia Bank-Southwest, 404 S.E.2d 723 (1991).

The statute applies only "where the nature of such employment substantially increases the risk of such assault," which sounds something like the "arising out of" requirement. Discussing (or refusing to discuss) this element of the statute, however, the Supreme Court once said: "We need not suggest examples of such employment." Reamer v. National Service Industries, 237 Va. 466, 472, 377 S.E.2d 627, 630 (1989). That could be because there aren't any, as the law now stands. The last time (not counting Haddon) an assault victim was limited to her worker's compensation remedy was the newspaper deliverywoman who got shot at 2 a.m. in Plummer v. Landmark Communications, Inc., 235 Va. 78, 366 S.E.2d 73 (1988).