On November 8, 2023, the Supreme Court of Appeals of West Virginia, in Hood v. Lincare Holdings, Inc., clarified that the increased risk test may be used to determine whether injuries sustained by employees engaged in a neutral risk activity are compensable under workers compensation (WC).
In this case, an employee who was making a delivery for his employer filed a claim for WC benefits after suffering a knee injury while walking down three steps. The employee did not slip, trip, or fall and the stairs were not defective. An administrative law judge (ALJ) denied the claim, finding that the injury was not sustained in the course of and as a result of employment.
In its review of the case on appeal, the state's supreme court noted that there are different types of injury-causing risks and that the employee's injury was caused by a neutral risk, which is one that is neither distinctly employment nor distinctly personal in character.
The court acknowledged that most jurisdictions use the increased risk test—which examines whether the employment exposed the employee to a risk greater than that to which the general public was exposed—to determine if a neutral risk activity is work related. While this test has not been explicitly adopted in West Virginia, the court found that it may be relied upon when determining whether an injury caused by a neutral risk activity resulted from the employment. Under the increased risk test, the injury may be compensable if the employee faced an increased quantity of a risk, even if the risk was not qualitatively peculiar to the employment.
Applying the test, the court concluded that the employee's risk of being injured while descending the stairs was not qualitatively peculiar to the employment, nor did the employee face an increased quantity of a risk. With this decision, the court affirmed the ALJ's determination that there was no causal connection between the employee's work and the injury.
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