George King worked alone as the overnight attendant at an interstate highway rest stop. When not making the rounds or performing cleaning services, his employer required him to remain locked in his office. He was also required to make hourly “safety check” phone calls, the purpose of which was to confirm the rest area was staffed and to assure his own safety. On July 13, 2016, as King walked back to the office after making his rounds, a former co-worker ambushed him and stabbed him in the eyes with a screwdriver, blinding him. The assailant had been using drugs and was disturbed before the assault. He said nothing during the attack and killed himself later that day. His motive for the attack remains unknown.
The Employer defended King’s claim on the grounds that the assault did not arise out of his employment. Under Virginia law, a workplace assault by a third party ‘arises out of the employment’ only if the attack was directed at the victim as an employee or expressly because of his employment (e.g., the nature of his employment exposed him to an increased risk of assault). Since there was no evidence establishing why the assailant attacked him, King thus had to prove that the risk of assault was elevated while working at the rest stop. He attempted to do so by emphasizing, among other things, that he worked alone overnight and was required to lock himself in the office when not otherwise required to be outside.
The Virginia Workers’ Compensation Commission found that the reason for the assault was unknown, that King was not exposed to a greater risk of assault at the rest area than was the general public, and that the nature of his duties did not create a peculiar risk of assault (such as that encountered by employees responsible for carrying cash deposits to the bank). The Commission denied King’s claim for benefits. King appealed the Commission’s denial of benefits, but the Virginia Court of Appeals upheld the decision, leaving King with no remedy despite the horrific injuries he sustained while just doing his job.