NEWPORT NEWS, Va. (WAVY) — A judge ruled on Feb. 14 that Newport News Public Schools could appeal his decision that allowed Abby Zwerner to pursue a lawsuit against the district after being shot by her first-grade student.

Zwerner was shot in her classroom by her 6-year-old student at Richneck Elementary School in Newport News.

Circuit Court Judge Matthew Hoffman ruled back in November that Zwerner could proceed with her $40 million lawsuit under claims of negligence, saying the case was not a matter for worker’s compensation. Wednesday afternoon Hoffman opened the door for NNPS to appeal that ruling.

The former first-grade teacher said the school was warned multiple times of the potential threat.

Even before Wednesday’s ruling that NNPS was entitled to interlocutory appeal, the school system had already filed a worker’s comp claim on behalf of Zwerner, against her wishes.

One of Zwerner’s attorneys, Diane Toscano, said the filing was against her client’s wishes.

“We haven’t seen something like this happen where you have your civil case going forward in the circuit court, and then the employer turns around and files for worker’s compensation,” Toscano said.

The 6-year-old boy got the gun from the purse of his mother Deja Taylor. She was convicted on gun and child neglect charges.

Attorneys for the school system said because the boy was special education, Zwerner was at elevated risk in her classroom. Zwerner’s attorneys disagree.

“If the Worker’s Compensation Commission finds that this injury is compensable, and that is upheld by the Supreme Court of Virginia at any point, it nullifies this entire proceeding no matter what,” attorney for the school system Anne Lahren said in court.

Zwerner is suing Newport News Schools for $40 million. The case was set for trial for January of next year, but this latest development could push that date back.

“We would like to be able to do our discovery, and we’d like to hold our trial date because Abby will have waited two years by January for anything to happen,” Jeffrey Breit said, another of Zwerner’s attorneys. “We think the judge will understand that.”

Both sides said Wednesday that the case is likely headed for the Virginia Supreme Court.

“If this becomes a worker’s comp claim, then every teacher in Newport News will have the expectation of getting shot in their classroom in their job description,” Breit said. “They’ll respond, ‘You don’t pay me enough for that.'”