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Virginia's No-Brainer

Friday, April 15, 2011 | 357 | 0 | min read

By Jon Coppelman
Lynch Ryan & Associates

We have long puzzled over a peculiar and cruel stipulation in Virginia's workers comp statute that denies coverage to workers with brain injuries, where the injury had no witnesses and the injured could not testify on their own behalf. We first encountered the issue with a trucker named Arthur Pierce, who was found unconscious beside his truck with multiple skull fractures, a sinus facture and head trauma. Had Pierce been found dead at the scene, the injury would have been compensable. But because survived the accident only to die later at a hospital, the system invoked the rule that the claimant must provide direct testimony.

In their denial of benefits, the workers' comp commission wrote:

    The circumstances surrounding the claimant's injury and death are tragic, and we are certainly sympathetic to the loss his family members have experienced. We are also mindful of the difficulties in obtaining and introducing sufficient evidence to support those claims...It would be purely speculative to infer that the only rationale (for the accident) was a workplace risk.

Purely speculative?. Sure, he might have been knocked off the truck by space aliens (which, to my mind, would still be compensable as he clearly was in the course and scope of employment).

Ever-So-Gradual Justice

We are pleased to report that the Virginia legislaturethrough a unanimous vote in both House and Senatehas corrected the statute, which Governor Bob McDonnell has signed into law. Title 65 of the Code of Virginia now reads:

In any claim for compensation where the employee is physically or mentally unable to testify as confirmed by competent medical evidence and where there is unrebutted prima facie evidence that indicates the injury was work-related, it should be presumed in the absence of a preponderance of evidence to the contrary that the injury was work related.

It's too late for Claire Pierce, Arthur's widow, to benefit from a law that she diligently lobbied for. And while the Virginia legislature would never thumb its nose at the comp board, it would have been nice to call Title 65 the "Arthur Pierce Provision." This grotesque loophole has finally been closed. Unwitnessed brain injuries may now be compensable. It appears to be a no-brainer, but it took the brains of Virginia a rather long time to reach this just conclusion.

Thanks to WorkCompCentral(subscription required) for the heads up on this item.

Jon Coppelman is a principal with Lynch Ryan & Associates, a Massachusetts-based employer consulting firm. This column was reprinted with his permission from the firm's blog, at http://www.workerscompinsider.com

Comments

JOHN SHILTS Nov 3, 2016 07:58 AM

Workers' compensation was created as a substitute remedy for the rights available at common law. Most state constitutions pre-exist workers' compensation statutes enacted by legislatures. Most state constitutions guaranty a remedy for injury. In my state, Oregon, if the substitute remedy isn't available per the action of the legislature, then the injured worker may sue his employer in circuit court (see Smothers v Gresham Transfer, Inc.) I imagine this has already been tried in Virginia, as many other cases like it exist nationally. Dr. Emily Spieler (sp?) of neighboring West Virginia has written on this subject.

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