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Virginia Comp: Bad Law, Devastating Results

Monday, September 27, 2010 | 252 | 0 | min read

By Jon Coppelman
Lynch Ryan & Associates

Last year the Insider blogged the unfortunate fate of Arthur Pierce, who died in a work-related accident, but whose claim was denied due to a glitch in the Virginia comp statute. Fearing a rash of bogus claims by workers faking severe brain injuries, the lawmakers allow insurers to deny any unwitnessed incident where the injured worker cannot testify to what happened. If Pierce had died instantly, his claim would have been accepted. By surviving for months without being able to talk, he never collected a dime.

Dan Casey, a columnist for the Roanoke Times, brings us the saga of Mike Gentry, who fell off a roof while installing a satellite dish. He survived, but suffered brain damage and severe physical trauma. While paying the claim at first (Gentry was in a coma and rehab for weeks), the insurer finally got to talk to him. Here is Mike and his wife Andrea's summary of the exchange with the claims adjuster:

    "She asked me,'Ever jumped off a roof before? Ever thought of killing yourself?'"

    "I said, 'No, and no.'"

    And then she said, "Do you remember what happened?"

    "And he said no," Andrea interjected. "Because he didn't. And she said, 'OK, that's all I need.'"

Thus, in accordance with the peculiar and patently unfair Virginia law, the claim was denied. Ironically, just 12 days before Gentry fell off the roof, an attempt to change the Virginia statute, instigated by Arthur Pierce's widow, was defeated in committee. The revision would have allowed brain injured workers the same presumption of compensability as workers killed on the job. In the words of insurance lobbyist and attorney Charles Midkiff, any changes in the current law would be "an invitation to fraud."

It was only through the kindness of strangers that Gentry and his family were able to survive the months without any insurance benefits. Then a minor miracle occurred: Gentry's memory of the incident came back. Not all at once, but gradually. First, he remembered that the battery on his power drill died. A few more memories filtered in. Finally, about a month after the initial recall, he remembered everything. He was climbing down to get a replacement battery from his truck, when the ladder slid and he fell.

< b>(Over)Due Process

Armed with this new information, Gentry filed for benefits. The carrier, defended by who woulda guessed? attorney Midkiff, managed to delay the hearing for months (from December 2009 until April 2010). Finally, three hours before the rescheduled hearing, the carrier caved and accepted the claim.

Mike Gentry will never work again. He has double vision, his speech is slurred and he is frequently exhausted. He has severe seizures and difficulty thinking. He takes 10 medications daily. But he and his family are finally protected by the workers comp safety net no thanks to a carrier following the letter of the law, and no thanks to the legislators who think workers are going to fake brain injuries in order to qualify for benefits.

In the words of the immortal Frank Zappa: "The United States is a nation of laws: badly written and randomly enforced." Not true of most laws, but certainly applicable to this bizarre and completely unnecessary provision of Virginia's comp statute.

Jon Coppelman is a principal of Lynch Ryan & Associates, an employers consulting firm in Massachusetts. This column was reprinted with his permission from the firm's blog, http://www.workerscompinder.com

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