Virginia Workers Compensation & Social Security Disability Lawyer

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Effort to Change Virginia's Workers' Compensation Death Presumption Fails

Virginia has a rather peculiar workers compensation law. If the worker is found dead at the scene of his/her accident, the worker's accident is "presumed" to have arisen out of his work. However, if the worker lives for even a few minutes after his/her accident, then the worker does not receive this death presumption. Then, the worker's dependents can be denied benefits unless there is some other evidence proving how the accident occurred. This of course can be difficult since the best witness is dead.

This can work a real injustice. The worker who dies or loses consciousness as the result of an accident often cannot testify regarding the cause of his accident. Many years ago the Virginia Supreme Court decided to apply a presumption in death cases. This presumption meant if the worker was found dead at the scene of his/her accident it would be "presumed" the accident arose out of his/her work.

In a recent September 2006 case, a worker named Pierce was found unconscious at the scene of his accident. He lived for some months after his accident in a coma but remained comatose. Pierce had over $1,000,000.00 in medical bills. Pierce's widow asked the Virginia Workers' Compensation Commission to apply the death presumption to Pierce's case. The Commission declined stating:

"Case law is clear that the death presumption does not apply where the claimant is not found dead at the scene of the accident but rather dies subsequently. The fact that the defendants have stipulated that Mr. Pierce's death was a direct result of his workplace injuries does not alter the claimant's burden of proof requiring that he establish the initial injury as compensable."

In another case, a worker was injured in a motor vehicle accident but lived for 35 minutes. The Commission again refused to apply the presumption and claimant lost because the accident was unexplainable.

An attempt was made in the Virginia Legislature to change the law as a result of the Pierce case. In the 2008-2009 General Assembly a bill was introduced by Virginia State Senator Richard Stuart to expand the death presumption to include brain injured workers who survived their accidents. This attempt failed when business interests contested the change in the law.

Copyright© 2009, Jerry Lutkenhaus. ALL RIGHTS RESERVED

This may be considered AN ADVERTISEMENT or Advertising Material under the Rules of Professional Conduct governing lawyers in Virginia. This note is designed for general information only. The information presented in this note should not be construed as legal advice.

I have been representing claimants in Virginia for over 30 years. In the July 1999 issue of Richmond Magazine I was rated one of the Best Workers' Compensation Lawyers in Central Virginia. In 2003 I received the "AV" rating from Martindale-Hubbell, its highest rating for lawyers. You can get more information from http://www.virginiadisabilitylawyer.com or http://www.geraldlutkenhaus.com

How to Value a Workers Compensation Claim? (a Virginia Lawyer's perspective)

Effort fails to change Virginias Workers Compensation Death Presumption Law

Impaired by a Stroke: Is Social Security Disability Available for this?

A stroke can result in a serious impairment. However, it is not necessarily disabling. Social Security has a strict set of guidelines regarding strokes. Social Security will consider your remaining functional capacity for work after your stroke.

1. Your age can be a very important factor. If you are under age 50 and can still do some form of work such as clerical work then your stroke  will probably not entitle you to benefits.

2. Your age can work in your favor. If you are over 55 with only a high school education and a past history of manual labor, then you would have a very good case for disability if your stroke now prevents you from doing manual labor. Social Security says in order to do Light Duty Work you must be able to stand and walk six hours out of an eight hour work day.  If this function is now impaired and you are over 55, you may have a strong case for disability.

3. Your past work experience is an important factor. As noted above, a past history of only manual labor can make your case for disability much easier with a stroke. This is especially true with a stroke if it means you have some partial paralysis that prevents manual labor.

4. Conversely, a past history of only clerical work may mean you can easily return to that type of work despite your stroke. This is so because clerical work is usual considered very light work or sedentary work.

5. The skill level of your past work is also important. As a general rule the more skills you possess the more difficult it is going to be to obtain disability benefits. This is so because a skilled worker can transfer his/her skills to many different occupations many of which may be light enough to do even after a stroke. A professional can still do his work behind a desk even though he now has to use a cane due to the stroke. However, if his speech is impaired by the stroke then perhaps he cannot do his former work.

6. When it comes to a stroke, an opinion from a neurologist  regarding one ‘s functional abilities can be decisive in a disability case. But a simple statement that one is "disabled" is not enough. It is better if the physician prepares a comprehensive statement describing how one's abilities to lift, walk, sit, etc. are compromised by the patient's stroke. In my cases I almost always have a Stroke Functional Evaluation completed by the treating neurologist or if one is not available then the claimant's primary treating physician will have to do the report.

7. The neurological  impairment listings are found at 11.04 of Social Security's Listing of Impairments. If a neurologist  says your impairment meets or equals one of these listings then your case for disability will be very strong.

8. An important measure of your remaining functional ability is any paralysis due to the stroke. A neurologist can measure your remaining functional capacity after the stroke.  An important factor is whether or not you need a cane or a walker to walk.

If you are denied on your initial application, you should consult an attorney who specializes in Social Security Disability. You can review my other article on "How to Find the Best Virginia Social Disability Lawyer" for some tips on finding an experienced Social Security Disability attorney.

• Previous Posts:

• Effort to Change Virginia's Workers' Compensation Death Presumption Fails
• How to Value a Workers Compensation Claim? (a Virginia Lawyer's perspective)
• Effort fails to change Virginias Workers Compensation Death Presumption Law
• Can an Illegal Alien Get Workers' Compensation in Virginia?
• Disabled, No Pension & No Savings: Now What Do You Do?
• Impaired by a Stroke: Is Social Security Disability Available for this?
• Lupus: Is Social Security Disability Benefits Available for this Impairment?
• Virginia Workers Compensation Claim: Will Any Lawyer Do?

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