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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
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