Man's Widow Tries to Change Workers' Compensation Law in Va.

Claire Pierce of Stafford and daughter Lisa look at pictures of Arthur Pierce, who died after a fall left him brain injured and comatose.
Claire Pierce of Stafford and daughter Lisa look at pictures of Arthur Pierce, who died after a fall left him brain injured and comatose. (By John Mcdonnell -- The Washington Post)
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By Chris L. Jenkins
Washington Post Staff Writer
Sunday, June 14, 2009

On a damp early morning in September 2006, trucker Arthur Pierce was found lying next to his rig, unconscious in a small pool of blood.

No one saw what happened to Pierce, 64, in the Owen Trucking parking lot outside Fredericksburg, but investigators who reconstructed the scene would later testify that Pierce, while getting ready for his daily drive, had fallen about 12 feet from the top of a ladder on the side of his truck and hit his head on the concrete.

He remained in a coma and died 16 months later, never able to tell his family or supervisors what happened that morning. Pierce, a retired IBM engineer, was working as a trucker between stints as a tour guide for youth and international groups.

Thinking that she would be able to help pay his medical bills through workmen's compensation, Pierce's wife, Claire, filed a claim. She was denied twice: once by Owen's insurance company, then by the Virginia Workers' Compensation Commission. In both cases, officials found that because Pierce was not able to testify about the accident -- even though it happened at work after he had clocked in -- there was not enough evidence to award benefits.

And in a legal twist, Claire Pierce discovered something even more baffling: Had her husband died immediately from his fall, the family probably would have won the case. Virginia law generally presumes that when a person dies at a work site, it is considered a work-related injury. But because Pierce was severely brain injured and remained comatose, he was not eligible for benefits. And it was irrelevant, according to the state, that he died later.

"I couldn't believe what I was hearing," said Claire Pierce, a legal assistant from Stafford who had been married to Pierce for 40 years. "It just seemed incredibly unfair that if he had died, it would be work-related, but if he doesn't die, it's not work-related. It doesn't seem to make any sense."

Now, Pierce is fighting a one-woman crusade to get state law changed so that people like her husband -- severely brain injured and unable to testify on their own behalf -- can receive the same presumption as those who die immediately in similar situations. She was unsuccessful during the last General Assembly session; her effort failed in the Senate Commerce and Labor Committee. She said she will try again in January.

"The death presumption for these cases in Virginia is very narrow," said Greg Harbison, a lawyer who filed Pierce's case with the workers' compensation commission. "The theory is that dead people can't talk, so in our mind, there should be no difference for those who are so severely brain injured that they can't testify on their own behalf.

"From a legal standpoint, [Claire Pierce] would have been better off with him dying immediately in terms of collecting workers' compensation and death benefits," Harbison said.

Arthur Pierce's health insurance paid $1 million in medical costs; the family paid about $60,000 out of pocket. His workers' compensation benefits would have been about $2,000 a month.

Harbison said there have been cases in Virginia in which victims of severe brain injury have died just hours after an accident but also were denied benefits because they did not die at the scene.

To qualify for workers' compensation benefits, an employee's injuries must result from an event "arising out of" and "in the course of" employment. The claimant has the burden of showing that there is a causal connection between the conditions under which the work is required to be performed and the resulting injury.

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