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. (By John Mcdonnell -- The Washington Post)
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In cases in which there is no witness to the accident and the claimant cannot testify because of a severe brain injury, state officials said they have only legal precedent to guide them. The state statute is silent on the issue. The precedent was established in a 1991 Virginia Supreme Court case.

In a letter to Harbison after Pierce died, deputy commissioner Susan Stevick wrote: "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."

Legal experts said Virginia case law seems to go out of its way to limit the ability of people such as Pierce to receive benefits in ways that many other states do not. Delaware and Kentucky have similarly strict laws, they said.

"It almost seems absurd," said Jon Coppelman, a Massachusetts legal consultant and expert in workers' compensation law who writes a well-regarded blog on such employment issues. "It certainly seems strange to me that the state would go so far out of its way to keep a claimant's hands tied behind their backs. Seems to me that this family has not been served well by a system that is designed to help those who are injured at work."

Indeed, officials in Maryland and the District said that Pierce probably would have been able to collect benefits under their systems.

"That case would not even have been contested here," said Kenneth Macleay, a member of the Maryland Workers' Compensation Commission. He said Maryland law would have presumed that Pierce's accident was work-related because he was found at the work site during business hours. The law would have compelled the employer to prove that the accident was not work-related.

Supporters of Claire Pierce's efforts said Virginia law seems unnecessarily arbitrary. "This is a matter of fundamental fairness," said state Sen. Richard H. Stuart (R-Westmoreland), who submitted the unsuccessful legislation in January. "This current law just make very little sense to me. This is a change we need to do for employees."

Opponents of the bill said the legislation was poorly worded and could have led to people faking brain injuries as a way of receiving benefits they were not entitled to.

Charles Midkiff, a prominent workers' compensation attorney in Richmond, said the effort to change the law is an "invitation for fraud." He added that this was an isolated case that should not garner what he called a wholesale shift in state workers' compensation law. (Midkiff does legal work for The Washington Post in Virginia.)

Forty-two Virginia workers' compensation claims, less than 1 percent of the total, were brain injury cases in 2007.

"The business community is not interested in changing the law," Midkiff said. "Our position is there isn't a need for change if you look at the broad constellation of cases. The burden would then shift to the employer."

For Pierce, the issue is about helping a small but significant class of injured workers who suffer the same fate as her husband.

"This won't do anything to help Art now," said Pierce, who has spent hundreds of hours researching the issue and developing the bill. "But it can help people in the future."