Denied Benefits, Man's Widow Tries To Change Va. Workers' Comp Law

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.

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."

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