The Blog Formerly Known As Practical Paralegalism
Claire Pierce, a Virginia legal assistant, has taken on the Virginia legislature in an effort to change state law to expand the current presumption that when a worker dies immediately at a work site it is work-related, to include those who do not die immediately at the scene and are unable to testify on their own behalf.
Ms. Pierce has firsthand experience trying to recover workers’ compensation benefits following the death of her husband of 40 years, Arthur “Art” Pierce, in September 2006. A truck driver employed by Owen Trucking, he was found lying by his rig, “unconscious in a small pool of blood.” The cab of the truck was open and his breakfast from McDonald’s was on the seat. However, due to severe head injuries, he was never able to describe what happened to him and died 16 months later.
There were no witnesses to the incident, but an expert in injury biomechanics, Dr. Richard Kent, reviewed extensive evidence, and testified at the hearing that the nature of Mr. Pierce’s injuries was consistent with a fall from a height. Mr. Pierce’s treating neurosurgeons testified that his head injuries were consistent with a fall.
Ms. Pierce’s claim for workers’ compensation benefits as a result of her husband’s death was denied by the carrier, Zurich American Insurance Company, as well as the Virginia Workers’ Compensation Commission, which stated in its April 2009 decision that:
“The evidence [is] insufficient to support a reasonable inference that the claimant’s accident, injury and subsequent death resulted from a risk or hazard of his employment. There were no eyewitnesses to the accident, and the claimant was unable to explain the manner in which the accident occurred.”
Commissioner Diamond dissented, stating that “this accident has been sufficiently explained. Mr. Pierce was somewhere on his truck when he struck his nose, causing him to fall backward onto the pavement resulting in his death.” VWC File No. 229-99-31, Arthur Pierce v. Owen Trucking Company et al.
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.”
Provides that if an employee is found dead, or has incurred a severe brain injury at his place of employment, or in a location where their duties may have called them during work hours, the injuries shall be presumed an accident arising out of employment.
The bill failed during a January 2009 committee session because “opponents feared that the bill would increase the likelihood of workers’ comp fraud.” (Workers’ Comp Insider) Even if legislation is eventually passed to modify the current death presumption, it will not benefit Arthur Pierce’s family.
“You’re better off to get killed in Virginia than you are to be brain damaged and not be able to recall what happened,” said Stuart. (Pilot Online)
Claire Pierce has not given up and plans to try again next year.