Effort Fails to Change Virginia’s Workers’ Compensation Presumption of Death Law

Virginia has a rather peculiar workers’ compensation law. If the worker is found dead at the scene of his accident, it is “presumed” that the worker’s accident occurred outside of his job. However, if the worker lives even a few minutes after his accident, then the worker does not receive this presumption of death. The worker’s dependents can then be denied benefits unless there is some other evidence to show how the accident occurred. Of course, this can be difficult, as the best witness is dead.

This can produce a real injustice. The worker who dies or loses consciousness as a result of an accident is often unable to testify about the cause of his accident. Many years ago, the Virginia Supreme Court decided to apply a presumption in death cases. This presumption meant that if the worker was found dead at the scene of his accident it would be “presumed” that the accident occurred outside his work.

In a recent case from September 2006, a worker named Pierce was found unconscious at the scene of his accident. He lived a few months after his accident in a coma, but remained in a coma. Pierce had more than $ 1,000,000.00 in medical bills. Pierce’s widow asked the Virginia Workers’ Compensation Commission to apply the presumption of death to Pierce’s case. The Commission refused stating:

“The jurisprudence is clear in the sense that the presumption of death does not apply when the plaintiff is not found dead at the scene of the accident, but later dies. The fact that the defendants have stipulated that Mr. Pierce was a direct result of his workplace injuries does not alter the plaintiff’s burden of proof requiring him to establish the initial injury as compensable. “

In another case, a worker was injured in a car accident but lived 35 minutes. The Commission again refused to apply the presumption and the plaintiff lost because the accident was inexplicable.

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, Virginia State Senator Richard Stuart introduced a bill to expand the presumption of death to include brain-injured workers who survived their accidents. This attempt failed when business interests challenged the change in the law.

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