“A matter for the legislature…”
Posted by: Doug in Disability, Disease Claims, Job Accidents, Social Security, Workers Compensation
With those words, I was told by the Supreme Court of Virginia that they would not award benefits for my client, who was dying of berylliosis. He had worked on rocket propellent experiments in Alexandria for much of his 38 year career with Atlantic Research, and of the 20 other men who did this kind of work, he was the only one still alive.
This disabled man came to ABRAMS LANDAU, Ltd. when he lost feeling in his extremities and became short of breath, and we filed the workers compensation claim less than 6 months after the diagnosis from the National Jewish Medical Center in Denver, Colorado was received. However, as it had been more than 7 years since his last exposure to the dangerous material, the Virginia Workers Compensation judge dismissed the claim. This Deputy Commissioner sadly told us that the current law stated he was too late, even though had he brought the claim less than 7 years since his “last injurious exposure,” he would have shown no symptoms, missed no time from work and had no medical bills, as this latent disease, like asbestos diseases, takes decades to show up.
We appealed to the Full Commission and the Court of Appeals. Finally, when I came before the Supreme Court, I thought I would find a receptive audience, since my hard-working client brought the claim as soon as he possibly could, and there was no prejudice to the employer or insurer, who knew about the exposures, disease an sent him for annual physicals, like the rest of his deceased co-workers. However, the high court “punted.” The Justice told me, “It’s a matter for the legislature.” In other words, the highest court would not change the law, but the legislature could. However, they ignored the fact that my client might be long gone, along with his comrades, before that ever occurred, since we had been litigating the claim for over 7 years. The Virginia legislature had carved out exceptions for asbestosis, “black lung,” silicosis, mesothelioma and other latent diseases that only come from workplace exposures. But Berylliosis was not covered by the Workers Compensation Act.
The good news is that I also filed and tried his Federal Disability case in Florida, where he had retired. After several years of litigation, we won that case before a Federal Magistrate Judge at the United States District Court in Tampa. That judge not only awarded full disability benefits, but also awarded me EAJA fees, finding that the claim had been wrongfully defended by the U.S.Attorney’s office. While it was nice to receive the EAJA (which stands for Equal Access to Justice) award, the highlight of the case was the happy hugs from my client and his wife when we got the good news that he had finally been vindicated in his disability claims.
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