Landau Injury Law

In Virginia, if you are found dead at your workplace, there is a presumption that it is work-related. But, if you go into a coma, or die a day or month later, then it is not presumed to be a compensable workers compensation case and the claim may be denied if someone else cannot explain what happened to you. Herndon Reston area Workers Compensation lawyer Doug Landau of ABRAMS LANDAU, Ltd. says this is “Nuts.”

Yesterday’s Washington Post carried the true story of a trucker who died after a fall left him brain injured and comatose. No one saw what happened in the Trucking company’s parking lot outside Fredericksburg. Investigators who reconstructed the scene later testified that the trucker, while getting ready for his daily drive, had fallen 12 feet from 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.

Since the fall and injury occurred at her husband’s workplace, at a time he was expected to be there, doing what he was expected to be doing, his family thought that they would be able to get the medical bills paid through Workers Comp. However, his widow was denied twice: once by the employer’s workers compensation insurance company, and then by the Virginia Workers’ Compensation Commission. In both cases, because the injured worker 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, the worker’s widow learned 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 the trucker was severely brain injured and remained comatose, he was not eligible for benefits. And it was irrelevant, according to the Virginia Workers Compensation Commission, that he died later.

The judge (called a “Deputy Commissioner”) 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 his 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 this trucker to receive benefits in ways that many other states do not. Indeed, officials in Maryland and the District said that the injured trucker probably would have been able to collect benefits under their systems.

Doug Landau has tried similar cases, and in Maryland has prevailed where his client suffered a brain injury when struck by a stone in the quarry where he worked. While Landau’s client could not recall any details of his head injury and brain trauma, and there were no witnesses, the law in Maryland does not prevent a traumatic brain injury case from being awarded compensation when there is proof as to the time and place of an accidental injury and the elimination of other causes. Herndon and Reston area workplace injury and disability lawyer Doug Landau of ABRAMS LANDAU recommends that the Virginia Compensation Act be modified, so that workers like those described in the Washington Post yesterday, and their families, are not left without recourse, only because they were not pronounced dead at the scene.

This entry was posted on Monday, June 15th, 2009 at 6:03 pm and is filed under Auto Accidents, Disability, Insurance Coverage, Job Accidents, Slip and Fall Accidents, Taking Care of Family, Workers Compensation, brain injury. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.