The denial of even the limited benefits of workers compensation to severely disabled due to brain injury due to a loophole in Virginia law has several legislators looking to fix the law this session. House Bill 1475 would help workers injured in unwitnessed accidents who are unable to recall the circumstances of the incident due to head injury, brain trauma and memory loss. The proposed legislation is in response to the case of Roanoke County resident Mike Gentry, who was denied benefits for more than a year after falling from a roof while installing a satellite dish. Gentry’s head injury rendered him unable to remember the accident for five months and, because no one saw his fall, his workers’ compensation claim was denied due to lack of evidence according to the Virginia Pilot.
The legislation creates a presumption that such injuries are work-related unless there is “substantial evidence to the contrary.” There also must be medical evidence that the injured worker is physically or mentally unable to testify about the incident. This remedy would be similar to the rule in fatal on the job accident cases. In workplace fatality cases, if the victim is found at a place, time and manner consistent with his or her work duties, then a “presumption” is created that the manner of death was compensable. The employer, their insurance company and lawyers can present evidence to “rebut the presumption,” but the law shifts the “burden of proof” from the survivors to the company. Likewise, Herndon workers comp lawyer Doug Landau hopes that by shifting the burden of proof from the brain damaged worker to the insurance company, unjust results such as that in the Gentry case will hopefully avoided in the future, and some of the most badly injured workers in Virginia will get the medical care and rehabilitative services they so desperately need.