24 April 2012

Virginia Treats TBI As Dismissable Injury

Story first appeared on WorkersCompensation.com.
Seems a bit hard to believe, but in Virginia if a worker suffers a brain injury that prevents them from remembering the accident, it is not a compensable injury under workers’ compensation insurance. Even after an attempt to correct this elephant sized loophole, the state recently ruled that a man who fell off a roof and suffered traumatic brain injury – an injury that has left him wheelchair bound and permanently disabled, is not eligible for benefits.

The reason? At a hearing he could remember his name and age, but not remember the incident.

A 2011 law sponsored by a Representative and a Senator was intended to close the loophole that disallowed benefits for anyone who could not testify as to the accident that injured them. It provides a presumption that the accident was work related if a worker is physically or mentally unable to testify because of his injuries.

However, when the man fell off the roof of a garage he was building, fractured his skull and developed a blood clot in his brain that nearly killed him, he was denied workers' compensation benefits. At a workers’ compensation hearing, it was the fact that he knew his name and his age that did him in. The Workers' Compensation Deputy Commissioner apparently ruled that the State legislators only intended that the new law apply to fatally injured workers or those in comas who are completely unable to testify.

It seems that:
In Virginia, if you have an accident on the job resulting in a severe brain injury, you had best be in a coma or dead, or the state will rule that it was not a compensable incident. The fact that you can sit in a chair and utter your name is enough to convince bureaucrats that you are good to go.

The decision was made because of the absence of case law he could use to figure out the legislature's intent when they enacted it. Does the state of Virginia really believe that the legislature merely intended to make benefits available for brain injured dead people? And that somehow an on the job brain injury isn’t an on the job brain injury? Unless it puts someone in a coma or a box?

The message in Virginia is clear. If you are going to fall off a roof, make sure it is from the third story or higher.

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