Gerald G. Lutkenhaus Workers Compensation Law Blog on Lawyers.com

In 2009 Arthur Pierce suffered a fall and a brain injury at work. He was denied Virginia Workers Compensation because his accident was unwitnessed and due to his brain injury he could not testify. Virginia does provide a presumption if the worker is found dead at the work site. This "death presumption" provides in this circumstance the death is presumed to have been caused by work.

In Pierce's case, he was denied the death presumption because he survived his fall even though he suffered a brain injury and later died.

Pierce's widow has engaged in a campaign to change the Virgina law. This has resulted in the enactment of a new statute 65.2-105 which provides:

In any claim for compensation, where the employee is physically or mentally unable to testify as confirmed by competent medical evidence and where there is unrebutted prima facie evidence that indicates that the injury was work related, it shall be presumed, in the absence of a preponderance of evidence to the contrary, that the injury was work related.

The problem with this statute is it says the claimant has to have "unrebutted prima facie evidence" that the injury was "work related" in order to prevail. If the claimant had this evidence why would he need this presumption. Perhaps, the Virginia Workers Compensation Commission will interpret this statute in such a way as to allow a claimant to prevail in the abscence of any eyewitnesses.

For example, the worker falls from a scaffold and suffers a brain injury like Mr. Pierce. There are no witnesses. Where is the evidence the fall was caused by his work. He could just as easily have fallen due to an unrelated medical condition.

Hopefully, this was not a hollow victory for Mrs. Pierce.

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Jerry Lutkenhaus has been a practitioner of Social Security Disability law in the Richmond, VA for over 35 years. He was given an "AV" rating by Martindale-Hubbell in 2003. Richmond Magazine has listed Mr. Lutkenhaus as one of the best lawyers in central Virginia. There is more information at www.virginiadisabilitylawyer.com or www.geraldlutkenhaus.com. In 2010 he was given AVVO's highest rating of "superb" in their system. http://www.avvo.com/att orneys/23230-va-gerald-lutkenhaus-1814627.html