Posts Tagged ‘Virginia’

Virginia’s No Brainer

Monday, April 11th, 2011

We have long puzzled over a peculiar and cruel stipulation in Virginia’s workers comp statute that denies coverage to workers with brain injuries, where the injury had no witnesses and the injured could not testify on their own behalf. We first encountered the issue with a trucker named Arthur Pierce, who was found unconscious beside his truck with multiple skull fractures, a sinus facture and head trauma. Had Pierce been found dead at the scene, the injury would have been compensable. But because survived the accident only to die later at a hospital, the system invoked the rule that the claimant must provide direct testimony.
In their denial of benefits, the workers comp commission wrote:

The circumstances surrounding the claimant’s injury and death are tragic, and we are certainly sympathetic to the loss his family members have experienced. We are also mindful of the difficulties in obtaining and introducing sufficient evidence to support those claims…It would be purely speculative to infer that the only rationale (for the accident) was a workplace risk.

Purely speculative?. Sure, he might have been knocked off the truck by space aliens (which, to my mind, would still be compensable as he clearly was in the course and scope of employment).
Ever-So-Gradual Justice
We are pleased to report that the Virginia legislature – through a unanimous vote in both house and senate – has corrected the statute, which Governor Bob McDonnell has signed into law. Title 65 of the Code of Virginia now reads:

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 the injury was work-related, it should be presumed in the absence of a preponderance of evidence to the contrary that the injury was work related.

It’s too late for Claire Pierce, Arthur’s widow, to benefit from a law that she diligently lobbied for. And while the Virginia legislature would never thumb its nose at the comp board, it would have been nice to call Title 65 the “Arthur Pierce Provision.” This grotesque loophole has finally been closed. Unwitnessed brain injuries may now be compensable. It appears to be a no-brainer, but it took the brains of Virginia a rather long time to reach this just conclusion.
Thanks to Workcompcentral(subscription required) for the heads up on this item.

Yes, Virginia, There Might Be a Sanity Clause

Tuesday, January 25th, 2011

Two years ago we blogged the sad story of Arthur Pierce, a commercial driver in Virginia who suffered a traumatic brain injury and eventually died from a fall on the job. Pierce’s death was deemed non-compensable due to a cruel and rather peculiar glitch in the Virginia comp statute. Under the law, if a worker suffers a brain injury that is not witnessed by others, and the worker is unable to provide details on the injury (Pierce was found in a coma from which he never emerged), the incident is not compensable. There is no room for judicial discretion: no testimony, no benefits.
We also blogged a more recent incident, where Dan Casey, a cable installer, fell off a roof. Again, there were no witnesses and again, in the days and weeks following the incident, Casey had no memory of what happened. Fortunately for him and his family, he eventually was able to remember some of the details. With some reluctance, the insurer settled the case.
The problem, obviously, lies in the Virginia comp statute. Rather than allow the comp system the normal latitude in determining compensability, the law rigidly lays out a harsh standard: if there are no witnesses, the employee must provide the narrative. In the absence of a narrative, there can be no compensability. In the above rare but compelling circumstances, seriously injured workers were unable to provide details on exactly what happened.
The Fix is In?
There is finally some movement toward amending the faulty statute. Here is the language of a bill which recently made its way out of committee, onto the floor of the Virginia House:

Workers’ compensation; presumption that injury arises out of employment. Creates a presumption that a workplace injury results from an accident arising out of employment for purposes of the Workers’ Compensation Act if the employee is found dead or to have incurred a brain injury resulting from external mechanical force that impairs the employee’s brain function to such an extent that the employee is incapable of recalling the relevant circumstances of the accident. A judicially created presumption currently exists when an employee is found dead as the result of an accident at his place of work and there is no evidence offered to show what caused the death or to show that he was not engaged in his employer’s business at the time.

Note that the brain injury must be the result of “external mechanical force” – no aneuryisms need apply. This revision would crack open the door to compensability just enough for a grievously injured Arthur Pierce or Dan Casey to slip through.
Pierce’s widow has been lobbying the legislature to address this gaping hole in coverage for Virginia workers. She has nothing to gain, as the changes will not be retroactive. But it would be comforting to think that workers who suffer severe brain injuries on the job in the Old Dominion State will have recourse to the protections that are virtually universal for all workers. That would be a sanity clause, indeed.

Virginia Comp: Bad Law, Devastating Results

Monday, September 20th, 2010

Last year the Insider blogged the unfortunate fate of Arthur Pierce, who died in a work-related accident, but whose claim was denied due to a glitch in the Virginia comp statute. Fearing a rash of bogus claims by workers faking severe brain injuries, the lawmakers allow insurers to deny any unwitnessed incident where the injured worker cannot testify to what happened. If Pierce had died instantly, his claim would have been accepted. By surviving for months without being able to talk, he never collected a dime.
Dan Casey, a columnist for the Roanoke Times, brings us the saga of Mike Gentry, who fell off a roof while installing a satellite dish. He survived, but suffered brain damage and severe physical trauma. While paying the claim at first (Gentry was in a coma and rehab for weeks), the insurer finally got to talk to him. Here is Mike and his wife Andrea’s summary of the exchange with the claims adjuster:

“She asked me,’Ever jumped off a roof before? Ever thought of killing yourself?'”
“I said, ‘No, and no.'”
And then she said, “Do you remember what happened?”
“And he said no,” Andrea interjected. “Because he didn’t. And she said, ‘OK, that’s all I need.'”

Thus, in accordance with the peculiar and patently unfair Virginia law, the claim was denied. Ironically, just 12 days before Gentry fell off the roof, an attempt to change the Virginia statute, instigated by Arthur Pierce’s widow, was defeated in committee. The revision would have allowed brain injured workers the same presumption of compensability as workers killed on the job. In the words of insurance lobbyist and attorney Charles Midkiff, any changes in the current law would be “an invitation to fraud.”
It was only through the kindness of strangers that Gentry and his family were able to survive the months without any insurance benefits. Then a minor miracle occurred: Gentry’s memory of the incident came back. Not all at once, but gradually. First, he remembered that the battery on his power drill died. A few more memories filtered in. Finally, about a month after the initial recall, he remembered everything. He was climbing down to get a replacement battery from his truck, when the ladder slid and he fell.
(Over)Due Process
Armed with this new information, Gentry filed for benefits. The carrier, defended by – who woulda guessed? – attorney Midkiff, managed to delay the hearing for months (from December 2009 until April 2010). Finally, three hours before the rescheduled hearing, the carrier caved and accepted the claim.
Mike Gentry will never work again. He has double vision, his speech is slurred and he is frequently exhausted. He has severe seizures and difficulty thinking. He takes 10 medications daily. But he and his family are finally protected by the workers comp safety net – no thanks to a carrier following the letter of the law, and no thanks to the legislators who think workers are going to fake brain injuries in order to qualify for benefits.
In the words of the immortal Frank Zappa: “The United States is a nation of laws: badly written and randomly enforced.” Not true of most laws, but certainly applicable to this bizarre and completely unnecessary provision of Virginia’s comp statute.
NOTE: The Insider is quoted in course of Casey’s fine article.

Compensable Shampoo?

Friday, November 6th, 2009

Ginger Wilson works as a librarian in Montgomery County, Virginia. One day she arrived at work, got out of her car and headed for the library entrance. Then she remembered that she had a hair appointment at noon, so she returned to the car and opened the door to fetch a bottle of shampoo. A gust of wind caught the door, which slammed against her. She fell, breaking her wrist.
Compensable under workers comp? Not likely, as the return to the car was a definitive deviation from her work routine – she had already exited the car and was headed toward the library. The fetching of shampoo was a personal errand, having nothing to do with work.
Ah, but this is Montgomery County, home of the $32 million comp problem. Ginger was awarded $5,500 in comp benefits, covering her medical costs and six weeks of lost time.
Associate County Attorney Susan Chagrin (who immediately earns a place on my All Name team for attorneys) has sued Ginger for repayment, asserting that the injury had nothing to do with employment. I’m with Chagrin, but to our mutual chagrin, the county is unlikely to prevail. There is nothing fraudulant in Ginger’s filing a claim. She apparently was completely candid about the circumstances of the injury. The claim was accepted by the adjuster. Getting money back on this one is likely to be as difficult as the proverbial putting toothpaste back into the tube.
I have a few random questions for Montgomery County and for Ginger:
1. Why does a librarian with a broken wrist have to miss 6 weeks of work? Library work is about as light duty as it gets.
2. If Ginger returned to her car for the specific purpose of fetching the shampoo, why is she still in “the course and scope of employment”?
3. According to her testimony, Ginger planned to “eat my lunch while I was getting my hair done.” Excuse me and with all due respect, that is a truly revolting example of multi-tasking.
4. Finally – admittedly a bit off point – why does Ginger have to provide her own shampoo for a hair appointment?
As is so often the case, the best opportunity for controlling the outcome of questionable claims is at the beginning. If compensability is in doubt, adjusters should take aggressive action at the outset. Given the particulars of Ginger’s situation (at least as this article presents them), there was enough evidence to deny the claim when it was first filed. Once accepted as compensable, however, it’s unlikely that the decision could be reversed. Ms. Chagrin, in all likelihood, will remain, well, chagrinned.

Cavalcade of Risk #80 is posted; other news notes

Wednesday, June 17th, 2009

Get your biweekly fill of risk-related blog posts – Rita Schwab does a great job in hosting Cavalcade of Risk #80 at her blog Supporting Safer Healthcare.
And in other news …
Construction – According to the release of a report from the Workers Defense Project, Texas is the most dangerous state in the union for construction workers. In 2007, 142 Texas construction workers died, more than any other state. California ranked second, with 81 deaths. According to the report, surveys with more than 300 construction workers revealed that more than two-thirds of the respondents did not receive basic safety training before starting their jobs.
VA compensability – Jon quoted in WaPo – In February, my colleague Jon Coppelman posted about the case of a Virginia truck driver who was found by the side of the road laying by his truck and who subsequently died after lingering in a coma. Sunday, The Washington Post covered the story of Arthur Pierce quoting John and Workers Comp Insider about the attempt by Pierce’s wife to change Virgina law related to cases like her husband’s. Apparently, investigators who reconstructed the scene learned that Pierce fell about 12 feet and injured his head. If he had been found dead at the scene, the fatal injuries would have been presumed to arise out of employment, but due to a quirk in the Virgina law, that presumption does not extend to those who linger for a matter of time before dying, even if that time is just a few hours. So far, her efforts to change the law have been unsuccessful but she plans to try again in January.
Slim Jim Plant Explosion Insurance Journal has a report that investigators at the scene of last week’s North Carolina Slim Jim tragedy have determined that a gas leak caused the explosion and that the ATF has concluded the explosion was an accident and closed its criminal investigation.
NIOSHProtect your family from take home toxins – report on exposures to substances such as lead, asbestos and beryllium, transported from the workplace to home.
Seasonal Safety – Florida AgSafe had a good library of safety articles and guidelines for agricultural workers – also, check out their Safety News and Notes newsletter, which is archived on the site or you can sign up to get them by mail.

Suffering for Art

Monday, June 8th, 2009

Alan Rosenbaum is a revered professor of art at Virginia Commonwealth University (VCU). He shows students how to work with clay – at least, he used to, until he was disabled by silicosis. Rosenbaum was exposed to silica dust in the clay mixing room and ceramic studios of the university. The state Workers Compensation Commission last year found that the professor’s silicosis was caused by his exposure to hazardous dust and awarded him permanent disability benefits totaling $211,800.
Silica is a common mineral found in clay, sand and rock. The dust in the VCU’s Fine Arts Building came from the powder that students and staff mixed with water to make clay, as well as from scraping kilns clean of bits of clay and glaze after firing. There are intake vents directly above the five mixing machines, designed to take in dusty air and run it through a filter before releasing it outside the building. However,the vents failed to function properly, because for five years university staff members taped plastic bags over them, apparently to keep the dust from spreading elsewhere in the building. (There were complaints from woodworking and other shops that the dust migrated from the intake vents into work areas.) By blocking the vents, all the dust was contained in the ceramics area.
In addition to the vents being blocked, janitors swept the floors daily, causing the dust to fill the air for thirty minutes or more.
The Hazards of Sand
Ironically, VCU art classes included instruction on the hazards of silica in clay. (Here is a fascinating, if somwhat bizarre MSDS sheet on sand. It might make you think twice about heading for the beach…) It is hardly surprising to learn that students and teachers ignored the warnings.
Air-quality tests conducted by VCU staff after Rosenbaum’s diagnosis found dust levels were 98 percent below hazardous levels — but VCU did the testing after removing plastic bags that blocked the ventilation vents. In addition to activating the vents, janitorial staff began using sweeping compound to capture fine particles before they were released in the air. In other words, mitigation of the risk was readily available, but such measures were not implemented until Professor Rosenbaum became ill.
As in Julie Ferguson’s post last week on laboratory hazards, this situation in the art studio of a major university reminds us that education is not without risk. A little learning can quickly become dangerous. The budding artist working with clay and the mason cutting a cinderblock face essentially the same hazard. Dust is dust. If we are not careful, dust can speed our return to the dust from which we all come. That’s one lesson that Professor Rosenbaum is unlikely to forget.

Thoughts in the aftermath of a tragedy

Wednesday, April 18th, 2007

Our hearts go out to the Virginia Tech community in their time of mourning. What a terrible event and what a sad reminder that life is short and and can be snatched from us and those we love at any moment in the most unlikely of circumstances. Perhaps the best memorial we can offer to the deceased is to redouble our efforts to live with kindness and goodwill. That, and to reach out and hug our loved ones.
Be alert for your employees’ reactions to this event. A horrible incident like this can take a psychic toll on many – even those who are remote observers with no actual connection to the event can suffer emotional stress. This is particularly true for those who have previously been involved in episodes of violence. Events of this nature can rekindle or exacerbate post-traumatic stress disorder for people unrelated to the actual event. For others, it can bring repressed fear and anxiety to the surface. The continual media drumbeat 24/7 and focus on sensational details can add to general distress.
In the aftermath of this and other horrors, we seek to make sense of senseless events. It’s natural that many would look to find someone or something to blame beyond the deceased perpetrator. Right now, many are looking to the university’s security procedures and questioning why the campus wasn’t locked down after the first shooting. That’s a valid question. Of course, it’s easy in hindsight to say what should have been done, but the reality can be more complex, so we will need to wait for the investigation to answer this and many other questions. Certainly, Columbine delivered some hard lessons about how things could have been handled better to minimize loss of life. Recommendations from follow-on Columbine investigations have been adopted by law enforcement personnel nationwide, and may already have saved lives.
The psychology of security
Can a community of 30,000 ever be securely locked down against a deliberate and cunning killer? Bruce Schneier presents a sober look at the issues of risk management and security in his excellent article, The Psychology of Risk. He points out that security is both a mathematical reality that can be calculated and a feeling based on psychological reactions to both risks and countermeasures. In regard to the latter, he notes:

* People exaggerate spectacular but rare risks and downplay common risks.
* People have trouble estimating risks for anything not exactly like their normal situation.
* Personified risks are perceived to be greater than anonymous risks.
* People underestimate risks they willingly take and overestimate risks in situations they can’t control.
* Last, people overestimate risks that are being talked about and remain an object of public scrutiny.

He goes on to present several examples of how and why people exaggerate some risks and downplay other risks, often in complete disregard to the mathematical realities. These perceptions influence our expenditures of time and effort:

“Why is it that, when food poisoning kills 5,000 people every year and 9/11 terrorists killed 2,973 people in one non-repeated incident, we are spending tens of billions of dollars per year (not even counting the wars in Iraq and Afghanistan) on terrorism defense while the entire budget for the Food and Drug Administration in 2007 is only $1.9 billion?”

Noting that absolute security is an impossibility, Schneier frames the matter of relative security as a trade-off. We measure the time, expense and inconvenience of a given security measure against our perception of the risk. If that perception is faulty, it’s an irrational trade off that doesn’t do much to increase our security.
After a tragedy, emotion often prevails over dispassionate rationality. Thus we can’t carry shampoo on planes and we strip down to almost our skivvies in airports. Does that make us safer or does it just make us feel safer? It’s unlikely that any measures can be thorough enough to guard us from a random determined killer in our midst. Efforts might be better spent trying to determine the root causes of why there are so many random determined killers in our midst.
Schneier’s article presents interesting, well-framed ideas in well-written format. Whether you work in the business of risk or just live in a risky world, it’s worth a read.