RICHMOND--
In the early morning of Sept. 9, 2006, Arthur Pierce was found at work, lying by his dump truck with a head injury.No one saw what happened that morning at Owens Trucking in Stafford County.
Neurosurgeons later told his family his injuries were consistent with a fall from a height--the height, say, of his truck. The day before, Pierce had told his daughter there was something wrong with the tarp arm atop the truck, and he'd have to climb up there and fix it.
But no one was around when whatever happened to Pierce happened.
And while his family fully believes he fell off his truck while trying to fix that tarp arm, Pierce's brain injuries were too severe for him to tell anyone what happened--he could barely utter a random word.
So his family was unable to get workers' compensation, even though Pierce never recovered from his injury. He spent the following months having constant care, unable to even change the TV remote, and died in January 2008.
Pierce's wife, Claire Pierce, filed a workers' compensation claim in the fall of 2006, seeking benefits for loss of wages and payment of medical expenses. She says the trucking company's insurance company denied the claim.
So she took her case to the Workers' Compensation Commission. It was denied, she says, because the commission felt the evidence did not explain why Pierce fell. By that point Pierce had died.
An appeal by Claire Pierce's lawyer was also denied. In that denial, her lawyer was told that while the case law was clear that the death presumption--the provision in workman's comp law that says someone found dead in the workplace is presumed to have died as a result of an incident in the workplace--does not apply in cases where the employee dies later.
The fact that Pierce did die, said Deputy Commissioner Susan Stevick in a letter to the attorney, didn't change the fact that the Pierces had to establish that his original injury was compensable as a workplace injury.
"If my husband had died at the scene of his workplace accident, we would have been paid benefits, but because he fought for life for 16 months, the taxpayers, my employer, our health insurance carrier and I are bearing the full financial weight of this tragedy," Claire Pierce said in remarks she wrote to deliver to a Senate committee. "From a personal standpoint, this entire tragic situation was both financially and emotionally devastating Worker-compensation carriers are shifting the liability of traumatic brain-injury cases to families, taxpayers and health insurance carriers. The more severely injured a person is, the better the chance that the claim will be denied."
Pierce's case inspired Sen. Richard Stuart to submit a bill to the General Assembly.
Stuart's bill said that in cases like Pierce's, where an employee is found injured in the workplace, but the brain is harmed to such an extent that that employee is unable to explain what happened, the injury is presumed to have occurred as a result of something in the workplace.
That's how the law currently treats cases in which an employee is found dead in the workplace.
Stuart said it makes sense, because a brain injury that prevents the employee from either remembering what happened, or describing what happened, makes it "virtually impossible" for that employee to win a workman's compensation case.
But senators on a committee that heard the bill this week disagreed, voting down the bill after a lobbyist and a lawyer who opposed the bill argued that it could lead to workers' compensation fraud. They said it would make it too easy for workers to fake a brain injury to get compensation.
Stuart said he was disappointed.
"It's just the right thing to do for employees," Stuart said afterwards. "It shouldn't have been a financial argument."
The Pierce family says they're not giving up.
"I don't want his death to be in vain," said daughter Lisa Pierce. "I want this to help other Virginians so this can't happen to any other family. I will make this my life's mission. This is people's lives."
Chelyen Davis: 804/782-9362
Email: cdavis@freelancestar.com