Outrage: Widow Caught in Legal Quandary Over Workers’ Comp Claim

For the better part of three years, Virginia widow Claire Pierce, 60, has done battle with an infuriating legal Catch-22 linked to an unfortunate on-the-job incident involving her husband.

On Sept. 9, 2006, Arthur Pierce reported to his early morning job driving a dump truck for a Stafford, Va., trucking firm. “At 6 o’clock, I get a call from his supervisor that he’s being medevaced with a head injury,” Claire Pierce says.

Arthur had been discovered lying on concrete beside his wet, slippery dump truck, unconscious and with blood flowing from his head. The retired IBM engineer had sustained a traumatic brain injury and spent the next 16 months in a near-vegetative state, under the constant care of medical professionals.

The night before he was injured, Arthur spoke of intending to fix a balky tarpaulin atop his 12-foot-tall truck, his wife says. She filed a claim with the Virginia Workers’ Compensation Commission, seeking benefits for Arthur’s lost wages and medical expenses. The claim was denied. Why? Under Virginia law a worker’s injuries are not presumed as job related if the worker can’t convey what happened.

“How can anyone who’s got a traumatic brain injury comply with that requirement?” Claire Pierce asks. “If you’re in a position like he was in, you can’t even communicate!”

Had Arthur died immediately, his widow probably would have won her claim easily. Virginia law carries a presumption that injuries suffered by deceased employees are linked to their employment.

“Existing Virginia case law from the Court of Appeals is fairly clear that the death presumption only applies when the injured worker is found dead at the scene,” says Jim Szablewicz, chief deputy commissioner with the Virginia Workers’ Compensation Commission. “It is always the injured worker’s burden to prove that the injury sustained arose out of and in the course of employment.”

Claire Pierce, a legal assistant whose health insurance paid $1 million of her husband’s medical bills after his employer’s insurer refused, has incurred $12,000 in attorney and professional witness fees trying to pursue recovery from the commission.

She says she has dropped her legal bid, not wanting it to impede her ongoing effort to change Virginia law affecting severely injured employees. The driving force behind an unsuccessful bill that would have accomplished that in 2009, Claire Pierce is now working with a state senator to try again next year, and with Congressman Joe Baca, D-Calif., on a federal bill.

But the legislative offensive comes too late for Arthur Pierce. He died in a nursing home in January 2008 at age 65.

Blair S. Walker is a writer in Miami.