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. 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.

And they say his brain is impaired?

A 2011 law sponsored by Representative Onzlee Ware and Senator John Edwards 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 Herman Blair 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 benefits. At a workers' compensation hearing, it was the fact that he knew his name and his age that did him in. Workers’ Compensation Deputy Commissioner Philip Burchett 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.

Now, as I often say, I am merely an intellectually challenged, simple boy from Durango, and I need to recap to make sure I understand this:

In Virginia, if you have an accident on the job resulting in a severe brain injury, you best be in a coma or dead, or the state will rule that it was not a compensable incident. You will be SOL. The fact that you can sit in a chair, utter your name and perhaps drool on yourself* is enough to convince these bureaucratic wizards that you are “good to go”.

According to the source article that landed on my cluttered desk, Burchett made this decision because of the absence of case law “he could use to figure out the legislature’s intent when they enacted it.”

Really? You need case law to figure this out? 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?

Wow. Appalling. Frankly, I wonder how some of these people sleep at night.

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


* Editors Note: Bob’s reference to “drooling” is in no way intended to be critical of the disabled, but instead is intended to highlight what he believes to be a ridiculous situation. Those of you on LinkedIn who routinely admonish him just relax.

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