Wednesday, April 25, 2012

Shame On Erie

One of the troubles with workers' compensation is that it is purely a product of legislative grant. What the legislature giveth, the legislature taketh away, including reason and rational thought.

What seems like a good idea may produce unjust or terrible consequences given certain fact patterns - facts that can't be anticipated in advance or may be deemed too remote to have any probability of occurrence.

In law school we're taught early on that, in any given debate, first argue the law. If that fails then argue the facts.

This is essentially where the "law of equity" arose. Equity came from British common law, where judges were granted leeway in the application of strict written law (i.e. statutes) in order to do the right thing.

Equity doesn't have much place in workers' compensation because of the statutory origin of the law. Courts are loath to wander into equitable territory least an opinion open the proverbial can of worms creating chaos out of legislative intent.

Sometimes, though, a case comes around that seems to beg for some equitable resolution even against ardent, strict statutory rule.

In Virginia a law was amended and re-enacted by the General Assembly in 2011 that granted a presumption where the injured worker was unable to testify.

Section 65.2-105 of the Code of Virginia 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 that the injury arose out of and was in the course of employment, it shall be presumed, in the absence of a preponderance of evidence to the contrary, that the injury arose out of and was in the course of employment. 

This actually seems like it would be a good law - a presumption in favor of the injured worker that would seem to reduce the burden of an unfortunate circumstance that produces an inability to provide first hand testimony.

But when an injured worker can testify, but can't testify ABOUT the accident, and there is no other evidence of causation, this seemingly liberal presumption actually inhibits the provision of benefits. At least that is what a Virginia deputy commissioner ruled.

Herman Blair, owner (and employee) of a roofing company in Virginia, fell from a ladder while installing a roof in Jonesville, Va., on Sept. 8, 2011, and suffered multiple skull fractures which required an emergency craniotomy - the injuries were so severe that Blair was unable to give consent to the surgery so his daughter had to provide that consent.

Blair sought workers' compensation benefits. One would think that this would be a "no brainer" since a) there doesn't appear to be dispute that Blair fell from a ladder working on a roof, and b) Blair was the company owner.

But the insurance carrier for Blair Construction, Erie Indemnity Co., denied compensability because Blair's fall was unexplained and thus there lacked evidence that Blair's injuries arose out of employment.

Erie further argued Blair was not entitled to the presumption because he was able to appear at a workers' compensation hearing and supply his name, age and occupation, but was unable to testify about the circumstances of the accident because he has no memory of it.

Deputy Commissioner Philip Burchett ruled on March 12 that, despite testimony from a co-worker that he heard a noise and saw Blair falling, the roofer's ability to appear and testify nullified the presumption. Burchett found that Blair was injured in the course of employment but that there was no evidence, since the presumption did not apply, that Blair's injuries arose out of employment.

In my mind, I don't even understand why this is in dispute. This is the kind of injury that workers' compensation was intended from the very beginning of its origins to protect workers against, even if the worker owns the company.

How did this case even get to the courts? If a representative of Erie would be kind enough to comment on this blog it would be appreciated so I, and everyone else, can understand the position of Erie. Perhaps there is good reason for this claim to be disputed, but under the facts known by me thus far, this is just the sort of stereotypical picture of a greedy insurance company ruining some man's life that has already taken a bad hit.

This is the sort of case that is the insurance industry's worst public relations story. This is why insurance companies are held is such low esteem by the general population. I don't understand how they can argue with a straight face that Blair's injuries did not arise out of employment. He was working at one moment and the next moment he has significant head injury, and his employee saw him fall.

Really Erie? Are you kidding me?

I understand there was an attempt to settle before the hearing - perhaps Blair's demands were excessive... we don't know what the demands were, or what the offers were. In this case it seems to me that the true dispute should be about the quantity of benefits, not the provision of benefits.

Blair's case has prompted some discussion in Virginia with a legislator seeking a "technical" amendment to the 2011 law, and Blair's attorney waiting for the Virginia Workers' Compensation Commission to be fully staffed (the Commission is comprised of three commissioners, but currently is staffed only by two) before seeking reconsideration of the ruling.

This is a ruling that shouldn't be on appeal, let alone in front of a commissioner. This is a case that screams for equitable consideration.

And shame on Erie for even going down this path.

The full story on this case is in today's WorkCompCentral.


  1. Sir,
    I can offer some slight insight into this case; Herman Blair is my uncle, and the insulting offer of a "settlement" by Erie wouldn't pay even one quarter of the medical bills Herman had incurred at the time of the offer. This company's behavior with regards to my uncle has been beyond contemptible, and the Deputy Commissioner has disgracefully allowed this to continue. It is my hope that Virginia legislators and others will right this wrong as soon as possible. Anyone who knows anything about brain injuries can tell you that Herman may never remember the exact circumstances of his fall, but to assert that his claim be denied only because he was present and could recite basic facts about his life is assinine at best. Thank you for your kind attention and remarks regarding Herman and his situation. All support is appreciated.

    Sincerely, Tina Suggs

  2. Tina - thank you for providing more information on this tragic case. I hope that the court rights this terrible tragedy.