Virginia Legislature Instructs Appellate Court: Deceased Employees Really Are “Physically Unable to Testify”

On March 11, 2016, Virginia governor McAuliffe signed into law a bill extending the state’s narrow presumption of compensability [Va. Code Ann. § 65.2–105] to cover most claims where the employee dies in an unwitnessed work-related accident. Prior to the amendment, Virginia provided such a presumption in unwitnessed accident cases [for a complete discussion of the issue, see Larson’s Workers’ Compensation Law, § 7.04] where the injured worker was “physically unable to testify.” One would have thought that an employee killed in an unexplained workplace accident would be “physically unable to testify,” but last year the state’s Court of Appeals, in an opinion not designated for publication [Estate of Arroyo v. Ramirez, 2015 Va. App. LEXIS 30 (Feb. 3, 2015)], essentially said otherwise. The 2016 statutory amendment makes it clear to the Court: if a Virginia employee dies in a work-related accident, he or she is physically unable to testify.

Note, however, that Virginia’s rule regarding the presumption of compensability in unwitnessed accidents still has one quirk: if the employee suffers amnesia because of a head injury in an unwitnessed accident, the employee is not favored with the Va. Code Ann. § 65.2–105 presumption of compensability. He or she is still “physically able to testify,” held the same Court of Appeals last year in Rush v. University of Va. Health Sys., 64 Va. App. 550, 769 S.E.2d 717 (2015). That they have nothing to say on the stand is irrelevant, indicated the Court.

So, if you can’t testify because you were hit on the head and rendered unconscious, you enjoy the presumption.  If you can’t testify because you were hit on the head and have amnesia, you don’t.  The Virginia court seems to be saying in a rather perverse way that, in some ways at least, it’s better to be in the coma.

Since the Virginia legislature amended the statute only with regard to employees killed in unwitnessed accidents, the decision in Rush appears to stand.