Safety and OSHA News

Worker can’t remember fall: Will he get comp for serious head injury?

A co-worker found this employee bleeding from the head and incoherent. The injured employee can’t remember how he got the head wound. Will workers’ comp pay for the injury? 

James Rush worked at the University of Virginia Hospital as a patient care technician.

On July 23, 2011, a housekeeper noticed Rush was wandering around with a dazed look and blood on his face.

Workers later found him in a restroom with a “golf ball-sized knot on his head right above his eye.” His head was swollen and he wasn’t able to stand. Rush was conscious but confused.

No one knows exactly what happened. Hospital staff found blood on a computer desk in an operating room along with some vomit and Rush’s badge on the floor. A chair in the room was overturned.

Rush didn’t remember what happened. Several doctors concluded that he suffered a seizure and fell.

He sustained a brain injury and required complex surgery and extensive follow-up care.

Rush filed a workers’ comp claim for temporary total disability and medical benefits. A Virginia workers’ comp commissioner denied the claim on the grounds he hadn’t met his burden of proving a work-related cause of his injuries.

The commissioner also rejected Rush’s argument that a section of Virginia’s workers’ comp law applied to his case. The section states:

“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 was work related, it shall be presumed, in the absense of a preponderance of the evidence to the contrary, that the injury was work related.”

The commissioner found that, although Rush didn’t remember how he was injured, he was physically and mentally able to testify.

The workers’ comp commission affirmed the commissioner’s decision. Next, Rush appealed to a Virginia court.

Is he trying to rewrite the law?

In cases involving unexplained falls in the workplace, Virginia uses the “actual risk test.” Under this test:

“If the injury can be seen to have followed as a natural incident of the work and … as a result of the exposure occasioned by the nature of employment, then it arises out of the employment.”

However, the test excludes injuries which can’t be traced to employment and which come from hazards the worker would have been equally exposed to away from work.

Since Rush couldn’t remember what happened when he was injured, the actual risk test would prevent him from receiving comp benefits. That’s why he was relying on the part of Virginia’s comp law which allows a presumption that an injury is work-related if the employee can’t physically or mentally testify.

The appeals court found Rush was able to testify. The injured employee was asking the court to interpret the law to read that a worker must be unable to testify about the occurrence of the accident. In other words, a case of temporary amnesia would allow Rush to collect benefits.

But the court found “this additional language is not found in the statute.”

Rush made one last attempt to sway the court. He noted that the state’s workers’ compensation law is to be “liberally construed to carry out its humane and beneficial purposes.”

The court noted that, while this is true, “rules of liberal construction cannot properly be applied to rewrite a statute in order to alter what it actually says.”

The court affirmed the commission’s decision. Rush would not receive workers’ comp for his injuries.

As we’ve written about in previous cases, it’s not always enough for an injury to simply occur at work for an employee to collect comp benefits.

What do you think about the court’s decision? Let us know in the comments below.

(Rush v. University of Virginia Health System, Virginia Court of Appeals, No. 1886-14-3, 3/31/15)

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  1. miltonmojo says:

    Normally I rail against the courts for their (typically) over-liberal interpretations regarding what WC benefits an employee is entitled to. And of course I’m not thrilled with the specifics of this case, wherein the actual cause of the injury appears to be some kind of personal medical condition that happened at work and then resulted in his striking his head (because apparently gravity is something the employer should be held accountable for). But in this case I find the rigidly literal interpretation of the one aspect of the statute’s wording to be total BS.
    From the facts at hand it’s quite obvious what happened and where, and to deny benefits simply because the worker only has amnesia instead of being in a coma (i.e., he was hurt too badly to remember, but not badly enough for the obvious presumption to kick in) is incongruous with how the courts seem to want to interpret virtually every other aspect of the WC statutes. I might hate awards for things that arise simply out of personal medical conditions and the laws of physics, but that’s a problem with how broad the WC coverage rules are (and I’m all for changing those). So as long as those are the coverage rules it seems obvious that this guy should be entitled to his claim based on his circumstances.

  2. Interesting. This goes along with my comments a month ago on the article where the employee fell asleep behind the wheel and was seriously injured. In that state, the courts ruled that the injury arose out of his employment based on the idea that if he hadn’t been employed there, he would not have been operating a company truck. Now, if you used the same broad interpretation and circular logic on this case, then if the person hadn’t been employed there then they wouldn’t have been wandering the halls of the facility with a head injury and in a daze, no matter what caused the injury. In that case you’re using a geographic presumption that the injury was worked related because it happened in a work environment, in this case geography is not a factor.

    • Bob12345 says:

      Positional risk vs. actual risk tests. State by state, VA has a much stricter interpretation.

  3. goddess1012 says:

    There is not enough information to come to a logical, informed decision. Did they drug test the individual? Alcohol? Prescription medications? Heck, it doesn’t even say what type of employment this was. There is simply not enough information in this article to base an argument for or against WC.

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