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)
