Virginia: Court Affirms Denial of Unwitnessed Death Claim

Continuing its stance within the minority of states that refuse to provide a presumption of compensability in cases in which a worker suffers fatal injuries in an unwitnessed accident, a Virginia court has affirmed the denial of death benefits to the estate of a worker who died from injuries caused by a fall from an unguarded elevator shaft where he and others had been working. Stating that Virginia adheres to the actual risk test to determine whether a causal connection existed between the workplace and the injury, the court indicated that without credible evidence demonstrating the cause of the worker’s fall, his estate could not establish the necessary causal relationship. Ironically, Va. Code Ann. § 65.2–105 provides a presumption of compensability “where the employee is physically or mentally unable to testify ….” The court stated, however, that the “plain, obvious, and rational meaning of Code § 65.2–105 as expressed by the language of the statute indicates that the General Assembly did not intend for the statute’s presumption to apply in situations where, as here, a claimant is unable to testify because he is deceased.” [emphasis by the Court] The court said the statute’s language indicated that the General Assembly intended for the presumption to apply when a claimant is still alive at the time of the hearing, but for some physical or mental reason is unable to testify.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is a leading commentator and expert on the law of workers’ compensation.

LexisNexis Online Subscribers: Citations below link to Lexis

See Estate of Arroyo v. Ramirez, 2015 Va. App. LEXIS 30 (Feb. 3, 2015) 

See generally Larson’s Workers’ Compensation Law, § 7.04 

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.

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