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The presumption of compensability found in Va. Code Ann. § 65.2–105 applies only when an injured worker is physically or mentally unable to testify; it does not apply, held a Virginia court, when the claimant cannot recall the circumstances of his injuries because he suffered from amnesia due to a head injury. Accordingly, without the presumption, the claimant could not establish that his injuries arose out of and in the course of the employment. The claimant, a university hospital patient care technician, was seen wandering around at the hospital with blood on his face. He had a “golf ball-sized knot on his head right above his eye” and he was unable to stand. Hospital staff found blood smeared on one of the computer desks in an operating room, as well as vomit and a small amount of blood on the floor. They also found the claimant’s badge on the floor. The technician could not, however, remember what happened to cause his injuries. Clamant argued that the statute could be interpreted to mean that the claimant must be unable to testify about the occurrence of the accident, regardless whether he could physically testify at a hearing. The court disagreed; inability to recall the circumstances of the injury was not the sort of “unavailability” contemplated by the statute. Earlier this year, in Estate of Arroyo v. Ramirez, 2015 Va. App. LEXIS 30 (Feb. 3, 2015), the Virginia court held that the General Assembly did not intend for the statute’s presumption to apply in situations where a claimant was unable to testify because he was deceased.
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 Advance. Bracketed citations link to lexis.com.
See Rush v. University of Va. Health System, 2015 Va. App. LEXIS 96 (Mar. 31, 2015) [2015 Va. App. LEXIS 96 (Mar. 31, 2015)]
See generally Larson’s Workers’ Compensation Law, § 7.04 [7.04]
Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.
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