The Applicability of the Virginia Death Presumption to Workers who were Found Dying

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Virginia, like many other states, has a workers’ compensation statute. Generally, in order to recover for an injury, claimants must prove that their injuries were caused “by accident arising out of and in the course of employment….” In other words, a critical link must exist between the conditions of the workplace and the cause of the injury in order for the injury to be compensable. In some cases, the cause of injury is unknown because a worker is dead and there is no other evidence to show what caused the death. In such cases, many courts presume the elements of compensability were met. The “death presumption” is justified because it is too unfair to require the claimant to prove the elements of compensability when the only witness to the accident is dead. The New Mexico courts have expanded the presumption to cases where workers were discovered alive but incapable of communicating what caused the injury. Those courts logically concluded that it is just as unfair to require proof from the claimant when the witness is incapable of communication as when a witness is dead. However, the Virginia Supreme Court declined to follow suit and did not expand the presumption in a case involving a brain-damaged worker who could not remember what caused the injury. Instead, the Court reiterated the requirement that the worker must be found dead for the presumption to apply. The Court reasoned that historically the presumption only applied in non-death cases and that expanding it beyond non-death cases was a major expansion that must be left to the legislature. This article will argue that the presumption should apply to employees who are either found incapable of independent life or found dying and die shortly afterwards. First, the Virginia death presumption has covered the employees who were “found dying” from the time it was established. Second, such application of the presumption is supported by logic and not against the Virginia precedent. Third, such application of the presumption is further justified by advances in the emergency medical services (EMS) that blur the line between dead and alive.