by dan.casey@roanoke.com
Two of the Roanoke Valley's state lawmakers are intent on closing a loophole in Virginia's workers' compensation law that has left some brain-injured workers without coverage and saddled with debt.
That won't help Mike and Andrea Gentry, the north Roanoke County couple whose story I brought you in September. But they'll be in Richmond for the bill's debut, and cheering it along all the way.
Del. Onzlee Ware and Sen. John Edwards, both D-Roanoke, said what happened to the Gentrys shouldn't happen to Virginia workers who suffer on-the-job accidents that cause brain injuries.
Mike Gentry, 36, was installing a satellite dish for DirecTV when he fell off a roof and landed on his head in Southeast Roanoke on Feb. 7, 2009.
He spent six days in a coma and weeks undergoing rehabilitation at Carilion Clinic. His permanent injuries include bad vision, slurred speech and seizures. The sights and sounds of daily life often overwhelm him, and it's doubtful he'll ever be able to work again.
But Zurich North America, his employer's workers' compensation insurance carrier, denied Gentry's claim because nobody witnessed the accident and initially, Gentry couldn't recall how it had happened.
The way Virginia law is worded, "if you suffer a brain injury on the job and nobody saw it and you can't recall it, you can't get worker's compensation," Ware said. "That's not fair."
The insurance company's immoral but legal action left the Gentrys screwed. They're a blue-collar, middle-class family of five who lived paycheck to paycheck.
After the accident, they had almost no income for more than a year. As uncovered medical bills mounted, a bank repossessed their car.
They would have lost their house, too, except that St. Mark's Lutheran Church in Roanoke raised enough money to cover their mortgage payments. Friends, neighbors and total strangers helped out with food and other expenses.
Gentry finally was able to remember the accident five months later. But the insurance company spent more months denying his claim and delaying a hearing before the state Workers' Compensation Commission.
In April, his lawyer, Matt Broughton, forced Zurich North America to settle for what the company should have been paying Gentry from the beginning. But the 14-month delay nearly cost Gentry everything he had worked for.
The Virginia AFL-CIO has made Ware's and Edward's legislation one of its priorities in the upcoming General Assembly session, said Doris Crouse-Mays, the Virginia AFL-CIO president.
It would alter and close the section of the state Workers' Compensation Act that has become known as the "brain-injury loophole."
Edwards called it, "a matter of basic justice." The Gentrys, he added, "should have been covered right away."
But the General Assembly has killed similar legislation in the past. The last time was in 2009, just 12 days before Mike Gentry's accident.
The chief lobbyist against it then was Charles Midkiff, who was later the attorney who represented Zurich North America in the company's efforts to deny Mike Gentry workers' compensation. He did not return a call for comment Wednesday.
In arguing against the 2009 bill to The Washington Post, Midkiff called it "an invitation to fraud" and a wholesale shift in the law.
That's the kind of hackneyed reasoning hired lobbyists use when they lack legitimate rebuttals to legislation their clients oppose.
Moreover, it's belied by Workers' Compensation Commission statistics cited in testimony before the committee that killed the bill in 2009.
Those indicate brain injury cases account for less than 1 percent of claims filed before the commission.
Unwitnessed or unrecalled brain injury cases are an even tinier fraction of those.
The General Assembly bought Midkiff's spurious arguments the last time around.
We shall see if our lawmakers do the right thing this year.
Dan Casey's column runs Tuesday, Thursday and Sunday.
Please contact us if you have questions or need legal assistance.
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