Lawmaking can be a foul-smelling and ugly process to behold.
Some very generous souls have compared it to making sausage. That’s only partly true. It’s like making sausage in a sewage treatment plant, from the most fragrant sludge on hand.
But once in a while, an accident or a miracle occurs and lawmakers accomplish something that helps regular people.
It appears that may be happening now, with efforts to close a loophole in the state workers’ compensation law.
I told you about that loophole in September in the story of Mike Gentry, a Roanoke County satellite dish installer who fell from a roof during a job.
The brain injury Gentry suffered left him unable to recall his accident. And that was how his employer’s insurance carrier, Zurich North America, justified its denial of Gentry’s workers’ compensation claim.
Virginia’s current law says a worker has to prove he was hurt while working, unless he dies on the job.
If nobody witnessed an accident and the worker can’t remember what happened, he can’t meet that burden of proof. So the insurance company can legally deny coverage.
Gentry finally won his case because he later remembered the fall. But he had to hire a lawyer, and there was a 14-month delay between his accident and when he finally won the case. By then, his family was all but bankrupt.
Del. Onzlee Ware and Sen. John Edwards, both D-Roanoke, are sponsoring legislation intended to fix that. Although the insurance industry easily shot down a similar bill two years ago, this time the chances for passage look good.
Last week, Ware’s bill passed the House of Delegates unanimously. On Monday, Edwards’ bill will get a hearing before the Senate Commerce and Labor Committee. That panel killed it in 2009.
Mike and Andrea Gentry will be in Richmond on Monday, and they’re excited about testifying in support of the bill.
The key difference this year is that the insurance industry isn’t fighting the legislation like it did two years ago.
Ware says that’s because he forced trial lawyers, insurance lobbyists and workers to sit down together and figure out how to write a law that satisfies all their interests.
The new version is what passed the House last week. Edwards will change his bill to make it identical to Ware’s.
The rewrite removed any reference to “brain injury.”
Instead, it says that if the worker is “physically or mentally unable to testify, as confirmed by competent medical evidence” and it’s obvious an accident happened on the job, the worker will be covered.
Both Ware and Doris Crouse-Mays , the president of the Virginia AFL-CIO , say the new version protects workers with brain injuries as well as the insurance industry, which is concerned about fraud.
It will certainly take care of concerns cited two years ago by Claire Pierce, a Virginia widow who started the ball rolling on this effort.
Her husband, Arthur Pierce, suffered a severe brain injury after he fell off a truck at work and was never was able to speak during his final months afterward. Zurich North America successfully denied his claim.
Whether the new law would have helped Gentry is a little fuzzier in my mind. He can talk, and after the accident, he was able to testify. He just couldn’t recall what had happened.
“If you can’t remember because of a brain injury, you’re unable to testify what happened,” Crouse-Mays said. “That’s the protection in the case of Mike [Gentry].”
Perhaps she’s right about that, but there still seems to be wiggle room for insurers to get out of paying.
Truth is, even if the bill passes, we won’t know if the stink is off this issue until the next time a brain-injured worker’s case is ruled upon by the state Workers’ Compensation Commission.
Then we’ll be able to tell if the new law was an accident or a miracle.
Or will it be neither?