Virginia Lawyers Weekly VA Lawyers Weekly
The claimant, an employee of A, a contractor, fell from a height. Discovery, motions, a change in venue, and joinder and dismissal of various parties occasioned by added defenses delayed a hearing. In the course of the litigation Nationwide, insurer of A on the date of the accident, asserted defenses including denying coverage to A (which it withdrew prior to hearing), safety rule violation (which it also withdrew), no injury by accident, i.e. the cause was unknown, the claimant was an independent contractor, and he was the borrowed servant of employer B, a subcontractor of A working on site. In denying coverage Nationwide served a “reservation of rights” letter on and hired separate counsel for A notwithstanding the Workers’ Compensation Act provides that no default of an insured employer affects an insurer’s obligation to the claimant.
Following a hearing conducted entirely in Spanish and Korean, the languages of the witnesses and parties, the Deputy Commissioner held Nationwide and A liable, and the Commission affirmed on review. The case settled at mediation while on appeal before the Court of Appeals some 21 months after the accident, during which time the claimant had no medical care following hospital discharge. BIAA, insurer of alleged employer B, did not participate in the mediation or contribute to the settlement.
The claimant’s status as an immigrant complicated many aspects of the claim.
[16-T-027]
Type of action: Workers’ Compensation
Injuries alleged: T12 burst fracture and subluxation; T10 ASIA A paraplegia; other fractures, T12 burst fracture; paraplegia; other fractures
Name of case: Confidential
Court: Virginia Workers’ Compensation Commission
Case no.: Confidential
Name of mediator: William Dudley, former Commissioner
Date resolved: Dec. 11, 2015
Special damages: $611,590.60 past medical bills; compensation at weekly rate of $422.55; future medical care for life
Verdict or settlement: Settlement
Amount: $1,500,000.00
Attorney for plaintiff: Louis D. Snesil, Richmond
Plaintiff’s experts: Dr. Charles Bonner, Richmond
Insurance carrier: Nationwide Mutual Insurance Company
