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Death case settled with big motion pending

Lawyers facing a court ruling on a novel point of law – with appeals certain to follow – managed to re­solve a wrongful death claim with a $700,000 settlement last month.

The issue was whether a participant in a sheltered employ­ment program was bound by workers’ compensation rules after he died from a workplace seizure. If workers’ compen­sation law applied, the non-profit agency would be protected from any tort claim for the man’s death.

The settlement was reported by Har­risonburg attorney Mark D. Obenshain this month.

Sheltered workshop participant

Obenshain and Justin M. Wolcott rep­resented James Louque, a 42-year-old disabled man who worked in a sheltered job program at NW Works Inc. in Win­chester. The organization was founded to provide vocational training and employ­ment opportunities for adults with dis­abilities, according to its website. It was a tax exempt § 501(c) organization.

The organization knew that Louque had a history of seizures, and it had in­ternal protocols requiring staff to call 911 for a seizure lasting longer than five min­utes, Obenshain said.

Louque suffered a “severe, continuous and convulsive seizure” at the workshop in March of last year, according to Oben­shain’s report. All parties agreed the sei­zure lasted more than 15 minutes before the staff called for help.

The two sides disputed how much lon­ger the seizure lasted. The agency con­tended its staff called 911 after 17 min­utes. Other evidence indicated the staff waited as long as 25 minutes before call­ing, Obenshain said.

By the time emergency medical person­nel arrived, evidence showed that Louque had been seizing for more than 30 min­utes, Obenshain said.

The emergency crew was able to suc­cessfully stop the seizure, but Louque promptly went into cardiac arrest. By the time he was admitted to the hospital, there was no brain activity. He died three days later when life support was discon­tinued, Obenshain said.

Medical bills totaled $41,000, accord­ing to the settlement report.

Workers’ Compensation Act

Louque’s parents filed a wrongful death action asserting that the non-prof­it was guilty of gross negligence and also liable for negligent hiring and retention. The defense filed pleas in bar asserting the exclusive remedy provision of the Workers’ Compensation Act and charita­ble immunity.

If the Workers’ Compensation Act applied, the family would recover only nominal benefits for burial expenses and transportation costs. Tort claims for wrongful death would be barred.

The facts in the workers’ comp defense fit no known case law, Obenshain said.

The agency contended Louque was an employee, covered by the comp law.

Louque had received paychecks and a W-2 annually from the program, but his participation was conditioned upon financial support from Medicaid waivers that provided sub­stantially more funding than his pay, Obenshain said.

His family contended Louque was not an “employee” under the comp law. He was a client receiving services, not an employee providing services, they maintained.

With a hearing pending before Winchester Circuit Judge Clifford L. Athey Jr., the two sides met in media­tion with retired Judge John J. McGrath Jr. The parents’ demand was $1 million, but the agency made no offer before mediation, Obenshain said.

“For both sides, the outcome of that hearing would have held enormous potential consequences, and the ab­solute certainty of appeal,” Obenshain said.

A potential workers’ comp bar for a sheltered work­shop participant was “an incredibly novel issue” that had not been litigated before in any court, he said.

Settlement was reached July 8, five days before the scheduled hearing.

As a part of the resolution, the agency delivered to Louque’s parents a letter acknowledging responsibility for the events that led to the death and articulating new policy changes and safety precautions to prevent a re­currence, Obenshain said.

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