The Roanoke Times, Va., Dan Casey column [The Roanoke Times, Va.]

Sept. 19--If you believe any injury you might suffer at work will be covered by workers' compensation insurance, you should hear Mike and Andrea Gentry's story.

The Roanoke County parents of three have been through hell for the past 21 months, after Mike fell from a roof while installing a satellite dish.

He suffered a head injury that put him in a coma for almost a week. He came out of it with brain damage, double vision, slurred speech, frequent seizures and other cognitive and neurological problems.

He's unlikely to work or drive a car ever again.

And after he got home, after weeks in the hospital and rehab, came another blow: His employer's workers' compensation insurance carrier denied his claim.

Zurich North America canceled coverage for medical treatment.

The company also canceled Gentry's workers' comp income, leaving his family financially destitute, their credit ruined, and in danger of losing their home in the North Lakes subdivision.

Zurich North America's action was entirely legal under this quirk in Virginia's workers' compensation law: If you can't recall the circumstances of your injury, and there are no witnesses to it, you are likely ineligible for workers' compensation.

"If you're found dead at work, you would be covered," said Burman Snider, Andrea Gentry's father. "If you live, but you can't remember what happened, you're screwed. It sounds absurd, I know."

But the Gentrys didn't give up. Nor did their extended family, their neighbors, a church they didn't even attend, or total strangers who supported them for more than a year.

Nor did their lawyer, who ultimately helped them win a measure of justice.

"The system has failed us, but our family has protected us," Andrea Gentry said. "The community, the churches, the neighbors, the friends -- we couldn't have survived without them."

Mike Gentry, 36, and Andrea Gentry, 34, are lifelong Roanokers. They were a prototypical hardworking blue-collar couple until Feb. 7, 2009.

That's the day Mike's company, DirectSat USA, sent him to a home on Seventh Street in Southeast Roanoke to install a satellite-TV dish.

Mike had worked most of his career for a local moving company but had taken a new job three months earlier. The Gentry family had been without health insurance for many years, but this job offered benefits.

It required Mike to visit homes, usually alone but when the customer was home, and install satellite dishes for DirecTV.

On Feb. 7, Mike was working on the roof of a customer's house, nearly done with the job, when he realized he needed something from his work van to finish.

As Mike climbed down the ladder, it slipped. He fell onto a narrow concrete walkway, landing on the left side of his head. "The customer heard the ladder slide," Andrea said, sitting in their living room one evening this summer. "He came out of the house; he saw Mike's hard helmet on the sidewalk. He saw Mike lying there -- he was having a seizure. He called 911."

An ambulance took him to Carilion Roanoke Memorial Hospital, where he was admitted to the neuro-trauma intensive care unit.

A hospital worker called Andrea at home.

"Your husband has been brought in," she recalled the hospital worker saying. "He's unresponsive."

When Andrea got there, Mike was in bad shape. The doctors and nurses told her that he'd suffered a brain injury, and that blood was collecting around his brain.

Mike was in a neck collar, bleeding from his ears, nose and mouth. His left eye was badly swollen. He was on a ventilator and in a coma.

"There was a 90 percent chance he wouldn't wake up," recalled Snider, a machinist at a tool and die shop in Salem.

For days, the extended family kept a vigil in the hospital's trauma unit. Andrea slept there.

Other worried family members came and went, doing their best to comfort one another, and taking turns caring for the couple's three children.

On Feb. 11, the Gentrys celebrated their son Peyton's eighth birthday in the ICU waiting room.

And then on Feb. 12, Mike woke up.

"They were turning him," said Andrea, who was outside Mike's room when it happened. "He grabbed ahold of the ventilator tube and yanked it out. Within five minutes of that, I was in the room. He was sitting up awake.

"He looked at me and said, 'I love you. I missed you.' He started asking the doctors for food, and the doctors couldn't believe it.

"It was THE best moment of my life. It was better than a hundred Christmases."

The Gentry family's travails were just beginning.

Even before he'd regained consciousness, the doctors had diagnosed Mike with a fractured hip, internal bleeding, a broken nose and other facial bones -- and, of course, the head trauma.

After he emerged from the coma, they realized one of his hands was broken. He had a torn rotator cuff. He had double vision and was partially paralyzed on the left side of his face.

Mike couldn't walk, bathe himself or even get to the toilet on his own.

Also obvious was short-term memory loss. He couldn't recall the accident.

Mike was just beginning a long recovery, and the hospital bills were mounting.

A caseworker for Zurich North America, DirectSat's workers' compensation insurance provider, showed up at the hospital the day after Mike's accident.

"They came in, talked to me, said it was completely covered and they were going to take care of everything," Andrea recalled. "I was never worried."

Mike stayed in Roanoke Memorial for 11 days. He stayed in Carilion Clinic's rehabilitation center 15 more days.

And finally, on March 6, 2009, Mike was home.

Mike still had many outpatient rehabilitation appointments to go to. He still couldn't remember the accident, nor could he see straight. His speech was slurred (and it still is).

Even home life often left him feeling overwhelmed and emotionally fragile. The damage to his brain dramatically slowed his ability to process information.

Two days after Mike got home, he got a call from a Zurich North America claims adjuster. She explained she needed a recorded statement, something that's standard in workers' compensation cases.

"She asked me, 'Ever jumped off a roof before?' " Mike said. "Ever thought of killing yourself?"

"I said, 'No, and no.' "

And then she said, "Do you remember what happened?"

"And he said no," Andrea interjected. "Because he didn't. And she said, 'OK, that's all I need.' "

A few days later, Andrea got a phone call from an official with DirectSat, a Pennsylvania-based company with 1,800 employees.

"She said, 'I sent you a letter, but I'm calling because I don't want you to freak out,' " Andrea said. " 'We've been told that Zurich is denying Mike's claim, but we're fighting it. I'm hoping we'll resolve it.' "

Liz Downey, chief administrative officer of UniTek Global Services, DirectSat's parent company, said Zurich's decision upset her.

"We believed it was a compensable claim from the beginning," Downey said. "We thought it was a tragedy. We were working with the family to see that they got everything they deserved."

But Zurich, Downey added, "came back and said there was a loophole in the Virginia law and they were denying the claim."

(DirectSat has since changed its workers' compensation insurance provider, Downey said.)

The Gentrys got the letter from Zurich about a week later. You can hear the bitterness in Andrea's voice as she remembered it: "It said -- it didn't give a reason, really. It just said we're denying the claim."

That meant Zurich was cutting off future medical care for Mike, and his workers' compensation pay, too, which amounted to about two-thirds of his salary.

He'd been drawing that for about six weeks.

Glitch in Virginia law

Zurich North America will not answer questions about Mike Gentry's case. Steve McKay, the company's media and public relations director, said in a one-line e-mail: "Zurich can not comment on active claims."

There's a history of Virginia workers with head injuries being denied workers' compensation because they couldn't recall how their accidents occurred.

One publicized case involved Arthur Pierce, a retired IBM engineer. At age 64, Pierce took a temporary job as a dump truck driver.

One morning in September 2006, Pierce fell off the top of his truck. He was later found unconscious, on company property, in a pool of his own blood.

Nobody saw the accident. Although Pierce regained consciousness less than a week later, he suffered brain damage so severe that he couldn't walk, talk, feed himself or communicate, said his widow, Claire Pierce. He died 16 months later.

Claire Pierce, a paralegal who lives in Stafford, filed a workers' compensation claim with the trucking company's insurance carrier, Zurich North America.

After it was denied, she twice took the case to the Virginia Workers' Compensation Commission, a state agency that acts as the legal referee for disputes between injured workers and their employers.

Virginia's 91-year-old workers' compensation law presumes a worker who dies on the job is eligible for lost wages and medical expenses related to the injury.

But injured workers who do not die, or who do not die immediately, don't automatically qualify. They must prove the accident happened in the course of employment.

Because Arthur Pierce didn't die immediately, the presumption that he was hurt at work didn't apply.

And because there were no witnesses, and because Pierce never was able to explain how the accident occurred, he lost his case.

Jon Coppelman, who has provided workers' compensation consulting to companies from his Boston office for 20 years, and who writes the Workers' Comp Insider blog, called it a "peculiar glitch in Virginia law." Coppelman said he's unaware of any other state that has such an unusual standard.

"You don't need to be Sherlock Holmes to figure out that Virginia law creates an insurmountable standard" in certain head injury cases, Coppelman said. "It literally tramples on the rights of Virginia workers."

One of the horrible ironies of Mike Gentry's case is that some Virginia lawmakers were attempting to close the head injury loophole right before he fell off that roof.

Senate Bill 821 was sponsored in the 2009 Virginia General Assembly by state Sen. Richard Stuart, R-Westmoreland County, Claire Pierce's state senator.

It would have changed the law so that workers with a brain injury who couldn't recall a work accident would be granted the same presumption as workers killed on the job.

"It was too late for my husband," Pierce said. "I was trying to do something for others, so they didn't suffer the same fate."

The bill was assigned to the Senate Commerce and Labor Committee. State Sen. John Edwards, D-Roanoke, sits on that committee.

"I voted for it," Edwards told me. He called the current law "grossly unfair."

Workers' compensation insurance companies fought the measure, according to an account in The Washington Post.

Charles Midkiff, a workers' compensation insurance attorney whose clients include Zurich North America and who also is an industry lobbyist, told the newspaper the legislation was "an invitation to fraud." Pierce's case was isolated and didn't merit a wholesale shift in the law, Midkiff argued to the newspaper.

Midkiff did not return repeated phone calls from The Roanoke Times.

The Commerce and Labor Committee killed the bill 11-4.

"I'll tell you, the insurance lobby is pretty strong down in Richmond," Edwards said.

Mike Gentry fell off the ladder 12 days later.

At this point, the Gentrys had few options.

Several lawyers consulted by the family offered no hope. Meanwhile, the family had no income to pay their bills.

Though Mike had been released from Roanoke Memorial, he was anything but well.

Doctors told the Gentrys that Mike suffered from "diffuse axonal injury." Andrea Gentry likened it to an adult version of shaken-baby syndrome.

In the coming months, Mike would require treatment by many medical professionals: psychologist Bill Wellborn of Roanoke; brain injury specialist Nathan Zasler of Richmond; ophthalmologists at the University of Virginia; and physical and vocation rehabilitation specialists. He's still seeing them, too.

Meanwhile, the Gentrys had mortgage payments on their house; a loan on a minivan; three children to clothe, support and feed; and utility and credit card bills.

And no savings.

Andrea's mother and stepfather, Debbie and Robert Akers, cashed in part of their 401(k) plans to help cover the family's expenses.

Neighbors chipped in groceries and meals.

The area office for DirectSat held a pool tournament fundraiser. WSLS (Channel 10) did a news story, prompting cards, letters and cash contributions from strangers.

Roanoke police Officer Bryan Lawrence, who was disabled as a result of a severe beating in May 2008, heard about the Gentrys and showed up at the DirectSat office with a $1,000 contribution.

"The office manager called me, crying," Andrea Gentry said. "She said, 'You're not going to believe this.' "

The contributions helped the Gentrys stay afloat through March and April. Then the money ran out.

In May, repo men grabbed the minivan. Mike's father, Jerry Gentry, lent them his van.

They still needed money for bills, but none was coming in.

Andrea began to fear they would lose their house.

It wouldn't be exaggerating to call what happened next a minor miracle.

Andrea's stepmother, Mary Ann Snider, told a friend at church about the family's plight. The friend was Sidney Miller, 83, a retired executive with the Leggett department store chain who lives with his wife at Brandon Oaks.

The story moved Miller.

"I got the idea that we really needed to do something," he recalled. "When you see a cause that you really believe in, you jump in and do what you can."

Miller jumped in.

The church, St. Mark's Lutheran on Franklin Road, organized a fundraiser. Miller knew that wouldn't be enough. So the church printed fliers about the Gentrys.

"I went around to all the churches -- not just the Lutheran churches -- and told them the story, and left them a flier," Miller said. "We got a response from a few churches, but not many, except for Second Presbyterian Church. They really came through with a large donation."

The May 2009 fundraising event itself was "a rally," Miller said.

"We had live music, and food. Then at the end, we not only gave people the opportunity to donate, we went around," Miller said.

You can guess what that means. Sid Miller put the squeeze on everybody there, and then some.

The efforts of Miller and the church brought in upward of $13,500, Miller said.

It was more than enough to cover the Gentrys' mortgage for a year.

Mike always felt dogged by his inability to remember the accident. For one thing, he just wanted to know.

For another, that memory gap had financially devastated his family.

He could remember arriving at the house to install the dish and waking up in the hospital days later, but almost nothing in between.

He and Andrea tried to jog his memory by going to the house in Southeast Roanoke where he'd fallen. "He'd stare at the porch roof -- and nothing," Andrea said.

Until one night in June 2009, when he and Andrea were sitting in their living room watching TV.

"He just said, 'The battery died on my drill,' " Andrea said.

That was the first glimmer.

Over the next few weeks, Mike had more brief flashes of what had occurred more than four months earlier.

Then one day in July 2009, the whole thing came flooding back.

Mike remembered climbing up on the porch, and drilling holes in the roof to install the satellite dish.

When he was almost done, his battery-operated drill died. He needed a spare battery -- it was in his van. As he climbed down the ladder, it slipped and that's when he fell.

Suddenly he remembered it all, vividly. It played over and over in his mind, like an old newsreel.

"He was white as a ghost," Andrea said. "He was trembling and crying."

But they finally had some answers.

Matt Broughton, a lawyer with the Roanoke firm Gentry Locke Rakes & Moore, heard about Mike's injury in the summer of 2009.

Broughton has been a trial lawyer for 25 years, working as an advocate for plaintiffs in some cases, and for companies in others. One of his specialties is head injuries.

Broughton remembered Mike from a previous job. One of Mike's former co-workers mentioned Mike's plight to the lawyer.

Not long after, Andrea and Mike were in his office.

"They were desperate. They had children at home. Not many people could survive what they did," the lawyer said.

Broughton listened closely to Mike's account of recovering his memory. He said Mike was honest to a fault about details he could remember and ones he couldn't.

It conformed with what the lawyer had learned about brain injuries over the course of his career.

Broughton took the case.

You might think that things would speed along from this point.

In September 2009, Broughton filed for a hearing before the Virginia Workers' Compensation Commission. It was scheduled for Dec. 1.

Meanwhile, there were depositions. Mike did two via telephone. Other witnesses were interviewed, including Troy Hyer, the DirecTV customer whose roof Mike had fallen from.

"The battle we had was unbelievable," Broughton said. His file on the Gentry case stands nearly 3 feet tall.

The attorney representing Zurich was Charles Midkiff, the lawyer-lobbyist who had helped defeat the brain-injury loophole legislation in the General Assembly.

Shortly before the Dec. 1 hearing, Midkiff requested a postponement because of a scheduling conflict. It was rescheduled for Jan. 12.

The day before that hearing, Midkiff requested another delay.

"He had a nosebleed," Andrea Gentry said.

The Workers' Compensation Commission set another date for Jan. 19. Midkiff asked to delay that, too.

The hearing was rescheduled for April 12.

Broughton said the insurance company made several lowball settlement offers as the hearing date neared. He called the offers "ridiculous."

At one point, the insurance company tried to calculate Mike's wages as if he earned the minimum wage. That was $660 less per week than Mike's average weekly earnings, Broughton said.

"I think they were holding out, thinking he's going to settle, because he was so desperate for money," Broughton said.

The scheduled hearing never happened either.

On April 12, three hours before the hearing, Zurich North America caved.

More than a year after the insurance company cut off Mike Gentry's income and stopped paying his medical bills, Midkiff informed Matt Broughton that Zurich had "reinstated" Gentry's claim.

Workers' compensation is no-fault, which means nobody gets rich off it. There was no enormous settlement.

The system is designed to avoid those. And Broughton's fee would come out of the award.

Zurich reimbursed the Gentrys for all Mike's previous medical expenses related to his injury. He is still trying to get the Social Security Administration to approve his disability claim.

The insurer retroactively covered the unpaid workers' compensation from the time Zurich stopped paying, as well as mileage for visits to doctors and the cost of his medicine.

That totaled $25,700. The Gentrys still owe the law firm money.

Zurich would cover Mike's future pay (two-thirds of his salary) for at least 10 years, and medical coverage related to his injury for the rest of his life.

It's not going to be an easy one. Mike can function, but with difficulty.

He still has his great sense of humor. But he also has double vision, his speech sometimes is slurred, and daily life often overwhelms him and leaves him exhausted. He has frequent and unpredictable major seizures, and trouble thinking ahead. He takes 10 medications daily.

In short, the Gentrys got no more or less than what workers' compensation is designed to do: ensure that after an on-the-job injury, a worker and his family can eat and don't lose their house.

No thanks to Zurich North America, that almost happened to Mike and Andrea Gentry.

But they never gave up.

And this community never gave up on them.

To see more of The Roanoke Times, or to subscribe to the newspaper, go to http://www.roanoke.com/.

Copyright (c) 2010, The Roanoke Times, Va.

Distributed by McClatchy-Tribune Information Services.

For more information about the content services offered by McClatchy-Tribune Information Services (MCT), visit www.mctinfoservices.com, e-mail [email protected], or call 866-280-5210 (outside the United States, call +1 312-222-4544)