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By Scott Daugherty

The Virginian-Pilot



A Chesapeake man stayed up 24 hours straight at one point in August, then went to Busch Gardens before fatally swerving into oncoming traffic and killing a Moyock, N.C., man, according to court documents.


Last week, Daniel A. Morrison, 26, pleaded guilty to reckless driving and was sentenced to six months in jail. This week, he is facing a $2.3 million lawsuit filed by his victim's family.


The Aug. 15 wreck claimed the life of Theodore Cherry Jr., 58, a maintenance worker for the Chesapeake school system who retired shortly before the crash, according to the lawsuit.


Efforts to reach Morrison at his only known phone number were unsuccessful. He must report by March 9 to the Chesapeake Correctional Center, prosecutors said.


According to a plea agreement, Morrison acknowledged that he worked from 6 p.m. Aug. 14 until 6 a.m. Aug. 15 and that after work, he went to Busch Gardens.


"Instead of going home and going to sleep, he put everyone at risk," said Philip Geib, the Cherry's attorney.


Morrison returned from the amusement park at 3:45 p.m., the agreement said. He then went to pick up his daughter from his parents' home, stopping first at a convenience store, where he bought and consumed an energy drink.


On his way home from his parents' home, Morrison fell asleep behind the wheel of his SUV about 5 p.m. as he drove north on South Battlefield Boulevard near Hanbury Road. The SUV crossed a double yellow line and collided head-on with Cherry's southbound sedan.


Morrison was driving about 50 mph at the time of the wreck, the agreement said. Cherry died at the scene and his wife, Helen Cherry, was seriously injured.


In the lawsuit, Helen Cherry alleges among other things that Morrison failed to keep a proper look out, exceeded a reasonable speed and drove in a reckless manner. Also, the suit contends he should have known that going so long without rest "would likely lead to him falling asleep" behind the wheel.


Morrison was convicted Oct. 3 of reckless driving and sentenced to 12 months in jail with all but four months suspended, according to court records.


Morrison appealed the verdict, only to plead guilty. He was sentenced to 12 months in jail with six months suspended and ordered to pay $2,626 in fines and court costs, court records said.

By Harry Minium

Robert McCabe

The Virginian-Pilot





The Virginia Senate approved a bill Tuesday under which shipyard workers and longshoremen who suffer serious injuries on the job will no longer be covered through Virginia's workers' compensation program.


HB153, sponsored by Del. Lee Ware, R-Powhatan, passed 20-19, with largely Republican support. It already had passed the House, 70-26, and now goes to the desk of Gov. Bob McDonnell.


The bill would take thousands of shipyard workers regionwide and roughly 1,800 longshoremen at the port of Hampton Roads out of Virginia's workers' comp program for any injuries suffered July 1 or later. They would depend solely on protection offered through a federal law, the Longshore and Harbor Workers' Compensation Act.


The International Longshoremen's Association in Hampton Roads opposes the legislation.


"The passage of this bill has hurt a specific and very important class of workers - that's dockworkers in the port of Hampton Roads," said Thomas M. Little, international vice president of the ILA in Hampton Roads. "This is detrimental to dockworkers and their families."


Shipyard workers at Newport News Shipbuilding and other facilities also are affected.


Renee Gardner of Chesapeake, whose husband has worked at Newport News Shipbuilding for 33 years, said she knew nothing about the legislation until she read about it in The Virginian-Pilot.


"This was definitely hidden, with no notice, and I'm absolutely furious," she said, adding that she's no stranger to the process, having been involved in Virginia Republican campaigns for years.


Under the current arrangement, an injured shipyard worker can file claims under the state and federal longshore-act program, though the laws prohibit "double-dipping."


Most workers in Virginia are eligible for coverage only under the state program.


"The Longshore Act is almost universally viewed as more generous than the Virginia state act," said F. Nash Bilisoly, an attorney with Vandeventer Black, who has represented shipyards and marine terminal owners in the port of Hampton Roads.


Though he said there are some differences between the coverages provided under each, the bottom line is that "it's just not appropriate in Virginia for shipyards and terminals to insure for the same liability twice."


Other attorneys, however, say the state program has functioned as a kind of back-up to the federal plan, providing the possibility of continued benefits for workers with injuries to extremities whose coverage under the Longshore Act can end after a certain number of weeks.


"Now that safety net has been taken away," said Bob Walsh, an attorney who has represented longshoremen and shipyard workers.


Sen. Frank Wagner, R-Virginia Beach, backed the bill after a rules subcommittee, at Wagner's request, weighed any potential conflict and ruled he was eligible to vote. Wagner is president and CEO of Davis Boat Works in Newport News, and many of his employees would be affected by the bill.


Sen. Ralph Northam of Norfolk was the only Democrat to vote for the bill.

Virginia senate ok's limit on shipyard worker's comp

By Robert McCabe

The Virginian-Pilot





Shipyard workers who suffer serious injuries on the job, such as the loss of a hand or foot, would no longer be able to get coverage through Virginia's workers' compensation program, under legislation being considered by the General Assembly.


If the Senate approves the bill - patroned by Del. Lee Ware, R-Powhatan - 20,000 employees at Newport News Shipbuilding, roughly 1,800 longshoremen at the port of Hampton Roads, workers at private repair shipyards and those at other port facilities across the state would be carved out of Virginia's workers' comp program for any injuries suffered July 1 or later. They would then have to depend solely on protection offered through a federal law.


The House passed the bill, HB153, on Feb. 6 by a vote of 70-26.


The International Longshoremen's Association in the port of Hampton Roads opposes the legislation.


"Why in the world should a Virginia harbor worker be denied benefits that are provided for other Virginia citizens who work in a business across the street from the harbor?" said Deborah C. Waters, general counsel for the longshoremen's union.


Officials at Newport News Shipbuilding, a division of Huntington Ingalls Industries Inc., declined to comment, deferring to an industry trade group.


Arthur W. Moye Jr., executive vice president of the Virginia Maritime Association, which represents more than 400 member organizations employing more than 70,000 workers in port-related jobs, said the primary reason for seeking the legislation was duplication.


Harbor workers are the only employees in the state who can seek workers' compensation coverage under both state and federal programs, he said. Most workers in Virginia are eligible for coverage only under the state program.


"We feel the federal act covers the needs of an injured worker and covers it in a far superior way than the Virginia state act does," Moye said.


Some attorneys familiar with such cases disagreed.


"The bill would drastically cut disability benefits for workers who suffer any permanent injury to an arm, hand, leg or foot, even if the worker suffers a significant economic loss due to job loss, or the inability to do the heavy work they did before," Matthew H. Kraft, a Virginia Beach attorney who handles workers' compensation cases, wrote in an email.


Today, injured maritime workers in Virginia, like those in some other states, are covered under the state's workers' compensation program as well as two federal programs: the Longshore and Harbor Workers' Compensation Act and the Merchant Marine Act, or Jones Act, which applies only to members of crews of vessels under way.


Under the current arrangement, an injured shipyard worker can file claims under the state and federal longshore-act program, though the laws prohibit "double-dipping."


"There's a lot of things that the state act does that the longshore act doesn't cover," said Stephen Harper, a Richmond attorney and chairman of the workers' comp section of the Virginia Trial Lawyers Association.


In the event of a fatal injury, for example, the state program offers the family of the victim a $10,000 funeral benefit plus $1,000 in transportation costs, Harper said.


Under the federal program, the maximum funeral benefit is $3,000.


Under the state and federal plans, Harper said, if a worker suffers a permanent injury, such as a crushed ankle, that prevents him from returning to his old job, he is eligible for compensation for a certain period of time, based on a doctor's evaluation of the degree of impairment.


In most cases, once the payment is made under the federal programs, the insurer's obligation ends. Through the state workers' comp program, however, benefits can last as long as 500 weeks, or 9-1/2 years.


"They're putting the longshore people in a much, much worse situation than the guy working down the street at Walmart," Harper said. "The same injury, the guy down at Walmart may be able to get lost wages because of that ankle fusion for 9-1/2 years, potentially, but under the longshore act it could be a lot less."

Shipyard workers could see worker's comp limited

by Virginia Lawyers Weekly Staff

Dolan Media Newswires


RICHMOND, VA -- $3,500,000 Verdict


The 24-year-old decedent went to the defendant doctor with chest pain and a cough. He was diagnosed with chestwall pain and prescribed a narcotic pain reliever. The decedent returned the next day with complaints of increased chest pain and spitting up blood-stained sputum. He was perspiring and vomiting in the doctor’s waiting room. He was diagnosed with upper respiratory infection and prescribed a cough syrup containing more narcotics.


That same day the decedent visited the hospital and underwent a chest X-ray. The hospital confirmed with the defendant’s office that the doctor received the results via facsimile shortly thereafter. The X-ray showed pneumonia.


However, the decedent was unaware of the new diagnosis because the X-ray results were not reviewed by the defendant doctor until two days later. Upon review of X-ray results, the doctor’s office misdialed the decedent’s phone number when trying to contact him with the diagnosis of pneumonia. No further attempts were made by the defendant to contact the patient.


Decedent’s former wife found him at home unresponsive. He died of pneumonia shortly after admission to the emergency department.


The jury verdict was reduced to the medical malpractice cap of $1.85 million.




Type of action: Medical malpractice


Injuries alleged: Death - Streptococcal pneumonia in all four lobes of lungs


Name of case: Vicky T. Westermann, Admin. of the Estate of Kenneth M. Westermann, deceased v. Arthur V. Bermisa MD and Bermisa and Bermisa MD, PLC


Court: Portsmouth Circuit Court


Case no.: CL07-2310


Date: Sept. 16, 2010


Tried before: Jury


Judge: Johnny E. Morrison


Verdict or Settlement: Verdict


Amount: $3,500,000


Attorney for plaintiff: Philip J. Geib, Virginia Beach


Attorneys for defendants: Carolyn P. Oast and Mark J. Favaloro, Virginia Beach


Plaintiff’s experts: Richard Hoffman MD; Glenn McDermott MD; Wendy Gunther MD, medical examiner

Man dies from pneumonia before learning of diagnosis

By Kathy Adams

The Virginian-Pilot





Jason Lee had always dreamed of becoming a police officer.


His wife wasn't so sure. Why would you want to take a $15,000 pay cut to work long hours in a dangerous job?


She yielded, though, and in February 2003, Lee, a former Coast Guard petty officer first class, left his job as a network systems analyst at a tech company and joined the Virginia Beach Police Department. He excelled, and in 2007 he was named the city's Top Cop for his courageous response to a September 2006 shooting outside a nightclub.


Then the call came that Debbie Lee had been dreading, Her husband had been injured on the job.


On July 7, 2008, as he escorted a man in handcuffs down a flight of stairs, the man slipped. Lee grabbed his arm to keep him from falling and immediately felt a sharp pain in his back and groin.


Doctors eventually diagnosed a hernia in his groin and a ruptured disc in his spine. Three surgeries later, he's still in pain and has permanent nerve damage that makes his right foot go numb, causing him to fall.


The injuries eventually cost Lee his job and led to a lengthy battle with the city over workers' compensation benefits and medical expenses. During the dispute, he and his wife sold their home, drained their savings and relied on donations and generosity of family.


Their battle may have finally come to an end.


Ahead of a workers' compensation hearing scheduled for Tuesday, the city agreed last week to meet Lee's demands, said his attorney, Philip Geib. They've drafted an agreement to pay several months of withheld workers' compensation payments, reimburse him for all his medical expenses and cover all future costs related to his injury, he said.


The city will also start paying Lee the weekly workers' compensation stipend it has been withholding since he stopped working six months ago, Geib said. Before then, Lee had worked some light duty at the police department, but he had to stop because of his frequent falls, his pain level and his medications.

Lee estimates the city owes him about $24,000.


"I'm just happy the city did the right thing finally," he said. "It's a little late, but it's better to do the right thing now then never."


The Lees are still left with one question: Why did they have to fight so hard for so long?


For a while, Sedgwick Claims Management Services Inc., the private company that manages the city's injury claims, denied Jason Lee's benefits, questioning "if his alleged groin injury and/or hernia is related to his 7/7/08 incident," according to a workers' compensation denial form from the company dated April 2, 2009.


City officials declined to comment on Lee's case, citing privacy issues. Workers' compensation cases are complicated, said city Finance Director Patricia Phillips, who oversees the risk management department.


"We never try to purposely create a hardship on our employees," she said. "They work hard and they deserve our attention; however, every once in a while, you will have situations."


The city receives about 1,100 injury claims each year, said John Grook, the city's risk management administrator. Sedgwick manages the claims, but the city pays the bill, which totaled roughly $6.7 million last fiscal year, he said.


The city typically does a good job caring for injured police officers, said Officer Lucian Colley, president of the Virginia Beach Police Benevolent Association, a law enforcement union. He's had two back and knee surgeries, and the city covered everything, he said.


"The city has always taken good care of me," he said. "I'm very surprised what this young officer has gone through and there's no excuse for it."


Colley said he plans to conduct a survey to see whether other officers have had problems like Lee's.

The past two years have taken a toll on Jason Lee, Debbie Lee and their two children - Katelyn, 11, and Thomas, 5.


With three major surgeries, about a dozen CT scans and MRIs and prescriptions for painkillers and other medications, the bills added up fast. Jason Lee had been the family's sole breadwinner because his wife is disabled from a shattered pelvis she suffered in childbirth.


They've scraped by, cutting out all the extras, like Thomas' soccer and Katelyn's school yearbook, and their school photos.


Because of his spinal injury, Jason Lee's right foot and leg often go numb, causing him to fall. Once he went to retrieve the mail and returned with bloody gashes on his knee, arm and forehead. Another time he fell on the stairs when his wife and children were outside playing. His foot got stuck and he shouted for help to get free, but they couldn't hear him outside. He ended up lying there until they returned.


"Now when we hear a thud upstairs, the kids run," Debbie Lee said.


They're hoping life will get a little easier now that payment is forthcoming. Jason Lee recently had a nerve severed in his spine to stop his back pain. He had a second procedure Friday. He'll still fall sometimes, but he shouldn't be in as much pain.


He's being administratively dismissed from the Police Department, where he'd risen to the rank of detective. He's bitter about the dispute.


"I'd sacrificed my family and everything for the Police Department or for the city, and when this happens, they just turn their back on me," he said.


Thomas says he wants to be a police officer when he grows up. That's OK with Jason and Debbie Lee, but they warn him about the risks.


"We don't discourage him," Debbie Lee said. "But we tell him."

Virginia Beach officer's painful wait for worker's comp

Lawsuit: Lack of sleep led to fatal Chesapeake wreck

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