Widow fights insurance decision with petition for judicial review

David Yates Apr. 30, 2008, 11:00am

Seeking the reversal of a workers' compensation panel hearing that left her penniless, a widow has filed a petition for judicial review against the insurance company.

Betty Avila, who allegedly lost her husband in a work related injury, filed the petition against the Insurance Company of the State of Pennsylvania on April 29 in Jefferson County District Court. Avila's two children are also plaintiffs in the suit.

Avila seeks review of an April 7 decision of the appeals panel of the Texas Department of Insurance-Division of Workers' Compensation that denied her benefits for Christopher Avila's death.

"In that decision, it was determined that Christopher Avila did not sustain a compensable fatal injury on Feb. 28, 2006, within the course and scope of his employment," the suit states.

"Since workers' compensation benefits are not payable on account of such an injury, the injury, by definition, is not compensable and has resulted in no disability. Plaintiffs would show this Court that Christopher Avila did sustain a fatal compensable injury."

Exhausting her administrative remedies, Betty Avila will ask Judge Bob Wortham, 60th Judicial District, to reverse the panel's ruling.

In the panel's decision, the panel wrote that "Christopher Avila's death was not the result of damage or harm to the physical structure of his body sustained while engaging in the exercise of his job duties."

"Plaintiffs are aggrieved by the determination (of the panel's ruling)," the suit says. "Plaintiffs would show � Christopher Avila's death was the result of damage or harm to the physical structure of his body sustained while engaging in the exercise of his job duties with his employer."

A copy of the Department of Insurance decision states that on Feb. 28, 2006, he collapsed while building a scaffold at Huntsman. It states that according to witness statements, "Avila did not fall from the scaffold, and there was no apparent cause of his sudden loss of consciousness."

The decision states that his colleagues immediately summoned medical assistance and attempted to resuscitate Avila, but he was pronounced dead one hour later.

The Department of Insurance states that according to an autopsy, Avila died as the result of internal bleeding caused by a liver laceration. The decision states that Dr. Brown, the medical examiner, and Dr. Heck, a doctor retained by the plaintiffs, indicated that the liver laceration was due to a work-related injury, but offered "no basis for this conclusory opinion other than to state that an injury of this nature likely would have been induced by a trauma occurring shortly before Mr. Avila collapsed."

Dr. Heck further stated that since no non-occupational cause of the liver laceration could be identified, "it was probable that this injury was properly attributable to Mr. Avila's employment."

However, a doctor retained by the insurance company, Dr. Natarajan, indicated that Avila died as the result of a sudden cardiac event and that his liver lacerations "were caused by incorrect resuscitation techniques," the Department of Insurance decision states.

The plaintiffs are represented by Provost Umphrey attorney Nicholas G. Palmarozzi, Jr.

Case No. A181-684

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