Written by Jessica Gorman, Esq
Edited by Rachel Riordan, Esq.
Virginia Code section § 65.2-503 outlines the requirements for an injured worker to obtain benefits for any permanent impairment sustained as a result of a work accident and lists those scheduled body parts for which benefits may be awarded. However, under certain circumstances, injured workers have been able to obtain permanent partial disability benefits (“ppd”) even if the direct injury from the accident is not on the schedule listed.
Burden of Proof: In order to obtain benefits under Code § 65.2-503 for the loss of use of a particular body member, an injured worker must establish that (1) he has achieved maximum medical improvement and (2) that his functional loss of capacity be quantified or rated. Cafaro Constr. Co. v. Strother, 15 Va. App. 656, 661, 426 S.E.2d 489, 492 (1993) (citing Hungerford Mech. Corp. v. Hobson, 11 Va. App. 675, 678-79, 401 S.E.2d 213, 215 (1991)). The Commission, in determining permanent partial disability benefits, “must rate ‘the percentage of incapacity suffered by the employee’ based on the evidence presented” to it. Hobson, 11 Va. App. at 677, 401 S.E.2d at 214-15 (citing Cty. of Spotsylvania v. Hart, 218 Va. 565, 568, 238 S.E.2d 813, 815 (1977)). “In order to recover, [the injured worker has] the burden of establishing by a preponderance of the evidence the existence of a disability which was the consequence of the injury by accident.” Id. at 678, 401 S.E.2d at 215. When the evidence is analyzed, actual functional loss of use must be demonstrated. Gaskins v. Arlington Cnty., JCN VA00000034125 (Nov. 15, 2011) (citing Gardner v. Greyhound Lines, Inc., VWC File No. 187-22-39 (Sept. 24, 2001).
MMI: In determining whether an injured worker has reached maximum medical improvement (“MMI”) sufficient to warrant an award of ppd benefits, the Commission evaluates and weighs the evidence presented. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991). In reviewing the medical record, the Commission typically affords great weight to the treating physician’s opinion. Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572 (1986). If the treating physician’s opinion is shaded by doubt, or there is expert medical opinion contrary to such opinion, the Commission may adopt the opinion most consistent with reason and justice. See Williams v. Fuqua, 199 Va. 709, 714, 101 S.E.2d 562, 567 (1958).
The injured worker has the burden of proving maximum medical improvement. Montalbano v. Richmond Ford, LLC, 57 Va. App. 235, 250, 701 S.E.2d 72, 79 (2010). “Permanent partial disability benefits are ‘not awardable until the injury has reached a state of permanency, i.e. maximum improvement, when the degree of loss may be medically ascertained.’” Id. (quoting Brown v. United Airlines, Inc., 34 Va. App. 273, 277, 540 S.E.2d 521, 523 (2001)). An injured worker has reached MMI if “no reasonable expectation exists that the injured worker will obtain further functional improvement from medical treatment, even though the injury remains symptomatic and disabling.’” Id. (quoting Gunst Corp. v. Childress, 29 Va. App. 701, 707, 514 S.E.2d 383, 386 (1999)). MMI may be inferred “if the injured worker has had only minimal improvement for an extended period, and . . . has reached a plateau of improvement such that his condition is essentially static.” Bega v. Loudoun Cnty. Pub. Schs., JCN VA00000969185 (July 11, 2016).
What happens if an injured worker has been referred for additional surgery which the injured worker does not intend to obtain at that moment or has been advised that surgery may be required in the future?
This has no bearing on an injured workers’ ability to obtain ppd benefits. “The possibility of future surgery does not negate a finding of maximum improvement.” Estep v. Earl Coal Co., VWC File No. 143-03-78 (Nov. 30, 2000) (citing Quesenberry v. Fed. Mogul/Blacksburg Plant, VWC File No. 159-12-58 (Nov. 17, 1995)). Even with a referred for joint replacement surgery, the Commission can infer a finding that an injured worker has reached MMI. Kandis v. LM Sys. Mgmt., JCN 231-91-34 (Aug. 2, 2012).
Functional Loss / Rating: The Commission, in determining permanent partial disability benefits, must rate the injured workers’ percentage of incapacity or loss of function based on the evidence presented to it. In doing so, it gives great weight to the treating physician’s opinion. United Airlines, Inc. v. Sabol, 47 Va. App. 495, 501, 624 S.E.2d 692, 695 (citations omitted). Medical evidence is not necessarily conclusive, however, and it is subject to the Commission’s consideration and weighing. Id. The Commission may weigh or average conflicting impairment ratings. See, e.g., Deel v. Goodyear Tire & Rubber Co., 77 O.W.C. 167 (1998); Trekas v. Cont’l Baking Co., 75 O.W.C. 203 (1996).
What happens if a physician fails to use the AMA Guidelines which outline the basis for calculations of permanent impairment?
An impairment rating does not have to be determined by any set guidelines, tables, or otherwise. Choudhary v. Fairfax Co. Pub. Schs., JCN VA00000199617 (July 6, 2016). See Blakey v. Univ. of Va. Health Sys., No. 0837-14-4 (Va. Ct. App. Feb. 18, 2015). The Commission is not, “limited by specific loss schedules or by various published guides which determine incapacity on the basis of a percent of motion or function of a member.” Rivera v. Ford Motor Co., VWC File No. 216-39-16 (July 12, 2006).
However, when evaluating a physician rating or evaluation for permanent partial disability, it should be analyzed for whether there is any specific percentage rated SOLELY for pain. Pain alone is not compensable, unless it “is shown to be a specific inhibiting factor causing loss of use.” Young v. Westmoreland Coal Co., 69 O.I.C. 127, 129 (1990). “While pain alone is not compensable, the Court of Appeals has recognized that, “common sense, logic, and medical opinion dictate that pain can, at times, impair function and result in disability.” Lynchburg Foundry Co. v. Tucker, No. 2251-91-3 (Va. Ct. App. Sept. 29, 1992) (quoted in Blakey v. Univ. of Va. Health Sys., No. 0837-14-4 (Va. Ct. App. February 18, 2015)). As such, the Commission held that “pain, which is an ‘inhibiting factor causing loss of use’, is compensable.” Id.
Ratable body parts: As indicated above, Virginia Code section § 65.2-503 publishes a schedule for those body parts which are ratable and for which benefits can be awarded. Of note, those body parts and injuries which are absent from the list and are not included for purposes of this section include the spine. Although the Workers’ Compensation Act does not provide loss of use benefits for injuries to the back, “compensation may be awarded for permanent loss of use of the lower extremities resulting from low back injuries . . . or cervical spine injuries.” Scott v. Diener’s Linoleum & Tile Company, 57 O.I.C. 313, 315 (1976) (citation omitted).
Furthermore, the Commission has extended the ratings beyond an isolated injury to a shoulder (which is not on the schedule) and allowed for disability to the upper extremity / arm (which is scheduled) where the impairment “rating was based, in part, upon reduced motion on extension, abduction, adduction, and flexion on internal and external rotation of the shoulder.” See Adomako v. DBHDS \ Northern Virginia Training Center, JCN VA0000066375 (March 3, 2009); Williams v. Newport News Shipbuilding, VWC File No. 234- 41-38 (January 8, 2010).
How does the Commission view permanent impairment and ratings for those cases in which the injured worker requires an implantation or corrective devise?
When determining the amount of permanent impairment sustained by a claimant, the Commission must examine the loss of use caused by the industrial accident, not the loss sustained after the implantation or use of a corrective device. See Creative Dimensions Grp. v. Hill, 16 Va. App. 439, 445, 430 S.E.2d 718, 722 (1993). The injured worker in Creative Dimensions sustained an eye injury, and eventually required the total removal of its natural lens. It was replaced by an intraocular lens implant, which improved his vision when compared to his condition before the surgery. The Court of Appeals of Virginia found the claimant’s injury, and the removal of his lens “rendered him industrially blind.” Id. The Court affirmed the Commission’s award of benefits based upon a 100% loss of use of the eye, holding that “[t]he fact that claimant presently receives some benefit from a prosthetic device implanted within his eye does not establish that the claimant’s loss has been eliminated. . . . [A]s a mere corrective device, the implant should not be considered in determining the extent of the claimant’s loss.” Id. at 445-46, 430 S.E.2d at 722.
Similarly, in Rowe v. Dycom Industries, Inc., VWC File No. 179-38-18 (Apr. 24, 2002), an injured workers’ condition improved after knee replacement surgery, thus the argument was made that the degree of impairment should be assessed, based upon the condition of his knee after the surgery. The Commission disagreed, and relying upon the Court of Appeals’ analysis in Creative Dimensions, held that the degree of disability should be assessed, based upon the condition of his knee before surgery.
Specifically, the Court of Appeals’ concluded in Creative Dimensions, supra, “the true measure of a loss of use as envisioned by the General Assembly is a claimant’s status at the time of the necessary implantation of a mechanical device into the body of a claimant who is severely injured and has reached maximum medical improvement (unaided by implanted prosthetics). Risks are inherent with an implanted knee replacement, of eventual breakage or wearing out, which may need reimplantation; nevertheless, the actual loss has been occasioned by the original accident’s degeneration and only by the grace of medical science is there a continued functioning. The claimant has lost the partial use of his leg but for steel, paraplastics, and mechanical engineering. Such is a permanent loss of use of part of his natural body. Rowe Opinion at p. 3.
But what happens if an injured worker had previous treatment or a pre-existing condition for your case?
Pre-Existing Conditions and impact on PPD: Under settled principles, an employee can recover a permanent partial loss award under Code § 65.2-503 only for an impairment caused by a work-related accident. When a work-related accident aggravates a preexisting condition, an employee can recover for the degree of impairment caused by the aggravation but not for any preexisting impairment unrelated to the work-related accident. By statute, “if an employee has a permanent disability” prior to the work-related accident, he is “entitled to compensation only for the degree of incapacity which would have resulted from the later accident if the earlier disability or injury had not existed.” Code § 65.2-505(A) (emphasis added). . . . Fairfax Cty. Sch. Bd. v. Martin-Elberhi, 55 Va. App. 543, 545-46, 687 S.E.2d 91, 92 (2010).
“[A]n employer is entitled to a credit for a pre-existing condition or defect only if the ‘evidence shows[s] that the claimant suffered a pre[-]existing functional loss’ of use.” Va. Nat. Gas, Inc. v. Tennessee, 50 Va. App. 270, 280, 649 S.E.2d 206, 211 (2007) (quoting United Airlines, Inc. v. Sabol, 47 Va. App. 495, 502-03, 624 S.E.2d 692, 695 (2006)). “In other words, for purposes of determining permanent partial disability benefits under Code § 65.2-503(B) and 65.2-503(D) for an employee’s permanent partial loss of use of a body part, the commission may deduct that portion of an impairment rating attributable to a pre-existing condition or defect in the body part only where it is shown that the employee suffered a permanent pre-existing functional loss of use of that body part as a result of the pre-existing condition or defect.” Id. at 280, 649 S.E.2d at 212.
Recent Case Law: In a recent case, Richardson v. Loudoun County, Virginia, JCN:VA00000806147 (Sept. 4, 2018), the Full Commission examined some of these issues and ultimately awarded 75% ppd to the left lower extremity based upon an acute and specific accident and injury to the left hip. The defense made multiple arguments in that the hip was not a ratable body part and to the extent of disability awarded in light of pre-existing arthritis as well as the lack of use of AMA Guidelines for calculations of any such impairment. The Commission through its lengthy opinion discusses both the Rowe and Creative Dimensions Group cases (referenced above), and held that the injured worker was at MMI prior to any hip replacement surgery and was to be rated upon the pre-surgical basis for the accurate measure of loss. Further, the Commission relied up on the treating physician’s opinion, despite no contemporaneous examination or use of AMA Guidelines, and noted that the physician had treated the injured worker over an extensive period of time, had performed surgery on the injured worker, had monitored the injured workers’ PT, work hardening and rehabilitation, and had observed the injured worker both prior and since the hip replacement surgery. As such, the Commission held the medical opinion was not speculative. The Commission held that the physician had provided a clear rating for the loss of use of the leg due to the hip injury, thus it was payable under the schedule for the loss of use for the lower extremity. Finally, the Commission held that the pre-existing arthritis should NOT be deducted from the ppd rating as there was no evidence to reflect any pre-existing functional loss as a result of the arthritis. The Commission noted that they “could not presume that any cartilage loss was not related to the work injury.” The Commission found that the deduction taken by the Deputy Commissioner was arbitrary and reversed the same. In total, the Commission awarded the injured worker 75% ppd to the left lower extremity based upon functional loss attributed to the left hip injury.