Written by Bob McAdam, Esq.
Edited by Rachel Riordan, Esq.
In Virginia, a claimant may receive permanent total disability benefits (compensation for the claimant’s life, not limited to the 500 weeks set forth in Virginia Code §65.2-518) when the following occurs:
- Loss of two limbs in the same accident (or appropriate loss of use of two limbs).
- Total paralysis.
- Severe brain injury, so as to render the claimant permanently unemployable in gainful employment.
In a majority of cases involving an upper or lower extremity, only one of the extremities is injured in the compensable accident. Does this mean that you do not ever have to reserve the claim for more than 500 weeks of compensation in these cases? Not necessarily.
As long as the injuries to the two limbs occurred “in the same accident”, there is a potential for a permanent total disability claim.
So, the issue becomes, what does “in the same accident” mean? It might not mean what you think it does.
A very stark illustration of this principle was discussed by the Court of Appeals of Virginia in Merck & Co. v. Vincent, 71 Va. App. 439, 837 S.E.2d 80 (2020).
In Vincent, the claimant sustained a compensable injury by accident to his left arm. The claimant prevailed before the deputy commissioner. The claimant then underwent surgery to repair those injuries.
Two years later, the claimant became dizzy and fell as a result of the pain medication that he was taking in the aftermath of the surgery, injuring his knee in the fall. The claimant filed a claim, alleging the knee injury a compensable consequence of the original accident. The claimant prevailed before the deputy commissioner.
Several years later, the claimant filed a claim alleging permanent total disability benefits, which provided for total and permanent disability for the loss of two limbs “in the same accident.” (in this case, the left arm and knee). The employer defended the PTD claim on the basis that the knee injury, although a compensable consequence of the original injury, did not occur in the same accident as the original injury, precluding an award of PTD benefits. The deputy commissioner awarded benefits, and the Full Commission unanimously affirmed. This appeal followed.
The Court of Appeals affirmed the holding of the Full Commission, finding that a compensable consequence of a compensable injury necessarily arises out of the same accident as the original injury and therefore, in this case, satisfies the Code’s requirement that the loss of two limbs occur “in the same accident.” In this matter, the employer has conceded that claimant lost the use of two limbs within the meaning of the statute, and, therefore, claimant is entitled to compensation for permanent total incapacity.
On October 6, 2020, the Supreme Court of Virginia granted the appeal of the employer.
The employer assigned as error the decision of the Court of Appeals of Virginia that the claimant qualified for PTD benefits. The employer maintained that the decision was in error because the injuries to the two extremities relied upon by the claimant to support his eligibility for permanent total disability benefits occurred in two separate and distinct accidents rather than “in the same accident” as Code § 65.2-503(C)(1) requires.
We anticipate that the Supreme Court will render a decision in the next few months.
What does the opinion of the Court of Appeals mean to you?
- A claim involving one limb can become a claim involving two limbs.
- Once a claim involves two limbs it is a potential PTD claim.
What are the practice pointers for those handling claims?
- Know what medications the claimant is taking.
- Know what the potential side effects of those medications are. Specifically, do the prescribed medications cause dizziness, blackouts, etc.
- Examine the medical records to determine if there is any indication that the prescribed medications have caused any of these symptoms, before a potential compensable consequence occurs.
We will monitor the Supreme Court of Virginia’s website, awaiting their opinion. If the Supreme Court reverses the Court of Appeals, it will be much easier for claims handlers and employers to assess future compensation exposure. If, however, the Supreme Court affirms the decision of the Court of Appeals, then consideration needs to be given for future PTD.