Written by Jessica Gorman, Esq.
Worst case scenario for every case is permanent and total disability. High exposure, lots of medical treatment, significant reserves. But a recent decision by the Supreme Court of Virginia may have helped the defense limit this exposure.
In Virginia, for an injured worker to qualify for permanent and total disability benefits, they have to meet the standard and elements set forth in § 65.2-503(C). Section § 65.2-503(C)(1) permits an award of permanent total disability only if two disabling injuries occurred “in the same accident.” This would include the loss of both hands, both arms, both feet, both legs, both eyes, or any two thereof in the same accident. Id. This statute also accounts for injuries resulting in total paralysis, or injuries to the brain which rendered the employee permanently unemployable. Id.
The question recently raised and answered by the Supreme Court of Virginia, now effectively makes it a little harder for the injured worker to qualify, if you have the right circumstances. Many employees have made the argument that they have the loss of multiple body parts to qualify under the Act, when they injure one extremity/ body part in an initial accident but then have a secondary accident or compensable consequence impacting another extremity/body party. Whether you can consider adding extremities or injuries from a secondary accident to be considered the “same accident” was raised, defended and brought before the Supreme Court of Virginia in Merck & Co., Inc. v. Vincent, and was decided by an Opinion dated May 27, 2021.
In this case, the employee was a pharmaceutical sales representative. While making a sales call at a physician’s office, a case of materials became stuck in his car. As a result he injured his neck, left arm and left hand in the process of trying to remove it. The accident was accepted and he began treatment for his injuries. Subsequently, he was involved in a second accident at his home where he fell down his stairs and injured his left knee. He attributed the reason for that fall due to medications he was taking for the injuries from the work accident that caused dizziness. A claim was made and accepted for this additional injury as a compensable consequence.
Thereafter and upon exhaustion of the 500 weeks as required under the Act, the Claimant filed a claim for permanent total disability benefits in accordance with Virginia Code § 65.2-503(C)(1). Those body parts included in the change in condition claim in order to meet this requirement included the subsequent knee injury. The Employer defended and asserted that the subsequent knee injury did not “occur in the same accident” as required by the plain reading of the statute. The deputy commissioner found the injured worker had proven he met the requirements and awarded permanent and total disability benefits. This was appealed to the Commission by the Employer, and was affirmed. In an appeal to the Court of Appeals, the Court rejected the employer’s argument and agreed with the Commission. The Court opined that the purpose of the “in the same accident” language cited in the Code was designed to ensure that an employer is not liable for lifetime benefits for an employee’s subsequent injury if his previous injury was incurred while he was employed by someone else. In those cases where both injuries are suffered while the employee works for the same employer, the Court was not inclined to differentiate whether there were two injuries sustained at the same time because the effect on the employee was the same. Merck & Co., Inc. v. Vincent, 71 Va. App. 439, 449 (2020). It further discussed the rationale behind the compensable consequence doctrine in that it allows subsequent injuries that are the “natural consequence” of the original injury to be compensated as well, the result is that subsequent injuries that are the compensable consequence of the original injury “are treated as if they occurred ‘in the same accident. Id. At 446-47.
The appeal to the Supreme Court of Virginia was then taken into consideration of this specific issue. The Supreme Court of Virginia agreed with the employer that Code § 65.2-503(C)(1) only permits permanent and total disability if the two disabling injuries occur in the same accident. The Court reasoned “the compensable consequence doctrine does not allow injuries suffered in two separate accidents to be treated as if they occurred in the same accident. Rather, the doctrine allows a new injury that is causally connected to an earlier, compensable injury to be “treated as if it occurred in the course of and arising out of the employee’s employment.” Id. Citing, Leonard v. Arnold, 218 Va. 210 (1977). The Court concluded that because the employee in the present case was involved in a separate and secondary accident, as opposed to a deterioration or progression of a condition, the injuries in that second accident “did not naturally flow from a progression, deterioration, or aggravation of the injury sustained in the” first accident. Id. Where you have two, separate and distinct accidents they cannot be considered “in the same accident” and therefore the Supreme Court of Virginia held that it would not provide for a basis for a permanent and total disability claim. This decision then reversed the Court of Appeals decision and has been the topic of conversation in the legal community since it was issued.
So what does this mean for your claim? Pay close attention to those injuries sustained in the original accident. Document your file if there is a SECOND and SEPARATE accident with additional injuries sustained, even if it is accepted. In accordance with this new decision, you may not have to increase your reserves for permanent total disability benefits and can argue to limit your exposure to the 500 weeks designated under § 65.2-518. If you have questions about those additional accidents or injuries and whether you can limit your liability, please call us and we will be happy to discuss the details of your case with you.