Prosthetics and “Corrective Devices” under the Act – New ruling from Virginia Court of Appeals clarifies their effect on PPD ratings

Prosthetics and “Corrective Devices” under the Act – New ruling from Virginia Court of Appeals clarifies their effect on PPD ratings

Written by Jessica Gorman, Esq.
Edited by Rachel Riordan, Esq.

The Workers’ Compensation Act provides compensation for permanent partial loss of use of certain body parts, including the loss of a leg. See Code § 65.2-503(B)(13). “[F]or the permanent partial loss or loss of use of a member, compensation may be proportionately awarded.” Code § 65.2-503(D). A numerical rating of the permanent partial loss of use of the injured body part is required so that benefits may be proportionally awarded according to the percentage loss and determined by the schedule in Code § 65.2-503(B).” See, Va. Nat. Gas, Inc. v. Tennessee, 50 Va. App. 270, 279 (2007) (quoting, Hill v. Woodford B. Davis Gen. Contractor, 18 Va. App. 652, 654(1994)). An injured worker bears the burden of proving the level of impairment from a work-related injury. Hungerford Mech. Corp. v. Hobson, 11 Va. App. 675, 677-78 (1991). “Where the issue concerns a permanent partial loss of use, the Commission must rate ‘the percentage of incapacity suffered by the employee’ based on the evidence presented.” Id. at 677 (quoting, County of Spotsylvania v. Hart, 218 Va. 565, 568 (1977)).

But what happens when an injured worker has a compensable injury which requires a surgical implantation of a prosthetic which later improves the injured workers’ function? Is the permanent loss of use determined PRIOR to any surgical correction OR after any such replacement, as the replacement is undertaken to provide the injured worker with more function?  This question was recently answered by the Court of Appeals in Loudoun Cnty. v. Richardson, 70 Va. App. 169 (2019).

In this case, the injured worker suffered a left hip injury.  He underwent arthroscopic surgery in July 2014 and hip replacement on May 7, 2015.  On November 4, 2016, his physician provided him with an 11% impairment rating to his left leg. On January 25, 2017, the physician provided a report explaining that the injured worker had reached maximum medical improvement three to four months after the arthroscopic surgery. He further opined that the injured worker’s condition was permanent and would only worsen without a total hip replacement.  As such, the physician opined that the injured worker had suffered a 74% loss of use of his leg, prior to any replacement surgery.

Naturally, the injured worker requested permanency benefits based upon the 74% impairment provided to his lower extremity.  The Full Commission opined that the proper standard under Virginia Code § 65.2-503 was to determine the loss-of-use rating, before any corrective surgery that implants a prosthesis. This was then appealed to the Court of Appeals arguing that this then provides an injured worker with a windfall.

The Court of Appeals affirmed the Full Commission’s decision and held that the injured worker’s functional loss for purposes of determining any impairment rating, was to be taken prior to the hip replacement. The Court of Appeals noted “functional loss of use is measured by an injured worker’s status at the time of the necessary implantation of a “corrective device.”  Creative Dimensions Grp. Inc. v. Hill, 16 Va. App. 439 (1993). The decision also looked to this decision in Hill, and noted that an injured worker’s benefit from the prosthetic device does not eliminate the fact of the bodily loss. Hill, 16 Va. App. At 444-445.

The Court of Appeals held that “awarding compensation based upon a pre-surgery loss-of-use rating recognizes that a work-related injury has permanently deprived the [injured worker] of natural functionality.” The Court reasoned that it takes into considerations not only the irreplaceable loss of the injured workers’ joint, but also “the non-monetary costs associated with corrective surgery, and the permanent restrictions on the [injured workers’] activities resulting from the work-related injury.”

When you have an injured worker who is being referred for a total hip or total knee replacement, for example, you may want to be prepared for opposing counsel to seek an opinion on permanency prior to the surgical intervention. At that time, you may also want to consider either asking the treating physician for an opinion and/or obtaining your own rating. If you wait until after the implantation is completed, you may be confronted with an argument that the IME physician did not have the benefit of physically examining the injured worker prior to the surgery, which could go the weight given to the opinion from the IME physician.

Should you have any questions as to those circumstances for which you may want to seek your own opinion, or how to minimize exposure, we would be happy to assist you.

 

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