Written by Bob McAdam, Esq.
Edited by Claire C. Carr, Esq.
The Court of Appeals of Virginia recently decided a case with potentially far-reaching effects. In Merck & Co. v. Vincent, COA Record No. 0424-19-1, (01/14/2020) the Court explained some of the major pitfalls of the doctrine of compensable consequences.
First, what is a “compensable consequence?” The compensable consequence doctrine applies “when the injury does not arise on the day of the accident, but instead develops as a direct consequence of an initial injury.” Under the doctrine of compensable consequences, an employer's liability for an industrial injury extends to “all the medical consequences and sequelae that flow from the primary injury.” The employer is responsible for a natural consequence that flows from the original injury, if it is a direct and natural result of the primary injury.
In Vincent, the Court of Appeals affirmed the Full Commission’s affirmation of a deputy commissioner’s award of permanent total disability benefits to a claimant, who lost the use of his left arm while working for the employer and subsequently lost the use of his leg as a consequence of the effects of medication taken for the arm injury—because the compensable consequences of the leg injury arose “in the same accident” as the arm injury for the purpose of Va. Code Ann. § 65.2-503(C).
In 2009, the claimant injured his left arm and neck while working for the employer. The deputy commissioner awarded temporary total disability, and the Commission affirmed. The employer did not appeal that award. The claimant underwent surgery to treat these injuries. In 2011, he became dizzy and fell as a result of the pain medication he was taking in the aftermath of the surgery, injuring his knee in the fall. He sought compensation for the knee injury as a compensable consequence of the original work-related injury. The deputy commissioner awarded compensation, and the employer did not request review by the Commission.
In 2017, the claimant requested total and permanent disability under Code § 65.2-503(C), which provides for total and permanent disability for the loss of two limbs "in the same accident." The deputy commissioner awarded compensation. The employer sought review, arguing 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 under Code § 65.2-503(C). The Full Commission unanimously affirmed, and this appeal followed.
The Vincent court examined the requirements for a permanent total claim. Code § 65.2-503(C)(1) provides for compensation as “permanent and total incapacity” when an individual loses “both hands, both arms, both feet, both legs, both eyes, or any two thereof in the same accident.”
Because the compensable consequence doctrine allows compensation for a new injury even without a new accident, injuries under the compensable consequence
doctrine are treated as if they occurred "in the same accident." Relating the new injuries to the original accident satisfies the statutory definition of "injury" for purposes of the Act.
What does this mean for us? More claims than we might think have the potential to be permanent total claims. What starts out as a relatively simple claim could end up as a catastrophic one.
When a claimant only injures one limb in the accident, there is always the possibility of the claimant injuring another limb later on. With the proliferation of
medications being prescribed to claimants, it is entirely foreseeable that a claimant could be injured while under the influence of those medications. Of course, the claimant has the burden of proving loss of use of both limbs.
Should you wish to discuss this matter, please feel free to contact one of the members of the KPM Workers’ Compensation team.