Trial News

The Virginia Supreme Court has clarified how to assess a worker’s functional loss of use from a work-related injury that requires a prosthetic device to be surgically implanted. Confirming the standard the state Workers’ Compensation Commission has applied since 2002, the court ruled 5-2 that the extent of an injury should be measured before a replacement surgery. (Loudoun Cty. v. Richardson, 2020 WL 2213410 (Va. May 7, 2020).) 

Michael Richardson, the fire battalion chief for the Loudoun County Fire & Rescue Department, injured his hip during a firefighter evaluation exercise in 2013. Richardson had exploratory arthroscopic surgery in 2014 and a hip replacement in 2015, performed by the same orthopedic surgeon. When asked to assess Richardson’s condition before the 2015 surgery, the surgeon concluded that Richardson had reached “maximum medical improvement” after the 2014 surgery and that his condition would only have worsened. He calculated Richardson’s loss-of-use rating before the hip replacement at 74%. After the second surgery, the surgeon concluded Richardson’s loss-of-use rating was 11%.

Richardson filed a claim for workers’ comp benefits based on the 11% loss-of-use rating but amended the claim in 2017 to reflect the 74% rating. A deputy commissioner at the state Workers’ Compensation Commission awarded Richardson permanent partial disability benefits but reduced Richardson’s loss-of-use rating to 49%, finding that part of his condition was due to preexisting arthritis.

Richardson’s employer appealed to the full commission, and Richardson cross-appealed, challenging the rating reduction. The commission affirmed that Richardson was entitled to benefits and modified the amount to reflect the 74% rating. After an appellate court affirmed the commission’s decision—and its conclusion that the surgeon’s presurgery rating was supported by “credible evidence”—the employer appealed to the Virginia Supreme Court.

To answer whether loss of use should be measured before or after surgery to implant a prosthetic, the state high court began by citing Owen v. Chesapeake Corp. (198 Va. 440 (Va. 1956)) and Creative Dimensions Group v. Hill (16 Va. App. 439 (Va. Ct. App. 1993)), which affirmed workers’ comp benefits awarded on the basis of presurgery loss-of-use determinations. Referencing a 2002 commission ruling in which benefits were awarded based on loss of use as measured before knee replacement surgery, the court wrote that the correct measure “of a loss of use as envisioned by the [state] General Assembly is a claimant’s status at the time of the necessary” prosthetic replacement surgery because the “implanted prosthesis could not replace the claimant’s loss.”

The court noted that the state legislature had had nearly 20 years to amend the statute but chose not to do so, meaning that “employees have long relied on and that employers have long understood” this standard. Based on this longstanding interpretation and the legislature’s acceptance of it, the state high court affirmed, confirming that workers’ comp benefits should be awarded on the basis of loss-of-use ratings prior to corrective replacement surgery.

“This decision protects well-established workers’ rights in the face of a challenge,” said Vienna, Va., attorney David Falcon, who authored an amicus brief filed by the Virginia Trial Lawyers Association in support of Richardson. “For nearly 20 years, it was established that an impairment should be assessed before surgery, and I’m pleased that injured workers in Virginia will continue to receive the benefit of that standard.”

“I believe the employer chose to pursue this case because it felt the 74% loss-of-use rating was high and would support its position—rejected at every level—that the benefits award was a windfall to my client,” said Centreville, Va., attorney James Swiger, who represents Richardson. “The Virginia Supreme Court typically hears only one or two workers’ comp cases per year, and the justices decided sua sponte to accept this appeal, which gave me pause. Throughout oral argument, I repeated that the state legislature’s inaction indicated its acquiescence to the commission’s interpretation, which the justices found persuasive. I also emphasized that the key issue before the commission was the damage to the claimant’s body—what I described as his God-given limbs. If someone loses a leg but can walk and run with a prosthetic limb, you don’t say there’s no loss of use. Regardless of what can be rehabilitated, the analysis stays on the injury suffered. That’s the true cost to the claimant, and that’s what this standard, now recognized by the Virginia Supreme Court, properly reflects.”

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