By: Amanda Tapscott Belliveau
The Court of Appeals recently addressed the issue of impairment ratings as they relate to total joint replacements in Loudoun Co. v. Richardson, Record No. 1533-18-4 (April 16, 2019). The claimant sustained an injury to his hip, and the treating physician assigned a 74% loss of use rating to his left leg based upon his impairment prior to undergoing a hip replacement. The Court of Appeals rejected the employer’s argument that the appropriate measure of loss is the claimant’s impairment after his hip replacement, as the implanted prosthetic enabled him to achieve maximum medical improvement. The Court of Appeals found that the loss of use is measured by a claimant’s impairment at the time of the necessary implantation of the corrective device. The Court of Appeals found that nothing in the Act indicates that the loss of use to a leg or other extremity should be measured with the benefit derived from the implantation of a mechanical device. The Court of Appeals also rejected the employer’s argument that because the claimant injured his left hip and not his left leg, he is not eligible to recover benefits from impairment to the leg. The Court notes that it has interpreted Va. Code § 65.2-503 to allow compensation for work injury that manifests in the listed body part (for example, impairment to the leg when a compensable back injury causes radicular complaints that result in loss of use of the leg). The Court found that the medical evidence supports the Commission’s finding that the claimant’s hip injury manifested in a functional loss of use to his leg.
Practice Tips
In order to be entitled to impairment benefits in Virginia, a workers' compensation claimant must first be found to have reached maximum medical improvement. In cases involving prosthetics, it is common for the treating physician to opine that the claimant has reached maximum medical improvement in the event that he does not undergo surgery to insert the prosthetic. This has been found to be adequate in establishing maximum medical improvement for the purpose of an impairment rating in cases of prosthetic devices. However, for surgeries that do not involve prosthetic devices, it is proper to take into account any improvement in the claimant’s condition as a result of the surgery when assigning an appropriate impairment rating.
Amanda Tapscott Belliveau, Director. Amanda frequently lectures on advanced topics in Virginia workers’ compensation. In addition to advising clients on the defense of potential claims, Amanda also counsels employers on strategies for the prevention of workplace accidents. She has served as both the Chair and Vice Chair of the workers’ compensation section of the Virginia Association of Defense Attorneys and has been repeatedly named a Rising Star by Super Lawyers. Email Amanda.
