By: Amanda Tapscott Belliveau, Esq.
Claimants can be entitled to permanent partial disability benefits (“PPD”) in Virginia to compensate for an amputation, scarring, or functional loss of use of a scheduled body part. The scheduled body parts and compensation periods assigned to each scheduled body part are outlined by Virginia §65.2-503.
In Virginia, physicians use the AMA Guidelines to determine impairment ratings. The 4th Edition is the most commonly used edition of the Guidelines, but Virginia does not require any one specific edition of the AMA Guidelines over the others.
When are claimants eligible for PPD?
A claimant must be at maximum medical improvement before an impairment rating will be considered valid. A mere statement by the doctor that the claimant has reached MMI may not be enough if the record suggests that MMI has not actually been achieved. A claimant has reached maximum medical improvement where no reasonable expectation exists that he will obtain further functional improvement from medical treatment. See Billings v. King Elec., Inc., VWC File No. 157-39-38 (Oct. 24, 1995).
In a claim in which a medical only award has been entered, but no indemnity award has ever been entered, the statute of limitations for filing a claim for permanent partial disability is three years from the date of injury. In a claim in which an indemnity award has been entered, the statute of limitations for filing a claim for permanent partial disability is three years from the date indemnity was last paid pursuant to an indemnity award (§65.2-708). Please note that an award of PPD can restart the statute of limitations for other wage loss benefits, allowing the claimant to claim a change in condition to seek additional periods of temporary total or temporary partial disability benefits.
A claimant is not eligible to receive permanent partial disability benefits while also receiving temporary total disability benefits. However, a claimant can simultaneously receive temporary partial disability benefits and permanent partial disability benefits. In a claim that does not qualify for permanent and total incapacity, a 500 week cap applies to all indemnity benefits received – as such, if, for example, the claimant has already received 500 weeks of temporary total disability benefits, the claimant is not eligible to receive PPD benefits.
Adjuster Tips for PPD in Virginia
The loss of more than one phalanx of a finger or a toe is deemed the loss of the entire finger or toe (100% loss).
The rating for scarring is determined by the Deputy Commissioner, not by a doctor-assigned rating. A claimant is not entitled to impairment for scarring if they also receive a rating/compensation for functional loss of use or amputation of that same body part.
Ratings cannot be “stacked” in Virginia. For example, a claimant is not entitled to compensation for a rating to the right index finger plus the right hand plus the right arm for a right finger injury.
The employer/carrier is not responsible for paying for a medical appointment if the sole purpose of the appointment is to obtain a rating.
If a claimant seeks a rating from a non-treating physician, be suspicious of the accuracy of the rating. In that situation, it is often a good idea to send the claimant to the treating physician for the treating physician to do a rating, or to an IME for a rating if the treating physician is unable to do the rating.
When the Commission is presented with competing ratings, the Deputy Commissioner has the discretion to weigh the evidence. For example, the Deputy Commissioner may select one rating over the other, or the Deputy Commissioner may choose to average the two ratings.
Virginia is not an “MMI state.” Though a claimant may be declared to be at MMI, in Virginia this does not mean that he does not require further medical treatment for his work accident. For further consideration, because a PPD award can reopen the statute of limitations for additional claims for indemnity, it may not be in the best interests of the employer/carrier to encourage a rating.
In the News
- New Benefit Calculator- The Virginia Workers’ Compensation Commission launched a new benefit calculator. You will no longer need to download and install an application on your desktop and you will no longer need to download annual updates. All users will be see the exact same application, eliminating the possibility of calculation differences.
- Proposed Vocational Rehab Guidelines now available on the VWC website. The Commission has proposed all the changes recommended by the rehab professionals and defense attorneys that were on the committee and are accepting comments. Email Comments to VWC on Vocational Rehab Guidelines here.
