In Virginia, employers take their employees as they find them, infirmities and all. What happens when someone has a pre-existing condition and they sustain a compensable injury? Is the employer responsible for any and all conditions that may arise and the subsequent disability? In these situations, the employers can look to the “two causes rule” to assist in their determination.
Employers are responsible for a compensable accident that aggravates, accelerates or exacerbates the pre-existing condition. The “two causes rule” provides that when a condition has two causes, one that is work related and one that it not, the employer is responsible for the end result of the accident. In other words, if the condition is caused, at least in part, by the compensable accident, the employer will generally be responsible for medical and/or wage loss that results.
With respect to medical conditions, the two cause rule often arises in cases in which a claimant has pre-existing arthritis. The claimant subsequently sustains a compensable injury by accident to the affected body part and the arthritis is “aggravated,” resulting in pain. In this situation, the condition has one cause that is not work related [the underlying arthritis] and one that is work related [the aggravation or pain]. In this scenario, with supporting medical documentation, if treatment of the pre-existing arthritis is necessary to treat the aggravation caused by the work accident, then the employer will be responsible for that treatment.
The two causes rule also applies to disability. If an employee is disabled in part due to a work-related condition and in part due to a non-work-related condition, the employer is responsible for the disability. To illustrate this point: if a claimant has a non-work related left shoulder injury, resulting in the inability to use his left arm, and then sustains a work-related injury to the right shoulder that leaves him unable to use the right arm, and these two conditions together result in him being totally disabled, the employer is responsible for that disability. However, there is an exception to the rule: an employer is generally not responsible for the effects of unrelated medical conditions that arise after the compensable injury. The Court of Appeals recently dealt with a case invoking the two cause rule in the unpublished case of Carrington v. Aquatic Co. & Ins. Co., 2018 Va. App. LEXIS 10. In this case, the claimant had pre-existing polycystic kidney disease. He subsequently sustained an injury to his left arm, which was unrelated to the kidney disease. After a short period of total disability for his arm, he returned to work with permanent work restrictions for his arm. After working for a period of time, the claimant was hospitalized for kidney failure, which was a complication of his underlying kidney disease. He subsequently filed for temporary total disability benefits arguing that his disability should fall under the two cause rule because he continued to have light duty restrictions from his arm injury as well as the disability from his kidney failure. The Court held that while he did have pre-existing kidney disease, the kidney failure did not arise until after his work injury and as such the employer was not responsible for the total disability as but for the kidney failure, he would still be working light duty for the employer.
In order to take advantage of this exception, employers need to be mindful of pre-existing conditions and conditions that arise after an accident and obtain confirmation from the treating physician as to what conditions are unrelated to the compensable work injury and when such unrelated conditions arose. The physician should also confirm what disability is attributable solely to the compensable work injury. After obtaining this information, the claimant can be offered a light duty position that is within the restrictions imposed solely for the compensable work injury and if refused, file an Employer’s Application for Hearing alleging an unjustified refusal of selective employment.