Recent Opinion Finds Employers Responsible for Cost of FCE Impairment Rating

This Recent Opinion is a Departure

In its recent Opinion in Elliott v. Sam Green Vault Corp., JCN VA00001108316 (Oct. 5, 2021), the Commission departs from its prior rulings, with one Commissioner dissenting. 

It has been a longstanding position of the Commission that an employer and carrier are not responsible for the cost of an FCE when the sole purpose of the FCE is the assignment of an impairment rating on the basis that it does not constitute medical treatment pursuant to Va. Code §65.2-603. 

[See Thompkins v. DBHDS/E. State Hosp., JCN 2388388 (Feb. 19, 2014); Harris v. Cnty. of Henrico, JCN VA010-0242-5961 (June 22, 2011); Anderson v. Atl. Waste Disposal, VWC File No. 218-46-84 (Mar. 15, 2006); Morgan v. Proffitt’s, Inc., VWC File No. 180-18-10 (Dec. 28, 2005).]

The concept behind this was that the purpose of these visits was not for medical treatment, but only to support a claim for additional benefits under the Act. 

The Opinion Finds:

• To require a claimant to pay the cost associated with securing a rating offends the Act’s fundamental principle that the financial burden of the compensable injury should be borne by the employer. 

• The prior interpretation of “necessary medical attention” has been too narrow. The Commission cites the employer’s ability to terminate benefits for a refusal of medical treatment when a claimant has refused to attend a FCE as evidence that a FCE for an impairment rating should be considered to be medical treatment under the Act. As such, under this Opinion, the cost of a FCE for an impairment rating would now fall upon the employer.

Workers’ Compensation Practice Group at McCandlish Holton defends workers’ compensation claims in all areas of Virginia from initial investigation to the trial and appellate levels of litigation. 

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