Supreme Court Affirms Permanency Ratings Given Before Implantation of a Prosthesis

Workers Compensation Case Watch Image_Hip Replacement_week of May 14 2020 (1)


In Loudoun County v. Richardson, the claimant injured his hip in a work accident.  The claimant’s treating physician performed a hip replacement surgery and then gave the claimant an 11% rating for loss of use.  Later, the treating physician was asked to calculate the claimant’s level of impairment before the hip replacement surgery, which the doctor determined was 74%.

The Deputy Commissioner awarded permanent partial disability benefits, concluding that the proper measure for loss of use was the rating made before the hip replacement surgery.   On appeal, the Full Commission affirmed, holding that determining the loss-of-use rating before a surgery that implants a prosthesis was the correct standard. Then the Court of Appeals affirmed the Full Commission’s decision.

Finally, the employer appealed to the Supreme Court of Virginia.  The Supreme Court framed the issue as one of statutory interpretation and recited the history and development of the Court of Appeals’ loss-of-use determinations under Va. Code Sec. 65.2-503. The Supreme Court affirmed stating that “Awarding compensation based on a pre-surgery loss-of-use rating recognized that a work-related injury has permanently deprived the claimant of natural functionality.  Although the procedure to implant a prosthetic hip joint is commonly called a total hip ‘replacement,’ the natural joint’s function and ability to heal is irreplaceable.” 

Justice Kelsey wrote a lengthy dissenting opinion which was joined by Justice Powell.  The dissent stated that under Virginia law, an impairment rating must be determined after the claimant reaches maximum medical improvement and that the claimant reached maximum medical improvement as a result of the hip replacement surgery.  After recuperating from that surgery, the claimant suffered only an 11% permanent loss of use of his leg.   The dissent said that there was no basis in the workers’ compensation act, or any interpretation of it by the Court, for a prosthetic device exception to the maximum medical improvement doctrine.

Read the previous edition of Workers' Compensation Case Watch:

Court of Appeals Affirms Willful Misconduct Defense in Seat Belt Case

Thumbnail_300x300_Jessica Trivizas

Jessica Hacker Trivizas is a litigator who focuses her practice on workers’ compensation, defending employers and carriers at the trial and appellate levels. She works with insurance carriers, third-party administrators, and self-insureds. Jessica worked on some of the largest settlements in the country, including the historic NFL Concussion Settlement Program, the BP Oil Spill settlement, and the Reglan/MCP Settlement Program. Her background on these mass claims resolution programs gives her unique insight into the work of claims adjusters.