Supreme Court Affirms Permanency Ratings Given Before Implantation of a Prosthesis

WORKERS COMPENSATION CASE WATCH

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%.

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Court of Appeals Affirms Willful Misconduct Defense in Seat Belt Case

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In Mizelle v. Holiday Ice, Inc., claimant got into the employer’s truck to make a delivery and started driving without putting his seat belt on.  He knew the law required him to wear a seat belt but admitted that he did not put it on and intended to put it on later during the trip.  Within five minutes of starting the trip he lost control of the truck and was injured when he was ejected from it during the crash.

The defendants, represented by Amanda Belliveau, prevailed at the Commission on a willful misconduct defense for the claimant’s failure to wear his seat belt.

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Sole Stockholder Not Employee Under VA Workers’ Compensation Act

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The claimant was injured at the auto glass company he owns.   The business had a workers’ compensation insurance policy but the insurer argued that the claimant was not an employee as defined by the Act so he was not subject to the policy’s coverage.

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Climbing Fall Not in the Course Of the Employment

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In Morres v. Earth Treks Crystal City Climb, the claimant worked at a recreational climbing gym.  The employer required employees to clock in before their shifts and prohibited employees from performing personal climbs while on the clock.  Before clocking in for her shift, the claimant did a warm-up climb, which she said was in preparation for performing rope maintenance.  She climbed with another co-worker, who was not scheduled to work that day.  During her warm-up climb, she took a practice fall.  She was injured in the fall.

The Deputy Commissioner found that the claimant was engaged in personal, recreational rock-climbing and was not in the course of her employment when the injury occurred.  On Review, the full Commission agreed, stating “…we do not find whatever ephemeral benefit the employer might receive from the claimant sharpening her climbing skills sufficient to bring

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Telehealth Treatment Did Not Affect Weight Given to Doctor's Opinion

WORKERS COMPENSATION CASE WATCH

On January 6, 2020, the Commission briefly addressed the issue of telemedicine in the treating physician relationship.  In Carter v. Mondelez International, the claimant was injured in a motor vehicle accident and was treating with a psychologist for PTSD

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Limousine Driver’s Accident Did Not “Arise Out Of” the Employment

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In Sorour v. Avalon Transportation, the claimant, a limousine driver, was injured in a single vehicle accident. At his supervisor’s request, the claimant was driving to the company’s office.  As he exited the highway he hit the guardrail on the exit ramp at a low speed, causing his injuries.

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No Obvious Sudden Mechanical or Structural Change

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In a November 19, 2019 Review, the Full Commission held in Bayne v. Horizon Behavioral Health that the claimant did not establish a mechanical change as a result of her accident, and therefore, did not establish a compensable injury. 

The claimant, a clinical mental health examiner, alleged an injury to her low back as a result of an eight-year old child charging into her ten to fifteen times, causing her back to strike a horizontal door handle.  The claimant had a history of four lumbar surgeries prior to this incident.  The claimant testified that she felt a sharp increase in pain as a result of this incident.  In affirming the Deputy Commissioner’s denial, the Full Commission cited Dr. Vanichkachorn, who treated the claimant before and after the alleged work accident.  The doctor opined that there was no evidence of any structural or mechanical change in comparing diagnostic studies taken before versus after the incident.  He opined

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Claimant Refuses to Attend FCE, Commission Denies Employer’s Application for Hearing

 

Workers' Compensation Case Watch

In Manion v. Northwestern Regional Adult Detention Ctr., the claimant needed a new physician because her doctor was no longer providing pain management. The employer asked a nurse case manager to find a new doctor for the claimant and to obtain a Functional Capacity Evaluation (“FCE”) from the physician. The nurse got an FCE referral from the new doctor and scheduled the appointment. She told the claimant about the appointment in person and left her several message about it. The claimant said she would not attend and cancelled the FCE.                                                                                                                                   

The defendant filed an Employer’s Application for Hearing alleging refusal of medical treatment because the claimant did not go to the FCE. The Deputy Commissioner denied the Application because the scheduled FCE was not medically necessary treatment. On review, the Full Commission cited the longstanding principal that the claimant’s medical treatment is directed by the treating physician and not the defendants. They noted that a

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Chandler Test Must be Applied to Requests for Spousal Care

 

Workers' Compensation Case Watch

In Ross v. Cumberland Hospital, the claimant sustained a severe brain injury. Her doctor said it was medically necessary that she have a home health aide or family member oversight to assist her with activities of daily living and monitor safety concerns. The claimant filed a claim asking that her spouse be paid to provide home health care to her.

The Commission found that spousal care should be authorized. In reaching that conclusion,

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Commission Determines “Out of Work” Note is a “Light Duty” Note

 

Workers' Compensation Case Watch

In Umana v. Clark Construction Group, the claimant was injured in a work accident.  The claimant saw a doctor for his work-related injuries.  In his report, the doctor outlined the claimant’s light duty restrictions but also said “there is no light duty work available, so he remains unable to work at this time.”  In his office notes each month, the doctor repeated that because there was no light duty available, the claimant remained unable to work.  The Deputy Commissioner found that the claimant was totally disabled during those periods.

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