eNotes: Workers’ Compensation – February 2022 – Virginia

SIGNIFICANT CASE SUMMARIES

VA CASE SUMMARY

Schoenly v. Loudoun Stairs, Inc.
Virginia Workers’ Compensation Commission
VA00001453708

Decided: January 18, 2022

When a right knee replacement actually worsened the overall function of the knee, the permanency rating was judged after the replacement, fully disregarding a permanency rating taken before the replacement.

Background

Claimant suffered a meniscus tear when he fell off a ladder. Claimant’s own IME doctor assigned a permanency rating of 27% loss of use of the right leg. A defense IME assessed Claimant with a 2% impairment rating. Claimant then underwent knee replacement surgery, after which he reported increased pain and stiffness which made it difficult to walk. In response, Claimant’s IME doctor revised his impairment rating from 27% to 50%.

The Deputy Commissioner found that Claimant’s impairment was 50%, failing to even split with the Employer’s IME. Employer appealed, citing Loudoun Cty. v. Richardson, a case where a Claimant was given a 74% rating before a hip replacement. Even though the post-surgery rating dropped to 11%, the Commission nevertheless assigned a 74% PPD rating, since he reached MMI at 74%. Therefore, the Employer argued, Claimant’s 27% PPD rating should be honored.

Holding

The Full Commission affirmed, awarding a 50% PPD rating. The Commission found that the true nature of Claimant’s disability is reflected in the new rating, even though a portion of the disability was attributable to corrective surgery.

Takeaway

Corrective surgery can often be a lose-lose for the Employer. A worse PPD rating will increase exposure, but a better rating will not decrease exposure. If the Employer had sought an updated IME after the surgery as well, the two ratings may have at least been averaged.

Any questions regarding this case can be addressed to Mike Bliley, Esquire, at mbliley@tthlaw.com or (571) 464-0435.