eNotes: Workers’ Compensation – January 2025 – Virginia

SIGNIFICANT CASE SUMMARIES

Virginia Case Summary

Springfield Pest, et al. v. Scott Peterman
Court of Appeals of Virginia
2024 W. Va. App.

Decided: Nov. 26, 2023

When awarding permanent partial disability benefits, the Workers’ Compensation Commission may use a claimant’s post-surgery impairment rating where the claimant’s condition worsens following a corrective surgery.

Background

On June 15, 2017, Scott Peterman injured his right knee while working as an operations manager at Springfield Pest. In 2019, Peterman filed a claim for permanent partial disability benefits for loss of use of his right knee and was awarded 8.75% permanent partial disability benefits for 15.31 weeks. Then, in 2021, Peterman underwent a total right knee replacement surgery but continued to report knee problems following the surgery. Peterman sought an independent medical evaluation, which found that his right knee was now 43% impaired, attributable entirely to Peterman’s workplace injury. In December 2022, Peterman sought additional permanent partial disability benefits. Springfield Pest requested a second independent medical evaluation, which determined that Peterman’s right knee was 37% impaired, but only 8.75% of that impairment was attributable to his workplace injury.

At an evidentiary hearing, the deputy commissioner averaged the two impairment ratings and increased Peterman’s permanent disability benefits, finding that he suffered a 21.5% loss of use of his right leg. Springfield Pest appealed, arguing that the disability rating should not have been calculated after Peterman’s total right knee replacement surgery because the Virgina Workers’ Compensation Act requires the permanent loss of use of a joint to be calculated before a joint replacement surgery in permanent partial disability claims. Springfield Pest also asserted that there was insufficient evidence to support a finding of increased impairment after Peterman’s knee replacement surgery.

Holding

The Court held that under Virginia Workers’ Compensation Act § 65.2-503, an impairment rating does not need to be measured before joint replacement surgery. Virginia courts have long held that to become eligible for permanent partial disability, it must appear both that the partial incapacity is permanent and that the injury has reached maximum medical improvement. In past cases, the Court has declined to use an impairment rating following a joint replacement surgery, but those holdings did not expressly limit the Commission to only considering a pre-surgery loss-of-use rating for permanent partial disability benefits. The Court clarified that although a disability benefits award can be based on pre-surgery loss-of-use calculations, where a claimant’s condition worsens following a corrective surgery, the statute necessitates a different calculation to effectuate § 65.2-503’s remedial purpose. The Court asserted that the Virginia Workers’ Compensation Commission has consistently used a post-surgery impairment rating in situations similar to Peterman’s. Here, the Court ultimately held that where a claimant’s impairment worsens following a corrective surgery, the Commission is correct in using the post-surgery impairment rating when awarding permanent partial disability benefits under § 65.2-503. With regard to the evidence at issue, the Court reiterated that it is bound by the Workers’ Compensation Commission’s factual findings, so long as there was credible evidence presented such that a reasonable mind could conclude the fact was proved, even where there is evidence in the record that would support a contrary finding. Here, the Court found that the Commission properly considered credible evidence and made permissible factual findings regarding Peterman’s worsened condition in awarding him greater disability benefits.

Takeaway

The Workers’ Compensation Commission may use a claimant’s post-surgery impairment rating where the claimant’s condition worsens following a corrective surgery when awarding permanent partial disability benefits.

Questions about this case can be directed to Amanda Finney at (571) 470-0394 or afinney@tthlaw.com.