eNotes: Workers’ Compensation – February 2023 – Virginia

SIGNIFICANT CASE SUMMARIES

Virginia Case Summary

Miller v. DBHDS / VA Center for Behavioral Rehabilitation
Virginia Workers’ Compensation Commission
VA00000134818

Decided January 18, 2022

A treating physician offering “to do a PPD rating at the request of the work comp carrier,” by itself, is insufficient to establish disability within 36 months.

Background

Claimant sustained a right wrist and shoulder injury in 2009. She filed a timely claim in 2012 seeking permanent partial disability benefits. Claimant provided an office note from the treating physician – within the 3-year statute of limitations – noting that he would “do a PPD rating at the request of the work comp carrier.” However, she did not seek a rating until 2021, when this physician gave her a rating of 15% disability to her arm.

The Deputy Commissioner held that Claimant did not meet her burden of proving disability within the first three years. On appeal, Claimant argued that she proved she suffered disability within three years of her accident. Her primary piece of evidence was that the treating physician “offered to do a PPD rating, which proved that evidence suffered at least some permanent impairment at that time.

Holding

The Full Commission agreed, finding that Claimant did not provide proof of permanent impairment within three years. Even though the treating physician offered to do a PPD rating, the mere offer was not sufficient to show disability. The Commission found that if necessary, the physician could have ordered one. It would also be just as likely that the doctor would have opined that no rating was proper, and therefore, this was not proof of disability. Because the subsequent rating came 11 years later, the statute of limitations barred the PPD claim.

The majority opinion drew a concurrence from Commissioner Marshall to clarify the situations in which the above fact pattern would nevertheless be compensable. Claimant called an independent expert who testified “there was the existing potential for permanent impairment.” If the expert had even testified that there was any disability within the period, which is the proper standard, Commissioner Marshall would have likely found for Claimant.

Takeaway

Even when Claimant has issued a protective filing for PPD benefits, and even when Claimant has seemingly proven disability, always be on the lookout for cases that can be denied on the basis that Claimant cannot prove disability within three years.

Questions about this case can be directed to Mike Bliley, Esquire at 571-464-0435 or mbliley@tthlaw.com.