Virginia Court: Removal of Ankle Prosthesis, Without its Replacement, Does Not Trigger Reopening Statute

Recognizing that no matter how competent and reasonable a commission or board’s determination of a claimant’s medical condition and level of disability might be at the time of a hearing, either or both might later change, all states provide some sort of procedure for reopening and modifying awards [see Larson’s Workers’ Compensation Law, § 131.01 et seq.]. While a minority of jurisdictions allow reopening at virtually any time, most are like Virginia, which places a time limit upon the right to reopen the claim. With one exception that isn’t relevant to our discussion here, Virginia requires any change of condition request to be made within 24 months of the last day for which compensation was paid, or twenty four months from the date that the claimant undergoes any surgical procedure “to repair or replace a prosthesis or orthosis” [Va. Code § 65.2-708, emphasis added].

In a recent case, Saffert v. Fairfax County School Bd., 2012 Va. App. LEXIS 11 (Jan. 17, 2012), the Court of Appeals of Virginia held that the removal of a prosthesis from claimant’s ankle, without its replacement, was insufficient to reset the reopening period allowed under Va. Code § 65.2-708. Accordingly, claimant’s change of condition application was untimely. 

Claimant, an elementary school teacher, suffered a compensable injury on September 18, 2002, when she stepped in a hole on the school playground and fractured her ankle. She was awarded lifetime medical benefits and wage loss benefits that ended March 11, 2005. On June 23, 2005, she underwent a total ankle replacement surgery, during which a titanium prosthesis was placed in her ankle area. It was designed so as to simulate natural movement.

Some years later, it was determined that the total ankle replacement had failed. Her surgeon recommended and performed an arthrodesis–a fusing of the ankle–to provide stability and relieve pain. During the surgery, the titanium prosthesis was removed. No new prosthesis, however, was inserted in its place.

Seven months after the ankle fusion surgery, claimant filed a change-in-condition application. The employer contended it was untimely since it had been filed more than 24 months after the original ankle replacement surgery. Claimant contended her application was timely, that it was well within 24 months of the fusion surgery that had removed her prosthesis. Following a hearing, the deputy commissioner found that the prosthesis was removed, but not replaced, and that her application was not timely. A majority of the commissioners agreed with the deputy and affirmed.

Citing an edition of Webster’s Dictionary, the court of appeals indicated that while the prosthesis had certainly been removed, it had not been replaced, there to qualify for a replacement, there would have to have been something inserted in the stead of the original prosthesis. The court found important the determination by the Commission that the original purpose of the prosthesis was to simulate normal movement of the ankle, whereas the purpose of the fusion procedure was just the opposite–to prevent movement. Credible evidence supported the Commission’s findings and they would not be disturbed.