Virginia Supreme Court Construes “Two-Cause” Rule for Total Disability Cases

Maneuvering the difficult space within which a worker’s preexisting condition intersects his or her work-related injury, the Supreme Court of Virginia recently affirmed a decision by the state’s Court of Appeals that had, in turn, affirmed a Commission ruling that an injured worker was not entitled to TD because his disability was caused by his kidney failure and not a work-related injury to his arm [Carrington v. Aquatic Co., 2019 Va. LEXIS 80 (July 18, 2019)]. Quoting Larson’s Workers’ Compensation Law (“Larson”), the Court acknowledged that where a work-related disability combines with a nonwork-related disability to prevent the claimant from working, the entire total disability is the responsibility of the employer under the “two-cause” rule. The Court found the rule did not apply in the instant situation, however.

Background

Carrington began working for the employer in 1992. At that time, he had a preexisting kidney disease that was not disabling. For many years thereafter, the disease required routine medical care, but did not affect his ability to work. In 2006, Carrington received a kidney transplant, but returned to work without restrictions after a recuperative period. In 2013, Carrington injured his left arm at work. The Commission awarded him medical benefits and temporary total-disability benefits for his arm injury. After surgery and a period of recuperation, he was cleared by his doctors to return to light-duty work in November 2013. At that time, the employer had full-time, light-duty work available for Carrington at his regular wages.

In October 2014, Carrington’s kidney condition deteriorated to the point that his doctors concluded he was totally disabled from performing any work. Carrington sought an award of containing TTD benefits.

Commission’s & Court of Appeals’ Findings

The Commission held that Carrington was not entitled to continuing TD benefits. It concluded that neither Carrington’s preexisting kidney disease nor his kidney failure in October 2014 had any connection to his employment. In addition, the Commission concluded that Carrington’s arm injury was connected to his employment, but it did not render him totally disabled as evidenced by the fact that after his arm surgery, Harrington was able to return to light-duty work at Aquatic. The sole cause of Carrington’s total disability, the Commission concluded, was his kidney failure that was unrelated to his employment. The Court of Appeals affirmed in an unpublished opinion. Carrington died in 2018, and his estate substituted itself as the appellant before the Supreme Court.

The “Two-Cause” Rule

Carrington did not argue with the fact that his kidney failure alone could not support a TTD award. Instead, he argued that the “two-cause” rule should apply. Under that rule, when a disability has two causes: one related to the employment and one unrelated, and thus, when the employment is a contributing factor to the disability, full benefits will be allowed [citing Bergmann v. L & W Drywall, 222 Va. 30, 32, 278 S.E.2d 801 (1981) (per curiam)].

The Supreme Court disagreed, observing the two-causes rule did not apply to cases involving two causes that resulted in dissimilar disabilities, as was the case here, when a partial disability caused by a work-related arm injury (resolved by the availability of suitable, light-duty employment) was followed by a total disability caused by non-work-related kidney failure.

Carrington’s estate countered that he indeed did suffer partial disability attributable to the work-related arm injury. That partial disability was coupled with his total disability attributable to the preexisting kidney disease. According to the estate, both conditions prevented Carrington from returning to his pre-injury duties. The Court disagreed, saying it did not matter that either or both of Carrington’s ailments kept him from returning to his pre-injury duties. What mattered was whether either injury (and, if so, which one) kept him from working at all — thus rendering him totally disabled.

The Court stressed that the undisputed facts resolved this question. Carrington’s work-related arm injury did not prevent him from returning to full-time work, albeit in a less physically demanding job. Carrington’s non-work-related kidney failure, however, rendered him unable to perform any job. Thus, the two-causes rule did not govern the case because there was only one cause of Carrington’s total disability: his non-work-related kidney failure. Quoting Larson, the Court observed:

There must be distinguished the situation in which the employee’s story begins with a preexisting condition, encounters next a compensable injury, followed by deterioration or collapse. If this further progression stems from the compensable injury rather than from the preexisting condition, it will be compensable. But if the deterioration is merely a resumption of the progression of the condition predating the industrial injury, further damage is not compensable [Larson, § 46.03[8]].

In as much as the two-cause rule did not apply to the case, the judgment of the Court of Appeals was affirmed.