Virginia High Court Says Permanent Impairment Computed Before, Not After, Hip Replacement Surgery

In a decision that is likely to raise some eyebrows, a divided Supreme Court of Virginia, affirming an earlier decision by a lower appellate court, held that an injured employee’s functional loss of use under Va. Code Ann. § 65.2-503 was properly measured by the extent of his or her impairment before undergoing hip replacement surgery. The majority indicated the Legislature had recognized that an artificial joint replacement was an imperfect treatment for a compensable injury that often required subsequent revision surgeries and other treatment [Loudoun County v. Richardson, 2020 Va. LEXIS 40 (May 7, 2020)].

Background

Richardson, the fire battalion chief in the Loudoun County Fire & Rescue Department, sustained a left hip injury during a firefighter evaluation exercise in 2013. He was 55 years old at the time. Subsequent exploratory arthroscopic surgery revealed labral tearing and cartilage floating in the hip joint. His pain continued and his orthopedic surgeon recommended and performed hip replacement surgery in May 2015. Following that surgery, the surgeon determined Richardson’s loss-of-use rating was 11 percent.

In January 2017, the surgeon completed a report in response to a request to calculate Richardson’s level of impairment prior to the hip replacement surgery. The doctor determined that Richardson had reached MMI approximately three to four months after the July 15, 2014 arthroscopic surgery. He concluded that Richardson’s condition was permanent and would only have worsened without a total hip replacement. Based on his findings, the surgeon determined that Richard’s loss-of-use rating prior to the hip replacement surgery was 74 percent.

Workers’ Compensation Claim

Richardson initially filed a claim for workers’ compensation benefits based on 11 percent loss of use of his left leg, after the hip replacement surgery, but later amended the claim to reflect 74 percent loss of use prior to the implantation of the prosthesis. A Deputy Commissioner determined that Richardson was entitled to a PPD rating of 49 percent, based upon a finding that certain arthritic conditions should not have been included in the rating.

Commission’s Decision

The full Commission unanimously affirmed the Deputy Commissioner’s decision, but modified the award to reflect the initial 74 percent loss-of-use rating. The Commission held that using a loss-of-use rating determined before corrective surgery that implants a prosthesis was the standard required by Va. Code § 65.2-503. The Commission accepted the surgeon’s conclusion that Richardson was at MMI before the surgery to implant the prosthetic hip.

Court of Appeals Affirms

The County appealed the Commission’s decision to the Court of Appeals, which affirmed in a published opinion, Loudoun County v. Richardson, 70 Va. App. 169, 826 S.E.2d 326 (2019). The Court of Appeals held that, pursuant to the statute, loss of use is calculated before any surgery that improves functionality by use of a prosthetic device. It found that the Commission’s award was proper because the surgeon’s determination that Richardson had achieved maximum medical improvement before the hip replacement surgery was supported by credible evidence. The County appealed and the Supreme Court agreed to hear the case.

Supreme Court’s Majority Decision

Writing for the majority, Justice Mims initially acknowledged that before permanent partial or permanent total benefits were available under the relevant statutes, it must appear that the incapacity is permanent and that the injury has reach MMI. The justice added that Va. Code § 65.2-503(A) did not address whether loss of use was to be measured before or after the surgical implantation of a prosthetic joint.

Justice Mims pointed to earlier precedent in which the Court had held that under a predecessor statute, loss of use was measured based on the worker’s uncorrected vision, even though glasses improved his vision. Later, the Court of Appeals applied a similar rule in awarding benefits for total loss of use of an eye that had developed a traumatic cataract due to a workplace accident. The insertion of an intraocular lens implant significantly improved the worker’s vision, but that improved vision was not considered.

The justice noted that in a 2002 case, the Commission had applied the same reasoning to award benefits to a claimant based on his loss of use before knee replacement surgery. Justice Mims continued:

Awarding compensation based on a pre-surgery loss-of-use rating recognizes that a work-related injury has permanently deprived the claimant of natural functionality. Although the procedure to implant a prosthetic hip joint is commonly called a total hip “replacement,” the natural joint’s function and ability to heal is irreplaceable [Full Decision and Dissent, p. 9].

Citing medical literature, the justice observed that the hip replacement procedure came with the expectation that the prosthetic will eventually fail and require subsequent surgical revision. He indicated that the interpretation unanimously employed by the Commission and Court of Appeals acknowledged the irreplaceable loss of the claimant’s natural joint, the nonmonetary costs associated with the corrective surgery, and the permanent restrictions on the claimant’s activities resulting from the work-related injury.

Justice Mims concluded that the record contained factual findings regarding Richardson’s MMI that were supported by credible medical evidence. The surgeon here had examined Richardson before the hip replacement surgery, and based on that examination, concluded that Richardson had a 74 percent loss-of-use rating constituting maximum medical improvement prior to corrective surgery. The Commission accepted the surgeon’s determinations as “credible and reliable” based on his “extensive” treatment of Richardson. Because these factual findings are supported by credible evidence, Justice Mims indicated the majority of the Court had accepted them on appeal.

Dissenting Opinion

Justice Kelsey, joined by Justice Powell, dissented. Justice Kelsey observed that the AMA Guides to the Evaluation of Permanent Impairment (“the AMA Guides”) require the patient to reach MMI prior to the physician assessing the permanency of the patient’s impairments. The patient’s condition should be static and well stabilized. Moreover, MMI refers to a date from which further recovery (or deterioration) is not anticipated. The justice added:

To restate the obvious, the treating physician believed that Richardson will permanently suffer only an 11% loss of use of his leg as a result of his workplace accident. This conclusion cannot be correct, Richardson argues, because his temporary 74% impairment rating (measuring his condition from the time of his injury to the time of his successful hip replacement) supersedes his permanent 11% impairment rating (measuring his condition from the time of his recuperation from hip-replacement surgery into perpetuity).

Citing Larson’s Workers’ Compensation Law, § 80.04, Justice Kelsey stressed the important difference between Richardson’s hip replacement surgery and the situation in which an employee with an eye impairment is provided with a pair of eyeglasses that improve his vision. Giving a worker a pair of prescription eyeglasses could hardly constitute a maximum medical improvement, said the justice. The worker would immediately return to near total blindness as soon as he misplaced the glasses or accidentally dropped them on the floor.

Justice Kelsey continued that the majority reasoned that a hip-replacement surgery could not be deemed a maximum medical improvement any more than a pair of prescription glasses could. The justice could not “see” the logic of that argument. He continued with an exhaustive description of the legislative history surrounding Va. Code § 65.2-503. Moving back, however, to the core issue in the case, the justice ended his dissent with the following:

In sum, this case is far simpler than our point-counterpoint arguments might suggest. Under Virginia law, an impairment rating for permanent-partial-disability benefits must be determined after the claimant reaches maximum medical improvement. Richardson reached maximum medical improvement as a result of his hip-replacement surgery and, after recuperating from that surgery, suffered only an 11% permanent loss of use of his left leg. There is no basis in the Workers’ Compensation Act, or any interpretation of it by this Court, for a prosthetic-device exception to the maximum-medical-improvement doctrine [Full Decision and Dissent, p. 36].

Quick Comment

For what it’s worth, I think the dissent has the better argument here. If Richardson truly was at MMI before the hip replacement surgery, one would need to characterize it as merely palliative. Further, what was the purpose of the surgeon’s rendering an opinion that the impairment was 11 percent after the surgery. The surgeon (and the claimant) should not be allowed to have it both ways.