Virginia Worker’s Post-Injury Decision to be “Off-Work” Due to COVID-19 Sinks TTD Claim

A Virginia part-time employee, who was able to work without restrictions for three months, following a work-related injury, and who then was “taken off work” by his cardiologist because of concerns about the COVID19 pandemic, should not have been awarded temporary total disability benefits by Virginia’s Workers’ Compensation Commission, held a state appellate court [ Virginia Alcoholic Beverage Control Auth. v. Blot, 2022 Va. App. LEXIS 416 (Sept. 6, 2022)]. Quoting Larson’s Workers’ Compensation Law, the appellate court reasoned that loss of employment should not be deemed due to disability if a worker without the disability would lose employment or suffer a reduction in earnings under the same economic conditions.

Background

Blot worked as a part-time sales associate at a Virginia ABC store. He claimed that on December 15, 2019, he tripped over a throw rug behind a cash register and wrenched his knee. In January 2020, Blot sought treatment for his knee from an orthopedic surgeon. Blot’s pain was initially controlled by intermittent injections, but his symptoms worsened. An MRI in April 2020 revealed a horizontal meniscus tear. Because of restrictions on elective surgeries due to the COVID-19 pandemic, the surgeon told Blot that if the injections provided relief, knee surgery could be avoided.

On March 30, 2020, Blot’s cardiologist “took [him] out of work” over concerns surrounding the COVID-19 pandemic. Blot admitted that his decision to stop working was not related to his knee injury. On February 11, 2021, after receiving his COVID vaccine injections, Blot asked his surgeon for a note permitting him to return to work on light duty. The surgeon gave him such a note, but did not detail the restrictions Blot’s “light duty” should encompass.

That same day, Blot returned to his pre-injury sales associate position at the ABC store, but worked only six to eight hours per week because his supervisor had replaced him during his absence. In addition, the store had implemented changes to its system, requiring Blot to relearn all the equipment and procedures again. Between February 15, 2021 and April 30, 2021, Blot applied for 54 jobs, but none of his applications was successful.

Application for Benefits

Blot filed a claim for benefits seeking a lifetime medical award, temporary total disability benefits from March 30, 2020, through February 10, 2021, and temporary partial disability benefits from February 11, 2021, and continuing. After a hearing on the claim, the deputy commissioner found that Blot had suffered an injury by accident on December 15, 2019, and awarded him lifetime medical benefits. The deputy commissioner denied Blot’s request for TTD benefits between March 20, 2020, and February 10, 2021, finding that Blot had stopped working due to the COVID-19 pandemic, not his compensable injury. The deputy commissioner also denied Blot’s request for TPD benefits beginning February 11, 2021, finding that the reduction in Blot’s work hours was not related to his compensable injury but “to scheduling issues and the fact that [Blot] had to be retrained.” The deputy commissioner held that Blot began marketing his residual work capacity on February 15, 2021, but concluded that his “inability to work additional hours with” the ABC store was “not related to the work accident.”

Commission Reverses Deputy Commissioner in Part

On review, the Commission affirmed in part and reversed in part, finding that Blot had made a reasonable effort to secure suitable light work and that his inability to work additional hours was causally related to the work accident. Blot’s employer appealed.

Appellate Court Reverses

Initially, the appellate court observed that it in earlier cases it had held that it would be impermissible if a partially disabled worker who is laid off for reasons other than his or her work-related disability was entitled, subject only to a marketing requirement, to disability benefits during a period of unemployment. Such a result would transform the Workers’ Compensation Act to nothing more than another form of unemployment insurance.

The court said the record did not support the Commission’s conclusion that Blot’s wage loss was causally related to his partial incapacity. After Blot sustained his compensable injury in December 2019, he continued to work as a sales associate with no restrictions for approximately three months. Moreover, he unequivocally testified that his decision to stop working in March 2020 was not because of his injury; rather, his cardiologist instructed him to stop working because of concerns about COVID-19. Although Blot worked fewer hours each week, he himself testified that his reduced hours were attributable to scheduling issues and the need to be retrained, not his knee injury.

Quoting Larson’s Workers’ Compensation Law, § 84.04, the court reasoned that “[l]oss of employment should not be deemed due to disability if a worker without the disability would lose employment or suffer a reduction in earnings under the same economic conditions.” The court concluded that Blot’s unequivocal testimony affirmatively established that his wage loss was not caused by his partial incapacity, but to his decision to stop working during the pandemic. His attempt to reclaim his job nearly a year later was made more difficult, not because of his injury, but because he had been replaced and the employer had changed its systems. The Commission, therefore, was in error in awarding Blot TTD benefits beginning February 11, 2021.