Half of Virginia Claimant’s PPD Apportioned to Pre-Existing Condition

In a decision not designated for publication, a Virginia appellate court affirmed a finding of the state’s Workers’ Compensation Commission that an injured employee’s work-related accident had caused only a 25 percent permanent partial disability to her right lower extremity—her medical expert opined that following the accident, she had a total PPD rating of 50 percent to the right lower extremity—but that half of that PPD rating was due to a pre-existing condition [Clements v. Augusta Health & Safety First Ins. Co., 2021 Va. App. LEXIS 148 (Aug. 3, 2021)]. The court stressed that one year prior to the industrial accident, claimant’s physician had indicated claimant had degenerative joint disease of the right hip, that claimant had at that time described her discomfort as moderate to severe, and that the physician subsequently indicated that claimant would have needed a right hip replacement in the future even if her work-related accident had not occurred.

Background

On December 17, 2016, claimant injured her right hip when she slipped on ice and fell in a parking lot at work. At the time of the workplace injury, claimant had a pre-existing disease, i.e., degenerative joint disease of the right hip. Her treating physician saw her on November 3, 2015, a year before the workplace injury, noting that claimant’s “discomfort is currently moderate to severe in intensity and wavers and wanes in severity and is intermittent.” The physician also noted that claimant described catching, decreased range of motion, and stiffness in the morning or after prolonged rest. She had aggravated pain from activities of daily living, strenuous activity, work, and pivoting to change direction. On December 11, 2018, claimant underwent total hip replacement.

Commission Finds Pre-Existing Functional Loss

Claimant sought workers’ compensation benefits for her PPD, contending that her doctor had assigned a 50 percent PPD to her right lower extremity following her hip surgery. The deputy commissioner awarded PPD benefits based upon a 25 percent rating, finding that claimant had pre-existing functional loss to her right lower extremity. The Commission affirmed, finding claimant had a pre-existing functional loss, with one Commissioner dissenting. Claimant appealed, contending in pertinent part that under the facts established, her PPD could not be apportioned between the pre-existing disease and the workplace injury.

Apportionment

The appellate court said that claimant correctly cited Virginia Natural Gas, Inc. v. Tennessee, 50 Va. App. 270 (2007), for the legal principle that unless claimant experienced some permanent functional loss of use of her right leg before the compensable injury, the employer was not entitled to a credit for claimant’s pre-existing condition. Relying on earlier decisions, the court said that the factors to be considered in determining whether there was a permanent functional loss included:

• The treating physician’s opinion,
• Whether claimant was placed under permanent work restrictions,
• Whether claimant was ever diagnosed with a permanent impairment,
• Whether claimant was ever given a permanent impairment rating,
• Whether there were symptomatic limitations, or
• Whether the pre-existing disease affected claimant’s overall ability to use that body part.

The court acknowledged that the physician’s notes in November 2015 did not make any specific finding of permanent disability. Nor did the physician limit claimant’s work or physical activities. The court acknowledged further that there was no evidence that claimant was unable to work before her compensable injury. The court continued:

However, claimant’s pre-existing hip condition had a significant effect on her ability to function. She had a decreased range of motion, and she was stiff in the morning and after periods of rest. The pain was aggravated by activities of daily living, strenuous activity, and pivoting to change direction. Even before her compensable injury, claimant had difficulty in putting on socks and shoes and in getting in and out of cars. Further, she could not walk a significant distance without resting. Thus, her enjoyment of daily living was compromised by her pre-existing condition. Her movement was limited. Her daily routine was materially affected by her pre-existing disease. Her bending (putting on shoes and socks and getting in and out of cars) was a limitation caused by that disease [Opinion, p. 12].

In light of this, the court said the record supported the Commission’s finding of a pre-existing functional impairment. The court was bound by that finding on appeal. The Commission’s decision was affirmed.