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Failure to account for total knee replacement leads to award reversal
In Virginia, if an employee has a permanent disability prior to the work accident, she is entitled to compensation only for the degree of incapacity which would have resulted from the accident if the earlier disability or injury had not existed.
Case name: Fairfax County School Board v. Martin-Elberhi, No. 0981-09-4 (Va. Ct. App. 01/12/10). Ruling: The Virginia Court of Appeals reversed and remanded an award of permanent partial loss benefits, holding that both the Workers' Compensation Commission and the treating physician failed to distinguish between the worker's preexisting condition and her work-related injury in assigning an impairment rating.
Summary: A worker received a total knee replacement from a nonwork-related medical condition. Later, she fell at work, injuring her reconstructed knee. Without differentiating between her preexisting condition and the work-related aggravation, her treating physician assigned her a 37 percent lower left extremity impairment rating. The commission assigned her permanent partial loss benefits based on this rating. The Court of Appeals agreed with the employer that the award was erroneous. The worker argued that the commission implicitly concluded that the present impairment rating was caused solely by the aggravation injury. The court rejected her argument, reasoning that if that were true, it would also mean the commission determined the knee replacement caused no impairment at all. The court pointed out that an employee can recover for the degree of impairment caused by aggravation but not for any preexisting impairment unrelated to the work accident. Any other conclusion would render the current employer liable for a preexisting impairment that arose in other employment or in a nonwork-related accident. The court noted that the worker's argument that the commission implicitly accounted for the preexisting knee replacement also went against the long-standing practice of accepting the American Medical Association's impairment guidelines. Under the guidelines, a 37 percent lower extremity impairment rating is attributable solely to a successful total knee replacement. Read more at the WORKERSCOMP ForumTM homepage. February 11, 2010 Copyright 2010© LRP Publications |
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