Worker’s Compensation Windfall and Legal Malpractice Pitfall Whenever a Prosthetic Device is Used in Treatment.
Until the Virginia legislature acts, employees get a windfall under the current Worker’s Compensation law in Virginia – they get the benefit of medical treatment but if a prosthetic device is used the employer does not get any credit for the functioning improvement or event the cost of that medical treatment. In Loudoun County v Richardson (May 7, 2020), Richardson suffered a hip injury from a work-related accident. The employer paid for Richardson to obtain a hip replacement leaving him with an 11 percent loss-of-use rating. He filed a claim under § 65.2-503 for the permanent 11 percent loss-of-use and then realized that Virginia has a glitch in the current interpretation of the law that would enable him to have the employer pay for the surgery to improve his condition without any benefit to the employer on the resulting functional improvement to the employee. Counsel asked the physician, what would Richardson’s permanent loss have been without the hip replacement and received a 74 percent loss-of-use rating. The claim was amended and Richardson received an award for 74 percent loss-of-use rather than his actual 11 percent permanent loss-of-use, which was affirmed by the Virginia Supreme Court over the dissent of Justices Kelsey and Powell. Until the Virginia Supreme Court reverses itself or the legislature actually votes on a bill to remedy this matter, attorneys representing claimants that fail to take advantage of this current interpretation are at risk of malpractice. If a claimant suffers a severe broken arm, and the arm is reset with pins, plates and other prosthetics, the claimant’s counsel should seek and obtain a medical opinion asking the hypothetical question – “If the prosthetic pin, plate or other device was not used in the medical treatment what would the permanent loss-of-use have been?” According to Loudoun County v. Richardson that is the proper measure for determining an award of permanent loss-of-use.
NOTHING CONTAINED HEREIN SHALL BE DEEMED TO CREATE AN ATTORNEY CLIENT RELATIONSHIP. NOTHING HEREIN SHALL BE DEEMED TO BE LEGAL ADVICE TO YOUR PARTICULAR CIRCUMSTANCES! EVERY PERSON APPEARING OR FILING ANYTHING IN COURT MAY BE SUBJECT TO SANCTIONS UNDER VA CODE § 8.01-271.1
Thomas H. Roberts, Esq.
Thomas H. Roberts & Associates, PC
105 S 1st Street
Richmond, VA 23219