Virginia: Divided Supreme Court Says Impairment to be Determined Before, Not After, Hip Surgery

An injured employee’s functional loss of use under Va. Code Ann. § 65.2-503, was appropriately computed by measuring the extent of the employee's impairment before undergoing hip replacement surgery, not after the surgery, held a divided Supreme Court of Virginia. The majority agreed with the Commission that, based on the opinion offered by the employee's physician, MMI had been reached before the surgery. According to that opinion, the employee had suffered a 74 percent loss of use. The surgeon acknowledged, however, that if one were to rate the loss of use after the surgery, it would have only been 11 percent. Citing Larson's Workers' Compensation Law, § 80.04, the dissenting justice argued that the employee reached MMI after the surgery. There was no logic supporting the majority's opinion, said the justice.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Loudoun County v. Richardson, 70 Va . App. 169, 826 S.E.2d 326 (2020)

See generally Larson’s Workers’ Compensation Law, § 80.04.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law

For a more detailed discussion of the case, see

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