Pre-surgery impairment determines function: Court

An injured firefighter’s 74% loss-of-use of his hip will be applied when factoring his permanent disability and not the functional improvement experienced following hip surgery that led to an 11% loss-of-use determination, the Supreme Court of Virginia ruled Thursday.

Michael Richardson, a former fire battalion chief in the Loudoun County Fire & Rescue Department, injured his hip during a firefighter evaluation exercise in 2013 while carrying a 40-pound hose up a flight of stairs, according to documents in Loudoun County, v. Michael Richardson, filed in Richmond.

Following initial medical treatment, Mr. Richardson, 55 years old at the time, was referred to orthopedic surgeon for arthroscopic surgery in 2014 that revealed labral tearing and cartilage floating in the hip joint. The doctor recommended hip replacement surgery, which took place in May 2015. Following that surgery, Avery determined that Richardson's loss-of-use rating was 11%, according to documents.

The rating used to calculate disability, down from 74% pre-surgery, became a subject for debate in court proceedings: considering whether in setting the amount of workers compensation benefits that state law requires that the extent of the worker's functional loss of use from a work-related injury be measured before or after implantation of a prosthetic device that improves the worker's functionality, according to documents.

The Deputy Workers Compensation Commissioner reduced Avery's initial 74% loss-of-use rating to 49% on the ground that certain arthritic conditions should not have been included in the rating. The full Commission unanimously affirmed, but modified the award to reflect the initial 74% loss-of-use rating.

The Commission held that using a loss-of-use rating determined before corrective surgery that implants a prosthetic device was the standard required by state law for Mr. Richardson's hip replacement and accepted the surgeon’s conclusion that Mr. Richardson was at maximum medical improvement before the surgery to implant the prosthetic hip, according to documents.

The state Court of Appeals in 2019 held that, “pursuant to the statute, loss of use is calculated before any surgery that improves functionality by use of a prosthetic device” and found that the commission’s award was proper because of a doctor’s determination that Mr. Richardson had achieved maximum medical improvement before the hip replacement surgery was supported by credible evidence, documents state.

The state Supreme Court, with two judges dissenting, agreed that the Court of Appeals did not err in its interpretation of state law. The dissenting judges wrote that Mr. Richardson “sustained a hip injury that, if left untreated, would have deprived him of 74% of the normal use of his left leg. But the injury was treated — quite successfully, in fact. Richardson's employer paid for a total hip replacement that restored 63% of the use of his leg, leaving him with an 11% permanent loss of use of his leg.”

“None of this matters, Mr. Richardson contends, because the Workers' Compensation Act requires us to hold that he continues to suffer a 74% permanent loss of use of his leg when clearly he does not,” the dissenting judges wrote.