No Permanent Total Disability Award for Injured Worker’s Post-Accident Fall Down Steps

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The Virginia Workers’ Comp law says that if you lose the use of 2 arms, 2 legs, 2 eyes, etc., in an on-the-job accident, you can get compensation benefits beyond the 500 weeks. In a case handled by a friend, a worker lost one eye in an industrial accident, and then his other eye several years later in another workplace incident. He was blind, having lost both eyes working for the same employer, but as it did not arise out of the same on the job accident, his claim for benefit (called “permanent total disability,” or PTD) beyond the 500-week limit was denied.

Virginia Comp law also has the doctrine of compensable consequences. This holds that if the original injury causes you another injury, like when you favor your right leg and tear a meniscus because your left leg hurts from your original workplace accident, then the treatment for the new problem is to be covered under what is called the doctrine of compensable consequences.

However, a disabled worker can only get ONE compensable consequence. In other words, under current Virginia law a claimant cannot get benefits for a compensable consequence of a compensable consequence (try saying that ten times fast).

Lawyer Doug Landau in front of a cherry picker outside the National Museum of African American History and Culture in Washington, D.C. According to the VA Supreme Court, an injured worker's subsequent injuries or conditions cannot be awarded permanent total disability under compensable consequences.
While the Virginia law of “compensable consequences” can help a disabled worker who has a subsequent injury or condition develop from the original workplace accident, it can be covered under workers comp.

So the Virginia Supreme Court opinion in Merck v. Vincent was of interest, because it addressed the question of whether an injured worker, who has a subsequent injury as the result of a compensable consequence, can get benefits beyond the 500-week limit. In other words, can a compensable consequence lead to an Award of Permanent Total Disability.

In the Merck case, the claimant injured his neck and left arm and hand in a compensable accident. While still treating for those injuries, he later fell down some steps at home and injured his left knee. He won his Permanent Total Disability claim, but then the case went up to the Supreme Court of Virginia.  The highest court in the Commonwealth agreed that “the compensable consequence doctrine allows compensation for a new injury even without a new accident; injuries under the compensable consequence doctrine are treated as if they occurred in the same accident.”

However, “the compensable consequence doctrine does not allow injuries suffered in two separate accidents to be treated as if they occurred in the same accident. Rather, the doctrine allows a new injury that is causally connected to an earlier, compensable injury to be ‘treated as if it occurred in the course of and arising out of the employee’s employment,’ quoting the case of Leonard v. Arnold, 218 Va. 210, 214 (1977).

The Supreme Court ruled that the lower court got it wrong by ruling that “under the compensable consequence doctrine, a second, separate injury is treated as if it occurred in the same accident as the original, compensable injury.” Justice Mims wrote, “The purpose and effect of the doctrine is not to treat two separate accidents as one accident but, as we said in Leonard, to treat the injury suffered in the second accident ‘as if it occurred in the course of and arising out of the employee’s employment.’”

So the Supreme Court overruled the Virginia Workers’ Compensation Commission’s Award of permanent total disability and we now know that a compensable consequence cannot be used to get benefits beyond 500 weeks.

If you or someone you know or care for has been injured as the result of an accident on the job or while working off site, and there are questions about what laws apply, e-mail or call us at once at ABRAMS LANDAU, Ltd. (703-796-9555).