Workers Comp Payments Forever? Yes, If Disability is Permanent AND Total
Workers’ Compensation weekly payments under Virginia end after 500 weeks.
It does not matter if these payments are for only partial wage loss, permanent impairment, or even amputation. However weekly payments from the workers’ compensation insurance company are paid, the 500-week limit is an artificial ceiling that really hurts younger, injured workers and the families who have lost loved ones in industrial accidents.
However, there is an exception to this 500-week limit on Workers’ Comp payments. If an injured worker loses 2 eyes, 2 arms, 2 feet, 2 hands, etc. or suffers a brain injury that is so severe that they cannot do any gainful employment, then they may be able to receive weekly compensation payments for life. The arms or legs do not need to be completely amputated. If the loss is so significant as to render the arm or leg unusable in employment, then the injured worker may still be able to win lifetime workers’ comp payments.
Attorney Doug Landau has tried a case where the injured worker got paid his 500 weeks of comp, and then sought lifetime benefits, but with very low permanency ratings. The Workers’ Comp Commission ruled that 5% Prominent Partial Disability (PPD) ratings to each leg as the result of a compensable low back injury would be insufficient to trigger Permanent Total Disability (PTD) and lifetime payments. Lawyer Landau was nevertheless eventually able to settle the claim for over $300,000 after the appeals process rain its course. A recent Virginia Court of Appeals case shed some more light on what the judges are looking for when there has not been an amputation of a limb and the permanency ratings are low percentages.
In a case where the employee worked for the Washington Metropolitan Area Transit Authority (WMATA), the important issues for these Permanent Total Disability (PTD) were examined in detail. The claimant was injured while helping a wheelchair passenger on to a WMATA bus. The Virginia Workers’ Compensation Commission (VWC) found that the workplace accident was compensable and approved a Temporary Total Disability (TTD) Award for about a 6-week period and awarded lifetime medical benefits for reasonable, necessary, related and referred treatment. About 11 years later, the VWC informed the disabled worker in January 2019 that her benefits had ended because she received the 500-week maximum under Virginia law. It’s like the “Dear John” letter from hell! The Abrams Landau workers comp team has seen these letter before, especially in all of the 9-11 families’ cases that Landau won. But they do not seem fair or legal. Because of his strong feelings about the unfairness of this workers’ compensation law, Landau has taught lawyers from all over Virginia on how to win cases for lifetime Permanent Total Disability payments at Continuing Legal Education (CLE) programs.
In the recent WMATA case, both of the claimant’s doctors indicated on a questionnaire that her lawyer had prepared that she was unable to use her legs for “meaningful, gainful employment.” Both doctors indicated her leg impairments were 25%. There is no “magic number” for permanency in order to qualify for Permanent Total Disability, but many judges expect the rating to be significant. The injured WMATA employee filed a claim for Permanent Total Disability (PTD) benefits based on loss of use of both legs, based on her two doctors’ questionnaire responses on the paperwork prepared by her lawyer. WMATA offered a medical evaluation from a well known “insurance Medical Examiner.” This “request flyer” came to the conclusion “that her pain was caused by ‘obesity and degenerative disease’ as she had a ‘stated weight [of] 325 lbs. Unsurprisingly, the Insurance Medical Examiner found 0% impairment in both legs ‘with respect to the date of injury.'”
The Deputy Commissioner (the Virginia Workers’ Compensation trial-level judge) heard the witness’s testimony, reviewed the evidence and awarded the injured worker Permanent Total Disability benefits based on loss of use of both legs. The Deputy Commissioner also awarded her Permanent Partial Disability benefits for 87.5 weeks. WMATA appealed to the Full Commission, which reversed the Deputy Commissioner’s awards. In other words, the three Full Commissioners in Richmond reversed and took away the trial-level decision in favor of the injured worker. The disabled WMATA employee then appealed to the next level, the Virginia Court of Appeals.
“Despite the questionnaire answers, the Commission determined that ‘there is insufficient explanation to justify reliance on the ratings by the employee’s doctors for the claimant’s lower extremities.’ The Virginia Workers’ Compensation Commission found that the claimant’s first doctor’s first specific diagnosis of right leg radiculopathy appeared in his questionnaire response.” The diagnosis and 25% right leg rating are inconsistent with his examination notes from the same day, in which he noted the claimant had no residual radicular symptoms. In addition, the Commission found no contemporaneous medical diagnosis by the claimant’s second doctor in any examination notes at the time that she filled out the questionnaire that confirms her opinions on the questionnaire regarding the disabled employee’s right leg.While the worker complained of ‘low back’ pain and bilateral leg’ pain to the doctor previously, the physician’s next evaluation of her, lists only ‘low back’ pain as the ‘chief complaint’ and makes no mention of a disability in the right leg. This evidentiary picture presented problems for the judges on appeal.
Virginia Code section § 65.2-518 caps total workers compensation payable at 500 weeks, subject to certain exceptions. The only exception to the 500-week maximum limit mandated under the statute that could apply to this WMATA is the exception for Permanent and Total Disability (“PTD”) under Code § 65.2-503(C). The Virginia Court of Appeals found that the Full Commission correctly found that the claimant did not meet her burden under Code § 65.2-503(C) of proving permanent total disability for loss of use of her 2 legs. The appeals court found credible evidence supported the Workers’ Compensation Commission’s determination that this claimant did not suffer “the permanent loss of use of 2 body parts,” which is required for an award of Permanent Total Disability benefits under Virginia law. The case is Roane v. Washington Metropolitan Area Transit Authority, Record No. 0450-20-4, Oct. 27, 2020. CAV (Beales) from the Virginia Workers’ Compensation Commission. Landau notes that if the claimant’s doctors’ records had more nearly aligned with their responses on the questionnaire, and the permanency ratings had been a bit higher as the result of the damage to her spine, the injured worker would have had a different outcome on appeal.
If you or someone you know was severely injured due to no fault of your own, please give us a call (703-796-9555) or email us at Abrams Landau, Ltd.