The Supreme Court of Virginia Again Reverses a Case Decided Against an Employer at Every Level Below
For many years, it has been assumed that if a claimant had one limb severely injured in an occupational injury, and a second limb severely injured as a compensable consequence, those two injured limbs could form the basis of a claim for permanent and total disability. The Supreme Court of Virginia disproved that assumption this week in Merck & Co., Inc. v. Vincent, Record No. 20022 (2021).
Vincent, a pharmaceutical sales representative for Merck & Co., Inc. (“Merck”) injured his neck and left upper extremity while making a sales call at a physician’s office. The Commission awarded the claimant with workers’ compensation benefits. He later fell down stairs at home and injured his left knee because of dizziness caused by the medication prescribed for treatment of his original injuries. The Commission awarded benefits for the left knee as a compensable consequence.
The claimant filed a permanent total disability claim under Virginia Code §65.2-503(C)(1) which states “compensation shall be awarded for permanent and total incapacity when there is [l]oss of both hands, both feet, both legs, both eyes, or any two thereof in the same accident.”
Merck asserted that the original injuries and the claimant’s left knee injury had not occurred in the “same accident” as the statute required. The Deputy Commissioner and Full Commission and the Court of Appeals all disagreed and awarded the claimant with permanent total disability benefits.
The Deputy Commissioner, the Full Commission and the Court of Appeals all reasoned that the compensable consequence doctrine allows subsequent injuries that are the natural consequence of the original injury to be compensated as if the compensable consequence had occurred in the original accident, which, in the Court’s view, met the standards found in the permanent total disability statute.
Merck appealed to the Supreme Court, which reversed, holding that the Court of Appeals erred by ruling that a compensable consequence is legally treated as if it occurred in the same accident as the original injury. The Supreme Court explained that the effect of the compensable consequence doctrine is not to treat two separate accidents as one accident but, to treat the injury suffered in the second accident as if it also occurred in the course of and arising out of the employee’s employment, even though it occurred at home or elsewhere.
The Court held that even though claimant’s subsequent injury was a compensable consequence, it did not naturally flow from a progression, deterioration, or aggravation of the injury sustained in the original accident. Thus, the compensable consequence was the result from a new and separate accident, not from a change in condition.
This opinion made a very important statement for a small, but costly variety of claims. We learned that a claimant may not base a claim for permanent and total disability on one limb injured in the original injury and another limb that was injured in a compensable consequence, even though the Commission and Court of Appeals have repeatedly ruled otherwise in the past.
More importantly, perhaps, we have seen that certain cases must be brought all the way to the Supreme Court before we can be sure that the law is “settled” on some issues. The Supreme Court has been willing – where it sees an error – to overturn a case that was decided the other way at every step of the litigation, from the Deputy Commissioner through the Court of Appeals.
Should you have any questions about the issues discussed here or other legal issues, please do not hesitate to contact the lawyers at Ford Richardson.
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