Loudoun Cnty. v. Richardson
| Decision Date | 07 May 2020 |
| Docket Number | Record No. 190621 |
| Citation | 841 S.E.2d 629 |
| Parties | LOUDOUN COUNTY v. Michael RICHARDSON |
| Court | Virginia Supreme Court |
Justin R. Main (Siciliano, Ellis, Dyer & Boccarosse, on briefs), for appellant.
James E. Swiger, Centreville, for appellee.
Amicus Curiae: Virginia Trial Lawyers Association (W. David Falcon, Jr., Ackerman and Falcon, on brief), Vienna, in support of appellee.
OPINION BY JUSTICE WILLIAM C. MIMS
In this case, we consider whether in setting the amount of workers’ compensation benefits Code § 65.2-503 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.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
Michael Richardson is fire battalion chief in the Loudoun County Fire & Rescue Department. The injury at issue in this case occurred during a firefighter evaluation exercise on July 10, 2013 during which Richardson experienced a sharp pain in his left groin area while carrying a 40-pound hose up a flight of stairs. He was 55 years old at the time.
Following initial medical treatment, Richardson was referred to orthopedic surgeon Dr. Anthony Avery. Avery conducted exploratory arthroscopic surgery
on Richardson’s hip on July 15, 2014 that revealed labral tearing and cartilage floating in the hip joint. Although Richardson’s condition improved in the following weeks, he complained to Avery of severe pain in November 2014. Avery recommended hip replacement surgery, which took place in May 2015. Following that surgery, Avery determined that Richardson’s loss-of-use rating was 11 percent.
In January 2017, Avery completed a report in response to a request to calculate Richardson’s level of impairment prior to the hip replacement surgery, determining that Richardson had reached maximum medical improvement approximately three to four months after the July 15, 2014 arthroscopic surgery
. He concluded that Richardson’s condition was permanent and would only worsen without a total hip replacement. Based on his findings Avery determined that Richardson’s loss-of-use rating prior to the hip replacement surgery was 74 percent.
Richardson initially filed a claim for workers’ compensation benefits based on 11 percent loss of use of his left leg on December 21, 2016, after the hip replacement surgery, but amended the claim on February 9, 2017 to reflect 74 percent loss of use prior to the implantation of the prosthesis. A Deputy Commissioner awarded Richardson permanent partial disability benefits on September 8, 2017, concluding that the proper measure for loss of use was the rating made prior to the hip replacement surgery. The Deputy Commissioner reduced Avery’s initial 74 percent loss-of-use rating to 49 percent on the ground that certain arthritic conditions should not have been included in the rating. Richardson’s employer, Loudoun County, appealed to the full Commission, and Richardson filed a cross-appeal challenging the reduction in the loss-of-use rating.
The full Commission unanimously affirmed the Deputy Commissioner’s decision but modified the award to reflect the initial 74 percent loss-of-use rating. The Commission held that using a loss-of-use rating determined before corrective surgery that implants a prosthesis was the standard required by Code § 65.2-503 for Richardson’s hip replacement. It accepted Avery’s conclusion that Richardson was at maximum medical improvement before the surgery to implant the prosthetic hip.
The County appealed the Commission’s decision to the Court of Appeals, which affirmed in a published opinion, Loudoun County v. Richardson , 70 Va. App. 169, 826 S.E.2d 326 (2019). The Court of Appeals held that, pursuant to the statute, loss of use is calculated before any surgery that improves functionality by use of a prosthetic device. Id. at 178-79, 826 S.E.2d 326 . It found that the Commission’s award was proper because Avery’s determination that Richardson had achieved maximum medical improvement before the hip replacement surgery was supported by credible evidence. Id. at 180-81, 826 S.E.2d 326 .
We awarded Loudoun County this appeal.
II. ANALYSIS
Loudoun County assigns error to the Court of Appeal’s holding that Richardson’s functional loss of use under Code § 65.2-503 is measured by the extent of his impairment before undergoing hip replacement surgery.
A. History and Development of Loss-of-Use Determinations Under Code § 65.2-503
This case presents an issue of statutory interpretation. "Under well-established principles, an issue of statutory interpretation is a pure question of law which we review de novo." Conyers v. Martial Arts World of Richmond, Inc. , 273 Va. 96, 104, 639 S.E.2d 174 (2007) (quoting Crawford v. Haddock , 270 Va. 524, 528, 621 S.E.2d 127 (2005) ). "When the language of a statute is unambiguous, we are bound by the plain meaning of that language." Id.
Code § 65.2-503(A) directs that a claimant will receive "[c]ompensation for permanent partial and permanent total loss and disfigurement." Before benefits are available under the statute, "it must appear both that the partial incapacity is permanent and that the injury has reached maximum medical improvement." County of Spotsylvania v. Hart , 218 Va. 565, 568, 238 S.E.2d 813 (1977). The statutory language does not directly address whether loss of use is measured before or after the surgical implantation of a prosthetic joint.
We first confronted a similar issue in the 1956 case of Owen v. Chesapeake Corporation of Virginia , 198 Va. 440, 94 S.E.2d 462 (1956). In that case, we held that under the predecessor statute to Code § 65.2-503, loss of use was measured based on the worker’s uncorrected vision even though glasses improved his vision. Id. at 442, 94 S.E.2d 462 . Owen lost visual acuity due to an industrial accident and began to require glasses to perform his work. Id. Previously he had only needed them for off-duty activities. Id. The Commission awarded Owen disability benefits based on his vision measured without the use of glasses. Id. at 441–42, 94 S.E.2d 462 . On review, we upheld the Commission’s finding, concluding that Owen’s loss of use was measured "without recourse to the artificial aid" of glasses. Id. at 442, 94 S.E.2d 462 .
The Court of Appeals later applied the Owen rule in Creative Dimensions Group v. Hill , 16 Va. App. 439, 430 S.E.2d 718 (1993), a case involving an intraocular lens implant. The parties agreed that Hill "had perfect vision" prior to a workplace accident, which caused him to develop a traumatic cataract
in his right eye. Id. at 440, 430 S.E.2d 718 . Corrective surgery that replaced the natural lens of Hill’s eye with an intraocular lens implant significantly improved his vision. Id. at 441, 430 S.E.2d 718 . The Commission awarded Hill benefits for the total loss of use of his right eye based on his vision prior to the transplant surgery. Id. at 440–41, 430 S.E.2d 718 .
Hill’s employer appealed to the Court of Appeals, which held that awarding benefits based on the condition prior to corrective surgery was consistent with the General Assembly’s lack of action in response to Owen . Id. at 443–44, 430 S.E.2d 718 . The Court of Appeals further noted that the corrective surgery was an imperfect substitute for Hill’s natural vision and was accompanied by several risks. Hill , 16 Va. App. at 444–45, 430 S.E.2d 718 . It emphasized that a claimant’s benefit from a prosthetic device does not eliminate the fact of the bodily loss. Id. at 445, 430 S.E.2d 718 . The Court of Appeals recognized that even if medical technology advanced to the point that prosthetics were indistinguishable from a claimant’s natural condition and were without risk, the legislature rather than the judiciary is best positioned to change the law to reflect those advances. Id. at 444–45, 430 S.E.2d 718 .
In 2002, the Workers’ Compensation Commission applied Hill ’s reasoning to award benefits to a claimant based on his loss of use before knee replacement surgery. Rowe v. Dycom Indus., Inc. , VWC File No. 179-38-18 (Apr. 24, 2002). The issue facing the Commission in Rowe was the product of relatively new technology—joint replacement surgery—with no direct analog in the available precedent. The most similar line of cases was that of Hill , based on this Court’s decisions in Owen and Walsh Const. Co. v. London , 195 Va. 810, 80 S.E.2d 524 (1954), involving eye injuries. The Commission held that intervening medical advances since those 1950s-era cases necessitated their application to a novel surgery that did not exist when they were decided. Id. at 6. Although Hill involved ocular rather than orthopedic impairment, that decision’s logic nevertheless applied because there was no "meaningful distinction legally between an intraocular lens transplant and knee replacement." Id. at 5.
Just as with the lens transplant, the Commission emphasized that the implanted prosthesis could not replace the claimant’s loss:
[T]he actual loss has been occasioned by the original accident’s degeneration and only by the grace of medical science is there a continued functioning. The claimant has lost the partial use of his leg but for steel, paraplastics, and mechanical engineering. Such is a permanent loss of use of part of his natural body.
Id. at 4. Moreover, it recognized that knee replacement surgery carried inherent risks, including the necessity for an additional surgery to replace the implant if it broke or wore out over time. Id. at 6. The knee replacement was an imperfect correction for the loss suffered through the claimant’s work-related injury, one accompanied by additional risks and complications the claimant would not have to face but for that injury. The Commission therefore concluded that Hill ’s holding applied to joint replacement surgeries such that the "true measure of a loss of use as envisioned by the General Assembly is a claimant’s status at the time of the necessary implantation of a...
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