PERMANENT
PARTIAL BENEFITS
§
65.2-503
Permanent loss
A. Compensation for permanent partial and permanent total loss and disfigurement shall
be awarded as provided in this section.
B. The following losses shall be compensated for the period specified at the rate of 66
2/3 percent of the average weekly wage:
Loss
Compensation Period
1. Thumb
60 weeks.
2. First finger (index finger)
35 weeks.
3. Second finger
30 weeks.
4. Third finger
20 weeks.
5. Fourth finger (little finger)
15 weeks.
6. First phalanx of the thumb or any finger
one-half
compensation for
loss of entire
thumb or finger.
The loss of more than one phalanx of a thumb or finger is deemed the loss of the entire
thumb or finger. Amounts received for loss of more than one finger shall not exceed
compensation provided for the loss of a hand.
7. Great toe
30 weeks.
8. A toe other than a great toe
10 weeks.
9. First phalanx of any toe
one-half
compensation for
loss of entire
toe.
The loss of more than one phalanx of a toe is deemed the loss of the entire toe.
10. Hand
150 weeks.
11. Arm
200 weeks.
12. Foot
125 weeks.
13. Leg
175 weeks.
14. Permanent total loss of the vision of an eye
100 weeks.
15. Permanent total loss of hearing of an ear
50 weeks.
16. Severely marked disfigurement of the body
Not exceeding 60
resulting from an injury not
otherwise
weeks.
compensated by this section
17. Pneumoconiosis, including but not limited to
silicosis and asbestosis,
medically determined to
be in the
a. First stage
50 weeks.
b. Second stage
100 weeks.
c. Third stage
300 weeks.
18. Byssinosis
50 weeks.
C. Compensation shall be awarded pursuant to §65.2-500
for permanent and total incapacity when there is:
1. Loss of both hands, both arms, both feet, both legs, both eyes, or any two thereof
in the same accident;
2. Injury for all practical purposes resulting in total paralysis, as determined by the
Commission based on medical evidence; or
3. Injury to the brain which is so severe as to render the employee permanently
unemployable in gainful employment.
D. In construing this section, the permanent loss of the use of a member shall be
equivalent to the loss of such member, and for the permanent partial loss or loss of use
of a member, compensation may be proportionately awarded. Compensation shall also be
awarded proportionately for partial loss of vision or hearing.
E. Except as provided in subsection C, the weekly compensation payments referred to in
this section shall be subject to the same limitations as to maximum and minimum as set out
in §65.2-500.
1. Compensation awarded pursuant to this section shall be payable after payments for
temporary total incapacity pursuant to §65.2-500.
2. Compensation pursuant to this section may be paid simultaneously with payments for
partial incapacity pursuant to §65.2-502.
Where compensation pursuant to this section is paid simultaneously with payments for
partial incapacity pursuant to §65.2-502,
each combined payment shall count as two weeks against the total maximum allowable period
of 500 weeks.
Before benefits may be awarded under Sec. 65.2-503,
the partial incapacity must be permanent and the injury must have reached
maximum medical improvement. County of Spotsylvania v. Hart,
218 Va.565, 568, 238 S.E.2d 813, 815 (1977). The compensation provided by Code Sec.
65.2-503 is not awardable "until the injury has reached a
state of permanency, i.e, maximum medical improvement, when the
degree of loss may be medically ascertained." See County of Spotsylvania v. Hart;
Nicely v. Virginia Elec. & Power Co., 195 Va. 819, 823, 80 S.E.2d 529,
531(1954).
The principle is well established that "[w]here, as here,
an employee suffers the loss of use of a scheduled body member,
the compensation provided by [Code Sec. 65.2-503] is not awardable
'until the injury has reached a state of permanency, i.e.
maximum improvement, when the degree of loss may be medically
ascertained.'" County of Spotsylvania v. Hart, 218 Va. 565,
568, 238 S.E.2d 813, 815 (1977) (citation omitted). Thus,
before the commission may award benefits pursuant to the
schedule in Code Sec. 65.2-503 for the loss of use of a body
member, "it must appear both that the . . . [loss or loss of
use] is permanent and that the injury has reached maximum
medical improvement." Id. The commission has consistently
ruled that an employee has reached maximum medical improvement
if no reasonable expectation exists that the employee will
obtain further functional improvement from medical treatment,
even though the injury remains symptomatic and disabling. See
e.g. Billings v. King Electric, Inc., VWC File No. 157-39-38,
n.1 (October 24, 1995). See also 4 Larson, Workers'
Compensation Law, Sec. 57.12(b) and (c) (1998). Gunst
Corporation
v. Alice Lee Childress, Record No. 1530-98-2 (May 18, 1999). WP
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The Commission properly denied permanent partial disability benefits for a partial loss
of use of a leg to a claimant who suffered a compensable back injury. Claimant had three
back surgeries before his accident and one back surgery after his accident. His doctor
wrote that "As a result of multiple operations on claimant's back, he has a 40
percent permanent partial disability rating in his left leg." No evidence
proved that the doctor's ratings were given contemporaneous to any examination.
In addition, the doctor's reports clearly reflect that the rating is the result of
claimant's multiple back surgeries. Thus, claimant failed to prove what portion of
his permanent partial disability was caused by the work injury. No
evidence proved that claimant had reached maximum medical improvement. In
fact, his doctor wrote to claimant that his symptoms would "wax and
wane." The doctor also had simply transferred an earlier rating of
the claimant's spine to the leg, without any foundation at the request of
claimant's attorney to assist him in pursuing his claim for workers' compensation
benefits. Jim Henry Stanley
v Tultex Corporation, Record No. 2373-98-3 (April 20,1999). WP
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Rating Required. Although claimant
produced evidence that he was industrially disabled and that the disability in his legs
was a substantially contributing factor to that disability, he failed to quantify
a functional loss of the legs that could be translated into loss of those members
pursuant to Code Sec. 65.2-503(C).
Although claimant was permanently and totally disabled from any gainful employment, he had
failed to prove a quantified loss of use of his legs, as required in Cafaro
Construction Co. v. Strother, 15 Va. App. 656, 657-58, 426 S.E.2d 489, 490 (1993).
"'[A]n award under Code [Sec. 65.2-503]
is not dependent upon a claimant's incapacity for work. That section is intended to
provide benefits in the nature of indemnity for the loss of a scheduled body
member.'" Cafaro, 15 Va. App. at 662, 426 S.E.2d at 493 (citation omitted).
"In order to establish entitlement to [] compensation under Code Sec. 65.2-503,
the claimant [is] required to present evidence rating the functional loss of use of his
legs." Id. Proof of the functional loss of the member, not industrial
incapacity, is required for an award of benefits under Code Sec. 65.2-503.
James Henry
LesCallett v. Rozansky & Kay Construction Company, Record No.
0675-96-4 (November 12, 1996).
Although a rating is required to meet claimant's burden of proof, it is not essential
that the facts supporting a rating exist before the statute of limitations expires. Hungerford
Mechanical Corp. v. Hobson, 11 Va. App. 675, 401 S.E.2d 213 (1991).
Vision. Creative Dimensions Group, Inc. v. Hill,
16 Va. App.439, 430 S.E.2d 718 (1993), held "that the degree of vision loss should be
determined without regard to any artificial aid or corrective device." 16 Va. App. at
441, 430 S.E.2d at 720. "'[t]he Legislature has not required that eye loss be
determined on the basis of corrected vision and [courts] have no authority to impose such
a requirement.'" Id. at 445,430 S.E.2d at 722 (citation omitted). "[L]oss
of use should be judged on the basis of uncorrected vision . . . and that therefore loss
of use will not be ruled out because some correction is achieved. Indeed, an award for
total blindness in one eye has been upheld although use of an optical lens had restored a
'substantial function of the eye.'" 16 Va. App. at 443, 430 S.E.2d at 721 (quoting 2
Arthur Larson, The Law of Workmen's Compensation, Sec. 58.13(f), at 10-492.140
to.147 (1992) (footnote omitted)). Guy
M. Sinclair v. Shelter Construction Corporation, Record No. 2367-95-4
(September 10, 1996).
The difference between claimant's pre-existing Snellen's Chart reading and his
post-injury Snellen's Chart reading is 20/220. That amount exceeds the fraction reading
for industrial blindness on the Snellen's Chart contained in Rule 13.
by subtracting claimant's pre-existing vision acuity reading (20/80) from his post-injury
vision acuity reading (20/300), the employer is given the benefit of the provision of Code
Sec. 65.2-505
and claimant is given the benefit of the deviation from normal vision as required by Rule 13.
Accordingly, under a proper application of Rule 13
and Code Sec. 65.2-505,
claimant's loss of visual acuity resulting from the injury far exceeds the minimum
threshold for industrial blindness and entitles him to one hundred percent permanent
partial disability. Guy
M. Sinclair v. Shelter Construction Corporation, Record No. 2367-95-4
(September 10, 1996).
Difference in Ratings. Where one physician rated the permanent loss to claimant's arm at 16%
and another rated the loss at 50% the commission properly averaged the two ratings
in finding a permanent loss of 33%. Goodyear Tire & Rubber
Company v. Arthur Ray Deel, Record No. 1649-98-3 (December 8,
1998).
No reduction of VRS benefits by amounts of
permanent partial benefits. Code Sec. 51.1-157(C)
is ambiguous. In Lee-Warren v. School Board of Cumberland County, 241 Va. 442, 445,
403 S.E.2d 691, 692 (1991), the Supreme Court held that "[l]anguage is ambiguous
when it may be understood in more than one way . . . . If the language is difficult to
comprehend, is of doubtful import, or lacks clearness and definiteness, an ambiguity
exists." In construing the intent of Code Sec. 51.1-157(C),
the Code Section must be read in pari materia with other statutes
relating to the same subject matter. The legislature's intention is determined from the
whole of the enactments. See Alger v. Commonwealth, 19 Va. App. 252, 256, 450
S.E.2d 765, 767 (1994). Construing such section with Code Sec. 51.1-158
utilizing the doctrine of in pari materia, the legislature intended that VRS
retirement benefits would be reduced by wage loss or death benefits paid to or on behalf
of a claimant but would not be reduced for permanent loss of use benefits paid pursuant to
Code Sec. 65.2-503.
Gregory A. Morris v.
Virginia Retirement System, Record No. 2995-97-4 (January 12, 1999).
The
commission has the power under the Workers' Compensation Act to enter awards granting or
denying benefits under the Act and dictating the terms under which those benefits will be
paid as long as those terms do not conflict with the requirements of the Act. See, e.g., Code Secs. 65.2-101,
65.2-201. Therefore, the only reasonable construction of
Code Sec. 65.2-503,
which provides that payments for a rating "may be paid simultaneously with
payments for [temporary] partial incapacity," is that the commission
has discretion to order such payments. In
cases where the commission does not order such payments, employer would be free to make
simultaneous payments voluntarily. Rusty’s Welding Service, Inc. v. Edward
Wayne Gibson, Record No. 2552-97-2 (February
2, 1999).
Successive
claims for PPD. Claimant filed a claim for permanent partial disability benefits.
The Commission denied the claim “at this time” because there was no evidence
claimant had reached maximum medical improvement. This decision was not appealed. Claimant
then refiled the same claim with a supporting report from a doctor indicating maximum
medical improvement had been reached. A panel of the Court of Appeals held that the second
claim was barred by res judicata. The en banc Court of Appeals however reversed the panel decision
and held that res judicata does not bar the refiling of the PPD claim, because the first
denial was not final. The record supported the commission's conclusion that the deputy
commissioner's use of the words "claim denied," followed by the phrase "at
this time" signified a lack of finality in the proceedings. Because the deputy commissioner's decision was not
a final determination on the merits of the matter before him, the doctrine of res
judicata does not apply. See Cook
v. Clinchfield Coal Co., 215 Va. 599, 212 S.E.2d 263 (1975).
Rusty’s Welding Service, Inc. v. Edward
Wayne Gibson, Record No. 2552-97-2 (February
2, 1999).
Because claimant failed to show that he had reached maximum medical improvement, the
commission was precluded from determining claimant's permanent loss of function. See Rusty’s Welding Service, Inc. v. Edward
Wayne Gibson, ___ Va. App. ___, ___ S.E.2d ___, ___ (1999) (en banc).
"Until the deputy or commission received medical evidence that the injured employee
attained maximum medical improvement, the deputy was without authority to make an award
for permanent injury." Id. (citing County of Spotsylvania v. Hart, 218
Va. 565, 568, 238 S.E.2d 813, 815 (1977)). Mercy Tidewater
Ambulance Service v. Bert P. Carpenter, Record No. 1813-98-1 (March 2,
1999). WP
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Progressive Increases in Loss. Code Sec. 65.2-503
(B) contemplates that a claimant with pneumoconiosis be awarded compensation only in
proportion to any increase in the severity of his or her disease. A claimant with
first-stage pneumoconiosis receives an award of fifty weeks, and a claimant with
second-stage pneumoconiosis receives one hundred weeks. The claimant already in receipt of
a fifty-week award for pneumoconiosis who thereafter progresses to second-stage is
entitled to an award only proportional to the degree in which the disease has advanced --
in other words, fifty weeks. Thus, an employer may credit awards for first- and
second-stage pneumoconiosis against awards for second- and third-stage pneumoconiosis,
respectively. In Owen v. The Chesapeake Corp., 198 Va. 440, 442, 94 S.E.2d 462, 463
(1956), the Supreme Court interpreted Code Sec. 65.2-503
to provide that a claimant who sustained a progressive increase in his permanent loss of
vision received additional benefits for only the increased loss. Additionally, the
commission has interpreted Code Sec. 65.2-503
to provide that an increased loss of use of a member results in benefits proportional only
to the increased loss. See Mabe v. Lightning Transportation, Inc., VWC File No.
155-89-02 (July 3, 1996); Shank v. Rockingham Poultry Marketing Cooperative, Inc.,
VWC File No. 132-36-51 (Sept. 6, 1994); Rife v. Garden Creek Pocahontas Company,
VWC File No. 140-11-39 (Aug. 11, 1992). Roscoe Chitwood v. E.I.
Du Pont De Nemours and Company, Inc., Record No. 1566-98-2 (August 27,
1998).
An
employee's statutory dependents are entitled to claim the
employee's scheduled permanent partial loss benefits under Code Sec. 65.2-503
(B) for loss of both arms and legs, when the deceased
employee was still under an award for temporary total incapacity
and had claimed neither permanent total nor permanent partial
incapacity before his death from unrelated causes. Although eligible for permanent total incapacity
benefits under Code Sec. 65.2-503
(C) for the loss of both arms and
both legs, the employee never claimed those benefits and was under the
temporary total incapacity award at the time of his death. Code Sec. 65.2-511
provides as follows:
When an employee received or is entitled to
compensation under this title for an injury
covered by Sec. 65.2-503 and dies from a cause
other than the injury for which he was
entitled to compensation, payment of the
unpaid balance of compensation shall be made
to his statutory dependents under this
chapter, in lieu of the compensation the
employee would have been entitled to had he
lived.
Code Sec. 65.2-511.
Code Sec. 65.2-511
includes claims under Code Sec. 65.2-503 for
"scheduled" benefits to which a claimant "is entitled" prior to
death even though benefits had not been actually awarded under
Code Sec. 65.2-503. See, e.g.,
Jarvis v. Gale, 20 O.I.C. 310, 312
(1938) (holding that dependents could claim employee's scheduled
benefits for partial disability even though employee had made no
efforts to claim them before he died). Although the employee, as a
quadriplegic, could have qualified for permanent and total
incapacity benefits under Code Sec. 65.2-503
(C), he also could have
qualified for and would have been "entitled" to scheduled
benefits under Code Sec.65.2-503(B). Because
the employee would have
been "entitled" to an award of scheduled benefits at the time of
his death, his statutory dependents were entitled under Code Sec. 65.2-511
to the balance of benefits to which Flood would have
been entitled under Code Sec. 65.2-503
(B). Thomas
Refuse Service
v. Kendell M. Flood, Record No. 1655-98-2 (June 8, 1999). WP
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The 1991 recodification of former Code Sec. 65.1-56 as Code Sec. 65.2-503
provided that "[c]ompensation awarded pursuant to this section shall be
in addition to all other compensation and shall be payable after payments for
temporary total incapacity pursuant to Sec. 65.2-500."
This recodification was not retrospective. Code Sec. 65.1-56, in effect
at the time of claimant's accident, provided that PPD benefits "shall not
extend the 500-week limit contained in Sec. 65.1-54 or Sec. 65.1-55." the
1991 statutory change was not merely procedural in nature. The recodification
affected substantive and vested rights. It obligated an employer to pay PPD
benefits in excess of the 500-week limit, an obligation employer did not have
pursuant to former Code Sec. 65.1-56. In
addition, it provided a claimant with a new right. Finally, the statutory
change contained no expression of a retrospective legislative intent. Because
the amendment constituted a substantive change in the law, the commission did
not err in refusing to apply it retroactively to claimant's claim. Based upon
former Code Sec. 65.1-56 in effect at the time of claimant's accident, he was
not entitled to PPD benefits in excess of the 500-week limit. The commission
correctly applied former Code Sec. 65.1-56 to the facts of this case in
denying claimant's claim for PPD benefits. In general, "[t]he right to compensation in cases of accidental
injury is governed by the law in effect at the time of the injury."
Island Creek Coal Co. v. Breeding, 6 Va. App. 1, 10, 365 S.E.2d
782, 787 (1988). "Retrospective laws are not favored, and a statute is
always to be construed as operating prospectively, unless a contrary intent is
manifest; but the legislature may, in its discretion, pass retrospective and
curative laws provided they do not partake of the nature of what are
technically called ex post facto laws, and do not impair the obligation of
contracts, or disturb vested rights; and provided, further, that they are of
such nature as the legislature might have passed in the first instance to act
prospectively." Cohen v. Fairfax Hosp. Ass'n, 12 Va. pp. 702, 705,
407 S.E.2d 329, 330-31 (1991) (citation omitted).
"[S]ubstantive rights are addressed in statutes which created
duties, rights, or obligations. In
contrast, . . . procedural or remedial statutes merely set forth the methods
of obtaining redress or enforcement of rights."
Id. at 705, 407 S.E.2d at 331. for the 1991 statutory change
"to apply retroactively, . . . it must be procedural in nature and affect
remedy only, disturbing no substantive or vested rights.
The statute must also contain an expression of retrospective
legislative intent." Cohen,
12 Va. App. at 705, 407 S.E.2d at 331 (citations omitted). Dennis
K. Pennington v. Superior Iron Works, Record No. 1680-98-4 (August 17,
1999). WP
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The commission did not err in finding that claimant
failed to prove she was entitled to an award of permanent total disability
benefits. Code Sec.
65.2-503(C)(1)
and(C)(2) provide compensation for permanent and total incapacity when there
is "[l]oss of both hands, both arms, both feet, both legs, both eyes,
or any two thereof in the same accident . . . [or an] [i]njury for all
practical purposes resulting in total paralysis . . . ." Subsection (D)
provides that "the permanent loss of the use of a member shall be
equivalent to the loss of such member, and for the permanent partial loss or
loss of use of a member, compensation may be proportionately awarded."
To meet her burden of proof under this section, claimant was required to
prove that she is unable to use her permanently impaired members in gainful
employment. See Virginia Oak Flooring Co. v. Chrisley, 195 Va.
850, 857, 80 S.E.2d 537, 541 (1954). In addition, she was required to
"establish that [she] has reached maximum medical improvement and
. . . [her] functional loss of capacity [must] be quantified or rated."
Cafaro Constr. Co. v. Strother, 15 Va. App. 656, 661, 426 S.E.2d 489,
492 (1993). Claimant failed to present evidence of a specific rating of
the functional loss of use of two scheduled members as required for an
award under Code Sec.
65.2-503(C).
No physician rendered an opinion on the percentage of permanent disability
to any scheduled member, singly or in tandem. Patricia
McDaniel Wise v. Bonfeld, Inc., Record No. 1433-99-2 (October
19, 1999). WP
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The Workers' Compensation Commission did not err in
finding that claimant's application for permanent partial disability
benefits was barred by the the thirty-six month mandate of Code Sec.
65.2-708(A)(i).
Code Sec.
65.2-708(A)(i)
plainly and unambiguously provides that "thirty-six months from the
last day for which compensation was paid shall be allowed for the
filing of claims payable under Sec. 65.2-503."
The date for which compensation was last paid was either February 2, 1995 or
August 5, 1995. The statute does not specify thirty-six months from the last
day on which compensation was paid. As the commission ruled, whether
February 2, 1995, or August 5, 1995, the thirty-six month limitations period
expired before claimant filed her application on October 9, 1998. Because
claimant filed her application after the applicable limitations period had
expired, the commission did not err in dismissing the application. Janie
E. Holman v. Southwestern Virginia Mental, Record
No. 1516-99-3 (November 9, 1999). WP
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The commission did not err in awarding permanent
partial disability benefits to claimant for a nineteen percent disability
rating to his right leg. Claimant’s
doctor’s opinion letter persuasively establishes a 19% permanent partial
functional loss of the claimant's right leg.
The commission recognized that the doctor used the plural
"extremities" more than once in his letter.
However, the commission inferred that the doctor had some difficulty
with the use of the English language but that "[h]is testimony and
reports clearly demonstrate, however, that his permanent partial disability
rating is related solely to the claimant's compensable right knee
injury." The commission, as fact finder, was entitled to make such
reasonable inferences. Heart
Corporation v. Thomas Myerchin, Record No. 0928-99-2
(November 23, 1999). WP
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Severely Marked Permanent Disfigurement. Teeth. The commission did
not err in denying claimant's claim for permanent partial disability
benefits based upon its finding that he had not reached maximum medical
improvement. Claimant sought permanent partial disability benefits for
the loss of his lower four front teeth, under Code Sec.
65.2-503(B),
which provides a schedule of benefits for the loss of specific body parts.
This schedule does not include teeth. However, Code Sec.
65.2-503(B)(16)
provides compensation for [s]everely marked disfigurement of the body
resulting from an injury not otherwise compensated by this section. Id.
The full commission did not err in holding that because claimant's projected
dental surgery, implants and crowns had not been completed, the
character and extent of any disfigurement suffered by him could not be
ascertained, that he had therefore not reached maximum medical improvement,
and that his claim was not ripe for decision. Claimant's disfigurement
may be enhanced, diminished, or completely erased by the implants. Stanfield
will not reach maximum medical improvement until his dental procedures are
complete. Allen
P. Stanfield v. City of Hampton Fire & Rescue, Record No.
0834-99-1 (December 28, 1999). WP
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