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Pre-existing condition can be used in evaluating impairment

Although the commission had previously concluded the employee’s right-knee injury was attributable to a compensable injury, the commission could still consider the employee’s pre-existing condition in evaluating the degree of impairment.


On March 2, 2009, claimant injured her left knee while working for employer. A deputy commissioner found that she proved a compensable injury and awarded her medical and temporary total disability benefits in June 2011. Following various medical treatments, claimant underwent a left knee replacement on Sept. 27, 2011.

Claimant’s right knee, which suffered from pre-existing problems, worsened due to additional weight-bearing from her left knee replacement surgery. Following an evidentiary hearing, a deputy commissioner issued an opinion finding that “the right knee condition is, at least in part, attributable to the compensable injury and that treatment for the right knee, including surgery, is the responsibility of [employer].” Employer did not appeal, and claimant ultimately underwent a total right knee replacement.

On May 8, 2015, claimant filed a request for permanent partial disability benefits “based upon the loss of use of both legs” and specifically requested an award for 50 percent impairment of her left leg and 50 percent impairment of her right leg. In support, she offered the report of an independent medical examination, or IME, by Dr. John Bruno.

Employer obtained an IME of claimant by Dr. Mehrdad Malek. After examining claimant and reviewing her medical records, Dr. Malek ultimately determined that “[Claimant] has 37% permanent partial impairment of her right lower extremity from which 30% is related to her pre[-]existing osteoarthritis and 7% as a result of right knee arthroplasty and morbidity associated with it.”

A deputy commissioner awarded claimant permanent partial disability benefits based on Dr. Malek’s seven percent impairment rating. The full commission affirmed, with one commissioner dissenting.


Claimant asserts the commission erred by only finding a seven percent impairment of her lower right extremity. She contends that because a deputy commissioner previously determined that her work injury to the left knee caused the permanent disability to her right knee, “[a]ny pre-accident arthritis in the knee became irrelevant once [the original joint] was removed and replaced with an artificial joint.” We disagree.

Despite a deputy commissioner’s May 2012 finding that the 2009 compensable work injury to the left knee exacerbated the right knee problems, this determination did not foreclose the commission from considering the pre-existing condition in evaluating the degree of her impairment. Dr. Malek considered claimant’s prior medical history as well as his examination of her when he rated her impairment at 37 percent and opined that “30 percent is related to her pre[-]existing osteoarthritis.”

Dr. Bruno’s 50 percent impairment rating, however, did not account for claimant’s pre-existing knee condition. The commission did not credit Dr. Bruno’s opinion because it ignored relevant facts. Unlike Dr. Malek, Dr. Bruno did not mention claimant’s undisputed arthritis or her previous knee surgeries. When presented with conflicting medical opinions, “the [c]ommission was free to decide which evidence was more credible and should be weighed more heavily.” The commission accorded no weight to Dr. Bruno’s opinion and accepted Dr. Malek’s as more credible, and we will not disturb this determination on appeal.


Hicks v. Giant Landover, Ahold USA Inc., Record No. 1674-18-4, June 4, 2019. CAV (O’Brien) from Virginia Workers’ Compensation Commission. David L. Bayne, Jr. for Appellant, Padraic K. Keane for Appellee. VLW No. 019-7-099, 8 pp. Unpublished.

VLW 019-7-099

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