Virginia Lawyers Weekly VA Lawyers Weekly
Where claimant injured his neck and left arm and hand in a work-related accident and later fell down some stairs at home and injured his left knee, the Court of Appeals erred by affirming the Virginia Workers’ Compensation Commission’s award of total disability.
Prior proceedings
Vincent sold pharmaceuticals for Merck. While on a sales call in February 2009, he injured his neck, left arm and hand while trying to remove a case of materials that was stuck in his car. He filed for workers’ compensation benefits and received temporary total disability benefits.
While treating for his injuries, Vincent injured his left knee when he fell down a flight of stairs at his home. “The fall was medically attributed to dizziness caused by medication prescribed for the treatment of his original injuries.
“He filed a claim for benefits on the ground that his knee injury was a compensable consequence of those injuries. A deputy commissioner awarded him benefits. No party appealed that award.”
Vincent filed a change in condition form in September 2017, seeking an award of permanent total disability benefits under Code § 65.2-503(C)(1).
“The statute provides that ‘“[c]ompensation shall be awarded pursuant to § 65.2-500 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.”
Merck argued that Vincent’s neck, arm and hand injuries did not occur in the same accident as his knee injury. The deputy commissioner and the full commission concluded Vincent was entitled to permanent total disability benefits.
Merck appealed. The Court of Appeals affirmed.
Discussion
“The Court of Appeals ruled that Vincent’s knee injury occurred in the same accident as the original injuries to his neck, left arm, and left hand because the knee injury was a compensable consequence of the original injuries.
“It held that ‘[b]ecause the compensable consequence doctrine allows compensation for a new injury even without a new accident, injuries under the compensable consequence doctrine are treated as if they occurred “in the same accident.”’… (emphasis added).
“But the compensable consequence doctrine does not allow injuries suffered in two separate accidents to be treated as if they occurred in the same accident. Rather, the doctrine allows a new injury that is causally connected to an earlier, compensable injury to be ‘treated as if it occurred in the course of and arising out of the employee’s employment.’ Leonard v. Arnold, 218 Va. 210, 214 (1977) (emphasis added). …
“The Court of Appeals therefore erred by ruling that under the compensable consequence doctrine, a second, separate injury is treated as if it occurred in the same accident as the original, compensable injury.
“The purpose and effect of the doctrine is not to treat two separate accidents as one accident but, as we said in Leonard, to treat the injury suffered in the second accident ‘as if it occurred in the course of and arising out of the employee’s employment.’”
‘Leonard’ applicable
“Vincent argues and the Court of Appeals opined that Leonard is inapplicable to this case because it addressed only whether an employee could bring a claim for a new injury arising from a separate accident as a claim for a change in condition, attempting to benefit from a later accrual date for the statute of limitations. …
“While that characterization accurately describes the factual context in which we decided Leonard, it discounts the reasoning that led to our conclusion.”
In Leonard, an employer suffered a compensable injury to his heel. A cast was put on his leg and he was given crutches. Later, his crutches were caught while going down stairs in a restaurant. He sought benefits.
A deputy commission ruled that the “fall was a consequence of the original accident that caused the heel injury and that the resulting, new injuries were a change in condition. The deputy commissioner awarded benefits, which the Commission affirmed.
On appeal, the employer conceded that the injuries in the employee’s fall “were covered by the compensable consequence doctrine.”
We agreed but “we held that those injuries ‘did not naturally flow from a progression, deterioration, or aggravation of the injury sustained in the original industrial accident.’ … They therefore ‘were the result of a new and separate accident, not from a change in condition.’
We then determined the claim was time-barred under the then then-existing statute.
As relevant to the case now before us, the “fact that the employee in Leonard had a second accident when he fell down the stairs, and that the injuries he suffered in that second accident ‘did not naturally flow from a progression, deterioration, or aggravation of the injury sustained in the’ first accident … is the reason why the injuries suffered in the fall were not a change in condition and the employee’s claim was time-barred. …
“[T]he result of our holding in Leonard illustrates that the original accident that causes a compensable injury is not treated under the compensable consequence doctrine as legally the same as a second accident. The two accidents are separate and distinct in reality. The compensable consequence doctrine does not contrive a legal fiction to erase that difference and make them the same in law.”
Reversed and remanded.
Merck & Co. v. Vincent, Record No. 200222 (Mims) May 27, 2021, CAV. Thomas G. Bell Jr. for appellant. Stephen F. Forbes for appellee. VLW 021-6-038, 16 pp.
