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Denial of permanent benefits supported

Virginia Lawyers Weekly//July 20, 2022

Denial of permanent benefits supported

Virginia Lawyers Weekly//July 20, 2022

The Virginia Workers’ Compensation Commission correctly denied claimant’s application for permanent and total disability. The medical evidence establishes that claimant’s complaints of left knee and leg problems were unrelated to her compensable right knee injury three years earlier.


Claimant suffered a compensable injury to her right knee in November, 2012. The commission awarded medical benefits and continuing temporary total disability.

In July 2015, claimant reported pain in her left knee to Dr. Salter, her treating orthopedist. Claimant sought permanent total disability benefits.

Salter examined claimant’s left knee and noted “diffuse tenderness” and a full range of motion. Salter opined that claimant’s left knee symptoms were not related to the 2012 injury. It was almost five years later when a complaint of left knee pain was noted in claimant’s medical records.

Dr. Clop, claimant’s pain manager, noted claimant’s complaints of worsening pain in both knees. Clop did not treat claimant’s left leg and did not offer a permanent partial disability rating.

Claimant’s daughters lived with her for their entire lives. The provided testimony that claimant was in constant pain, could not straighten her left leg and used crutches to walk.

On this and other evidence, the deputy commissioner awarded permanent total disability benefits. The full commission reversed. Claimant appealed.

Same old SOL

“Claimant argues that the Commission erred by failing to apply Code § 65.2-708(A)’s limitations period when it denied benefits for a causally related compensable consequence. She argues that ‘[t]he sole basis for denial of the claim, and rejection of Dr. Salter’s findings was that the March 27, 2020 report was not rendered “soon enough,” … even though the claim was filed within the statute of limitations.’ (Emphasis added).

“Thus, she maintains that the Commission applied an unprecedented ‘soon enough’ legal standard and created a new statute of limitations. We disagree. …

“The record does not support claimant’s argument [.] …[T]the Commission held that claimant had failed to satisfy her burden of showing that her ‘left knee/left leg injury [w]as a compensable consequence of her work accident.’

“The Commission reached that conclusion after considering the thirty-three months that elapsed between the primary accident and claimant’s ‘isolated complaint of [left] knee pain in 2015’ and the intervening years until claimant reported her left knee pain to Dr. Salter in March 2020.

“Indeed, the Commission’s opinion does not even mention Code § 65.2-708(A)’s limitations period and did not hold that claimant had not reported her symptoms ‘soon enough.’

“Accordingly, the Commission neither applied ‘an erroneous and unprecedented legal standard’ nor created ‘a new statute of limitations.’”

No causation

“Claimant argues that the Commission erred by finding that she failed to prove that her left knee injury was a compensable consequence of her November 16, 2012 injury. She contends that the Commission erroneously disregarded Dr. Salter’s clear, unequivocal, and corroborated findings in favor of the opinions of Drs. Clop and Berg, who never examined claimant’s left leg.

“She asserts that Dr. Clop’s and Dr. Berg’s findings are unreliable and lack probative value because their opinions were based upon an incomplete and inaccurate medical history and rested upon flawed and erroneous facts.

“In addition, she contends that the Commission unreasonably disregarded uncontroverted, uncontradicted, and credible causation testimony of claimant and her two daughters without making any adverse credibility findings. …

“The record supports the Commission’s determination that claimant failed to prove that her left knee injury was a compensable consequence of the right knee injury. The record established that claimant first reported left knee pain in 2015, thirty-three months after the primary accident.

“At that time, Dr. Salter advised her to treat with her primary care provider because the reported symptoms were ‘not causally related to the 11/16/12 injury.’

“Claimant’s medical records contain no further mention of left knee pain until March 2020. Although Dr. Salter found that claimant had ‘overuse exacerbation’ and directly related the left knee pain to the November 16, 2012 right knee injury, Dr. Clop, appellant’s pain management provider, disagreed.

“Specifically, Dr. Clop opined that claimant’s left leg pain was not caused by weightbearing from the right leg injury because claimant stated that she does not perform any activities, go anywhere, or walk at all, and her daughters confirmed that account.

“Dr. Clop also denied that claimant was at maximum medical improvement because she was still awaiting some ketamine treatments that could improve her pain.

“After conducting an independent medical examination, Dr. Berg also concluded that claimant’s left knee pain was not causally related to the primary injury, explaining that there were no radiographic findings in her left knee that explained the severity of her complaints.

“Dr. Berg also emphasized that despite claimant’s assertion that the left knee pain had developed over the years, her medical records contain no mention of left knee treatment until 2020. …

“It is also clear from the record that the Commission considered claimant’s testimony and that of her daughters.

“The Commission noted their testimony that claimant’s left knee pain had progressed during the preceding four to five years, that claimant routinely used pain patches on her left knee, and all attributed her left knee condition to undue weightbearing on her left leg as a consequence of the right knee injury.

“The Commission did ‘not find the testimony sufficient to overcome the lack of persuasive medical evidence to support a conclusion that the claimant suffered a compensable consequence to her left knee/leg in this particular case.’

“Notwithstanding claimant’s argument that the Commission arbitrarily disregarded the testimony that tended to support her claim, the Commission expressly noted that the testimony did not persuasively explain why Dr. Salter would have ignored claimant’s left knee pain complaints for nearly five years. …

“The Commission acted within its role as fact finder when it weighed claimant’s and her daughters’ testimony against the medical evidence.”


Garcia v. Fairfax County Public Schools, Record No. 1248-21-4, May 24, 2022. CAV (Clements) From the Virginia Workers’ Compensation Comm’n. Benjamin J. Trichilo for appellant. Danielle A. Takacs for appellee. VLW 022-7-154, 11 pp. Unpublished opinion.

VLW 022-7-154

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