THE VIRGINIA WORKERS' COMPENSATION COMMISSION
R. Main (Siciliano, Ellis, Dyer & Boccarosse PLC, on
briefs), for appellant.
E. Swiger (The Law Office of James E. Swiger, PLLC, on
brief), for appellee.
Present: Judges Beales, O'Brien and Senior Judge
Annunziata Argued at Alexandria, Virginia
GRACE O'BRIEN JUDGE
County ("employer") appeals a decision of the
Workers' Compensation Commission awarding permanent
partial disability benefits to Michael Richardson
("claimant") pursuant to Code § 65.2-503,
based on a 74% impairment rating for loss of use of his left
leg. Claimant was injured on July 10, 2013 during his
employment as a fire department battalion chief. As a result
of his injury, he received a total hip replacement on May 7,
contends the Commission erred by (1) awarding benefits for
claimant's loss of leg use based on an injury to the left
hip, a non-ratable body part under Code § 65.2-503; (2)
finding that claimant's functional impairment was the
extent of loss prior to the hip replacement; (3) finding that
the 74% impairment rating was credible; and (4) finding that
claimant was at maximum medical improvement on the day
immediately preceding the hip replacement. For the following
reasons, we affirm the award.
injured his left hip during a work performance evaluation on
July 10, 2013. After several months of physical therapy, his
physician ordered an MRI and referred him to Dr. Anthony
Avery, an orthopedist specializing in hip injuries. Dr. Avery
examined claimant on October 18, 2013 and treated him for hip
pain. After additional physical therapy, claimant began a
more rigorous "work hardening" program in January
2014 to determine if he could resume his pre-injury duties as
six weeks, claimant "found it difficult to sit or stand
for any prolonged period of time" and could perform only
light duty work. Claimant returned to Dr. Avery who suggested
arthroscopic surgery for his hip. Employer authorized the
operation, which Dr. Avery performed on July 15, 2014. During
the surgery, Dr. Avery observed "a tremendous amount of
labral tearing and cartilage floating around the joint."
claimant initially experienced some relief following the
arthroscopy, his hip "progressively started to get more
painful as time went on." Despite continuing with
physical therapy during the fall of 2014, claimant's pain
increased. At a post-operative appointment in October 2014,
Dr. Avery observed that claimant suffered from severe pain in
his hip and groin that "radiat[ed] down his left
femur" and limited his range of motion. Dr. Avery noted
that claimant qualified for a total hip replacement and
determined that his "arthritic condition is from an
injury, more so than a chronic degenerative condition."
Dr. Avery performed the hip replacement on May 7, 2015. On
November 4, 2016, after claimant's recovery, Dr. Avery
noted that claimant had an 11% impairment of his leg.
January 25, 2017, Dr. Avery provided a written evaluation of
claimant's "level of impairment prior to his hip
replacement surgery." Dr. Avery concluded that
claimant had reached maximum medical improvement three to
four months after the July 2014 arthroscopic surgery and
"only continued to worsen." He opined that
"[w]ithout the hip replacement[, ] [claimant] would have
continued to be incapacitated. In my opinion to a reasonable
degree of medical probability . . .his injury was permanent
and would not improve without a total hip replacement."
He also explained the following:
Evaluating his status at that point and using the [American
Medical Association ("AMA")] guidelines for
impairment, I have calculated an impairment rating for him.
He had a notable gait abnormality as well as significantly
decreased [range of motion] with flexion, internal rotation,
and adduction. Additionally, he had a strength deficit with
flexion, extension, and abduction and additionally mild
arthritic findings. Therefore, according to the [AMA]
guidelines, I feel ...