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Loudoun County v. Richardson

Court of Appeals of Virginia

April 16, 2019

LOUDOUN COUNTY
v.
MICHAEL RICHARDSON

          FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Justin R. Main (Siciliano, Ellis, Dyer & Boccarosse PLC, on briefs), for appellant.

          James 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

          OPINION

          MARY GRACE O'BRIEN JUDGE

         Loudoun 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, 2015.

         Employer 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.

         BACKGROUND

         A. Medical Evidence

         Claimant 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 a firefighter.

         After 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."

         Although 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.

         On 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 ...

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