Written by Christopher R. Wilson, Esq.
Edited by Rachel A. Riordan, Esq.
Consider this scenario: while at work a man slips and falls on a wet floor, breaking his arm. In the process, he also chips his dentures, breaks his eyeglasses, and damages a spinal cord stimulator used to treat pre-existing back pain. Which of these injuries or damages is compensable under the Virginia Worker’s Compensation Act?
You’re probably very familiar with Virginia’s rules on the compensability of physical injuries, but what about other items damaged in a compensable accident—how do you determine which items the employer has to pay for?
The Virginia Worker’s Compensation Commission recently addressed this issue in a case called Quiroz v. Prince William County Schools, JCN VA 00000647619 (Oct. 27, 2014).
In Quiroz, just like in the example above, the claimant slipped and fell at work, suffering several compensable injuries. Also damaged in the fall, however, was the claimant’s spinal cord stimulator, which doctors had surgically implanted years earlier to treat failed back syndrome. At the evidentiary hearing, the claimant argued that the employer should be held responsible for repairing or replacing the spinal cord stimulator in addition to the medical treatment for the physical injuries.
Virginia Code §65.2-603(A)(2) provides that employers:
shall repair, if repairable, or replace dentures, artificial limbs, or other prosthetic or orthotic devices damaged in an accident otherwise compensable under worker’s compensation . . . .
The claimant relied on this section to argue that a spinal cord stimulator qualified as a “prosthetic or orthotic device” because it “reduce[d] pain in order to improve the functionality of the spine.” Both the Deputy Commissioner and the Full Commission disagree. Unlike a prosthesis, which serves as an “artificial substitute for a missing part,” or an orthotic, which supports weak joints or muscles, the Commission reasoned that the purpose of the spinal cord stimulator was merely to administer a strong painkiller.
The takeaway is that even if a claimant’s physical injuries are compensable, the employer is not necessarily required to pay for other items lost or damaged at the same time—even some items used for medical treatment. Getting back to the example above, under Virginia law chipped dentures would be the employer’s responsibility. The lost glasses would be compensable as well, assuming they were worn for eyesight correction, because the Commission has determined that the phrase “damaged in an accident” is broad enough to include loss—i.e. if you trip at work and your prescription glasses fall into a sewer drain. See Crawford v. County of Henrico Division of Parks & Recreation, 60 O.I.C. 116 (1981).
The Commission has also held employers responsible for damage to items such as tailor-made stockings, artificial fingers, special orthopedic shoes, and even breast implants. For example, in the case of Linda Mae Altice v. Premier Transfer and Storage Co., VWC File No. 222-74-97 (Dec. 7, 2006), the claimant had received breast implants following a bilateral mastectomy for breast cancer, prior to her industrial accident. After the accident – a fall of several feet off a dock – the claimant’s right implant appeared smaller and the claimant’s treating surgeon performed a bilateral replacement surgery. Though the surgery revealed the claimant’s right implant was not ruptured and was approximately the same size as the left, the Commission nevertheless required the employer to cover the cost of the new surgery on the basis that it was not merely “cosmetic” but instead was medically necessary for the claimant to recover from the psychological trauma of the accident, including the injury to the claimant’s self-image and esteem.
Here are a few guidelines to keep in mind, distilled from current case law:
- Damage or loss to personal items such as cellphones, clothing, handbags, watches, or jewelry—even in an otherwise compensable accident—are not the responsibility of the employer.
- Damage to items that fall under the dictionary definition of “prosthetic or orthotic device,” such as prescription eyeglasses, custom orthopedic shoes, and even breast implants, will generally be the employer’s responsibility so long as there is also a compensable accident.
- The Commission has interpreted “prosthetic or orthotic device” narrowly to exclude items that do not meet the strict dictionary definition of these terms. Thus, devices like spinal cord stimulators are not the employer’s responsibility, even when damaged in a compensable accident, as they are not an “artificial substitute for a missing part.”
Please feel free to contact us at any time if you have any questions about what is covered in compensable work injuries, or on any other workers’ compensation matter.