Written by Chris Wilson, Esq.
Edited by Rachel Riordan, Esq.
Virginia law provides compensation for “permanent and total incapacity” in catastrophic cases, such as where the employee has sustained a severe brain injury, loss of multiple body parts in the same accident, or injury resulting in total paralysis.[1] Due to the severity of these injuries, perm total claims are often some of the most expensive and challenging cases faced by employers and claims adjusters in Virginia.
On December 22, 2016, the Virginia Workers’ Compensation Commission issued an opinion that appears to support a limited defense against an ongoing permanent and total disability award. Unlike temporary total disability (TTD) benefits, compensation that is paid for permanent and total incapacity is not subject to a 500-week limit and may continue for the Claimant’s lifetime.[2] Nevertheless, the Full Commission’s recent opinion in Robert Withers v. W.A. Fisher & Son Inc., Electrical Co., File No. 1825974 (December 22, 2016) suggests that even in cases of permanent and total disability, if the Claimant fails to cooperate with medical treatment the employer may be able to file an application to terminate ongoing compensation.
In Withers, the parties agreed the Claimant had sustained a brain injury, and on August 2, 2007 a Stipulated Order was entered in which both sides agreed the Claimant’s brain injury was so severe that it rendered him permanently unemployable. The Employer paid compensation pursuant to the Award for permanent and total disability beginning October 17, 2006. On April 4, 2016, the employer filed an Application for Hearing which sought to terminate the outstanding PTD award based on the Claimant’s unjustified refusal of medical treatment with multiple providers. In response, Claimant’s counsel argued that a failure to cooperate with medical treatment did not provide a legal basis to withhold permanent total disability benefits because under the Commission’s case law, PTD benefits are not payments for lost wages but for loss of “human capital” [3]— similar to permanent partial disability benefits (PPD benefits).
After reviewing motions from both parties, the Deputy Commissioner found that the term “compensation” as used in the Act applied to PTD benefits just as it would to TTD, TPD, and PPD benefits. As a result, provisions in the Act which barred employees from receiving further compensation following an unjustified refusal or non-cooperation with medical treatment[4] could be used to terminate compensation payments in cases of permanent and total disability in the same way they could in cases of TTD or TPD disability benefits. Before this decision, it had appeared employer’s subject to a PTD award had no choice but to continue paying lifetime compensation; this ruling may place a new burden on employees to cooperate with all necessary medical treatment or risk suspension of permanent total disability benefits.
Although it was not mentioned in the Opinion, it is also worth noting that suspension of perm total benefits does differ from a suspension or termination of TTD or TPD benefits in one crucial respect: once a Claimant on TTD benefits “cures” his or her refusal of medical treatment by agreeing to cooperate with medical treatment, the Claimant is still potentially entitled to the remaining 500 weeks of compensation. A termination/suspension of TTD benefits thus suspends payment of compensation during the period of refusal, but does not reduce the total amount of compensation the Claimant may receive over his or her lifetime. A claimant receiving permanent total disability benefits (which are lifetime benefits), however, may begin receiving benefits again after the refusal ends but cannot recoup the compensation payments that would have been paid during the period of the refusal.
At this point it is worth noting that this issue came to the Commission on an interlocutory request by the Claimant before the Deputy Commissioner had ruled on the merits of the Employer’s Application. The Commission declined to issue an advisory opinion and merely affirmed the Deputy Commissioner’s Order, noting that the Claimant would have another opportunity to argue the issue once the Deputy Commissioner had issued a final decision following the evidentiary hearing.
Although the issue has not been presented to the Commission directly, it appears unlikely that the Commission would reach a different conclusion than the Deputy Commissioner. The Deputy Commissioner’s reasoning—based on the plain meaning of the term “compensation,” appears fully supported by the statutes in the Act. We will be following this decision closely, but for now it looks like employers in Virginia may have gained a potential defense based upon unjustified refusal or non-cooperation with medical treatment in permanent total disability claims.
Please contact us if you have any questions about this decision, or about how to evaluate the risk of a permanent total disability award in Virginia.
[1] Va. Code § 65.2-503 (C)
[2] Va. Code § 65.2-500 (D)
[3] See Morris v. Va. Retirement Sys., 28 Va. App. 799, 508 S.E.2d 925, 929 (Va. Ct. App. 1999).
[4] Va. Code § 65.2-603 (B)