Virginia: Apportionment Allowed for Pre-Existing Condition

A Virginia appellate court affirmed a finding of the state’s Workers’ Compensation Commission that had apportioned an injured employee’s disability based on her preexisting condition, awarding benefits based upon a 25 percent PPD to the right lower extremity. Analyzing the medical evidence in the record, the court noted that the employee’s physician indicated she had degenerative disc disease in an evaluation one year before the work-related accident. At that time, the employee had described her discomfort as between moderate and severe. The doctor also opined that the employee would have needed a hip replacement at some point even without the work-related injury. The court said the Commission’s finding that the employee suffered from a preexisting functional loss was supported by competent evidence. While the physician assigned a 50 percent impairment, the evidence supported the Board’s apportionment award.

Thomas A. Robinson, J.D., the co-Editor-in-Chief and Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law(LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis

See Clements v. Augusta Health & Safety First Ins. Co., 2021 Va. App. LEXIS 148(Aug. 3, 2021)

See generally Larson’s Workers’ Compensation Law, §§ 34.03, 90.03.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law

For a more detailed discussion of the case, see

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