Gerald G. Lutkenhaus Workers Compensation Law Blog on Lawyers.com

Virginia Workers Compensation Commission denies compensation for replacemnt of artificial joint.

Thursday, May 5, 2011 by Gerald G. Lutkenhaus

Virginia’s Statute of Limitations in Workers’ Compensation Claims is Not Extended for Removal of Prosthesis on the grounds removal is not "repair" or "replacement."

In a recent case the claimant had her ankle prosthesis removed and replaced with a rod and a fusion. This was done because the ankle had become painful. The claimant sought compensation benefits for a 40% loss of her leg.

Her original injury was in 2003 but the claimant sought to extend the statue of limitations by relying upon Virgina Code Section 65.2-708 (A) which says the claimant has 24 months after repair or replacement of a prosthesis to file for additional compensation for permanent partial loss of an extremity. The insurance company argued the statute of limitations should not be extended.

The Full Commission in a 2 to 1 decision said replacement of a prosthesis with a steel rod was neither a "repair" nor a "replacement of the prosthesis" under the Act. The dissenting Commissioner said the narrow interpretation of the Virginia Workers Compensation Act was contrary to the doctrine that when possible the Act should be interpreted for the benefit of injured workers. Thus, benefits were denied. The case is Kathryn M. Saffert v.Fairfax County School Board, JCN 214-46-98, April 1, 2011.

This case once again illustrates the Virginia Workers’ Compensation Act (when it is unclear) is rarely interpreted to favor injured workers by the Commission.

This may be considered AN ADVERTISEMENT or Advertising Material under the Rules of Professional Conduct governing lawyers in Virginia. This note is designed for general information only. The information presented in this note should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

Jerry Lutkenhaus has been a practitioner of Virginia Workers Compensation law in the Richmond, VA for over 35 years. He was given an "AV" rating by Martindale-Hubbell in 2003. Richmond Magazine has listed Mr. Lutkenhaus as one of the best lawyers in central Virginia. There is more information at www.virginiadisabilitylawyer.com or www.geraldlutkenhaus.com. In 2010 he was given AVVO's highest rating of "superb" in their system. http://www.avvo.com/att orneys/23230-va-gerald-lutkenhaus-1814627.html

Posted at 16:21 PM

Topic: Workers Compensation