I began my analysis comparing the damages available to a plaintiff in a jury trial based on a tort (a civil wrong) such as a personal injury case arising out of an automobile collision with the benefits an injured claimant can seek in the statutory scheme provided by Virginia’s Workers’ Compensation Act. Time and space considerations prevented me from concluding my analysis, which has been posted as Part One of this topic. I finish up here in Part Two. I hope you find it interesting or at least useful.

We began our analysis by looking at the Model Jury Instruction which judges in Virginia habitually use to inform jurors of the nature of the plaintiff’s claim for damage which they may consider. We resume the discussion with a comparison of how the two systems deal with a loss of earning capacity. Part (7) of our damages instruction deals with the plaintiff’s right to recover for a lessening of earning capacity. In workers’ comp, the claimant has the possibility to seek something akin to the loss of earning capacity by claiming a partial permanent disability (PPD) rating from one of his doctors. A plaintiff in a personal injury case might pursue such a claim through an expert in the vocational field who would examine the plaintiff to be in position to opine on the subject of the claimant’s current condition and how that condition limits the plaintiff’s options in the job markets of the future. By showing the jury that before the accident, the claimant’s job possibilities were wide open, but the results of the accident have substantially foreclosed portions of the world of commerce and industry to the plaintiff. If the plaintiff’s expert can assign a dollar value to having broad choices available to potential job-seekers the plaintiff should be able to argue to the jury that the defendant’s negligence has cost the plaintiff a substantial sum of money by eliminating some of the most highly compensated positions from the plaintiff’s list. The claimant in our fictional workers’ comp case has to follow a different path to be compensated for a lessening in his ability to produce income by working. First, the claimant’s doctor must declare that the claimant has reached maximum medical improvement (MMI). As this term is used in workers’ compensation cases, it indicates that the claimant’s injuries have plateaued, in other words, the claimant’s medical condition has stabilized; consequently, the claimant’s condition is unlikely to get better or to get worse. MMI does not mean that the doctors will not provide further treatment to the claimant. Palliative care is recognized as being a form of treatment or therapy which a physician may choose to provide to the claimant not with the expectation that it would improve the claimant’s ability to function, but merely to reduce the claimant’s pain.

Assuming the claimant has reached MMI, the doctor will very often request that the claimant undergo an FCE (Functional Capacity Evaluation) which consists of a battery of physical tests designed to measure whether the patient can resume the same duties performed prior to the accident. A specially trained physical therapist will normally administer the series of tests and record, not only the raw numbers such as the most repetitions the patient can perform during the exercise but also what the patient cannot do. The therapist’s raw numbers are generally reported back to the testing entity (referring doctor) who assembles the details according to the method which the doctor is following, (if there is one.) The leading guide used in making the final evaluation is the American Medical Association’s Guide to Permanent Impairment, which I believe is in its 6th or 7th edition. There can be substantial controversy as to the edition the doctor chooses to use in evaluating the claimant for a “perm-partial” case, however, this issue of which edition is better for this particular assessment is essentially an academic exercise since the Workers’ Compensation Commission is on record as saying that it does not require the use of one edition over another, and, in fact, does not require the rating doctor to use the AMA Guide, or any published guidelines, for that matter.

To be compensable, PPD must be measurable. It is not sufficient for the doctor to say the claimant cannot walk, stand, lift, sit, crawl, etc. as well as the claimant could before the accident. The doctor must be able to verbalize the claimant’s loss of capacity as a percentage of his pre-accident abilities. For certain body parts (eyes, ears, fingers, toes, legs, arms, and so forth [but not the back which is not ratable in Virginia]), Code section 65.2-503, provides a schedule of benefits that shall be paid when the conditions justify a PPD award. For example, the loss (or loss of use) of the great toe is worth 30 weeks of compensation. We discussed above calculating AWW and, from it, the CR. Suppose that AWW is $750/week. The resulting comp rate (CR) would be 2/3 of the AWW, which would be $500/week. In the case where the claimant lost the entire great toe, he would receive 30 weeks X $500/wk. = $15,000. However, if the injury caused a loss of use of the great toe of 20%, the value of the PPD award is 20% of the total award which is $15000, which result in an award of $3,000. Certain over-riding rules apply, such as the fingers are a part of the hand; therefore, no award for the cumulative loss of fingers shall exceed the value of the total loss of the hand. Similar rules apply to the toes and the foot.

Loss of vision is measured by the use of Snellen’s chart, which is the standard eye chart beginning with the huge letter “E”. It is applied in basically the same way it is by your optometrist. Certain visual acuity is assigned familiar values like 60/20, indicating the patient can see at 20 feet what a normally sighted person can see at 60 feet. The Commission then converts the results from Snellen’s chart to a corresponding percentage of loss of vision, the value of which is computed like our thumb example above. Total loss of vision in one (1) eye is valued at 100 weeks, the same as the total loss of the foot. The unique aspect of calculating loss of vision is that the Commission has held that the measurement of the loss of vision should begin with the uncorrected eye.

In an example from an actual case, my client was struck directly in the eye by a shard of metal that broke off of a metal punch a co-worker was using to drive out a locking pin from a piece of equipment. The eye required surgery to repair the lens, but the lens could not be saved due to the extensive trauma the shard inflicted when it struck the claimant’s eye. Therefore, the ophthalmologist was forced to remove the lens from the eye which left the claimant with “no useful vision” in the injured eye. Through the wonders of modern medicine, the ophthalmologist was able to fit the claimant with a special contact lens that successfully restored some vision to the claimant’s eye such that he could differentiate between dark and light, could see some movement, and when combined with his uninjured eye gave the claimant functional binocular vision equivalent to 20/30. However, the contact lens was difficult to put in and take out, and because it rubbed against scar tissue in the claimant’s eye, it was uncomfortable to wear. Consequently, he rarely used it. According to the conversion table from Snellen’s chart to the percentage of loss which the Commission uses, the claimant’s loss of vision was 10%, which is what the adjustor offered my client to settle his claim. Fortunately for my client, the Commission had dealt with this type of issue before, and held on several occasions that the claimant’s loss of vision was measured using the uncorrected vision in the injured eye.

In an earlier case, where the claimant had no “useful vision in his injured eye after the accident, the Commission found a total loss of vision in the injured eye even though the vision could be corrected. Samuels v. Atkins, 52 O.I.C. 22 (1970). In another case, the doctors were forced to remove the natural lens in the claimant’s injured eye. However, the doctors were able to replace the natural lens with an artificial lens which not only restored the claimant’s vision, but also improved it from what it was prior to the accident. Never the less, the Commission remained consistent that the loss of vision should be measured by the remaining vision in the uncorrected injured eye because the removal of the natural lens meant that the eye could no longer function in its natural state. Pearson v. Virtexco, 67 O.I.C.146 (1988).

While we are browsing in section 65.2-503, let’s take a look at the different ways the tort system and the comp system deal with disfigurement. Glancing at our jury instruction, item (3) allows juries to consider in fixing the amount of the damaged due to a prevailing plaintiff “any disfigurement or deformity…
Emphasis added.) Clearly, the tort instruction is more generous than the comp statute. In the jury instruction, disfigurement or deformity is not otherwise qualified by modifiers. The comp statute sets limits on the type of disfigurement which it will consider. The disfigurement must be severely marked. That term is not otherwise defined by the statute, but it is clear that comp intends to deal only with significant disfigurement. Although the statute does not indicate what kinds of restrictions and/or hardship must accompany severe disfigurement to be compensable, some cases I have read suggest that the General Assembly intended that compensation for disfigurement be limited to cases where the disfigurement results in a loss of work capacity. After all, this section of the statutory scheme is dedicated to the calculation of economic loss caused by “crippling injuries.” Such an interpretation of the disfigurement section would then be consistent with the types of injuries otherwise addressed by this section. Recovery for disfigurement in workers’ comp, is further limited by the phrase “resulting from an injury not otherwise compensated.” My interpretation of that limiting language is that a claimant left with a severely disfigured hand resulting from getting the hand caught in some type of industrial machinery, for example, would have no separate claim for disfigurement, no matter how severely marked it might be, if he was otherwise compensated for the loss of functional use of the hand.

Certainly, a disfigured claimant in comp does not have the opportunity to court jury favor that a deformed or disfigured plaintiff has. First of all, the jury instruction, as observed, does not include the limiting language contained in the comp statute. Presumably, the jury has the right to compensate any degree of deformity and disfigurement, no matter how severely marked or whether or not the disfigurement is a part of another award. Most significant is the part of the jury instruction that has no counterpart in the statute, the specific authorization for the jury to consider damages to compensate the plaintiff for “associated humiliation or embarrassment.” This type of recovery for humiliation and embarrassment, coupled with recovery for, physical pain and mental anguish, item (2) in the jury instruction, and inconvenience, item (4), is what truly separates damages for personal injury in tort from the benefits an injured worker can receive from workers’ compensation.

Humiliation, embarrassment, pain, mental anguish, and inconvenience are what tort lawyers refer to as “general damages,” as compared to medical bills and lost time from work, which are considered “special damages,” or simply “specials.” Special damages have a specific monetary value attached to them, while general damages are not given a specific value. Juries are not instructed to assign them any particular monetary amount, and that matter is left to the jury’s discretion subject to the court’s oversight to deal with verdict’s which “clearly shock the conscience of the court.” It is an opportunity for the lawyers in a tort case to attempt to sway the jury with the evidence they present and, perhaps even more, by their advocacy when arguing the case to the jury at the close of all the evidence. This concept of awarding a tort victim damages for “pain and suffering” has become a matter of general knowledge among a large portion of the population, at least of the US. This general awareness of the “right” to recover for “pain and suffering” is what most often causes headaches for comp lawyers trying to manage their clients’ expectations.

Historically, as most lawyers who practice in workers’ compensation know, the method of compensating injured workers outside of the tort process arose as an early Twentieth Century reform-response to the unfairness of this same tort system to the cases brought by these workers. The concept of “contributory negligence,” which prevents the plaintiff from recovering if he/she is negligent himself/herself and that negligence contributes in any meaningful way to causing the accident, was more widespread then than now.
So was the concept that a co-worker’s negligence in causing the plaintiff’s injury might insulate the employer from liability to the injured employee. Those widely recognized legal concepts often barred even the most seriously injured workers from recovery since it was difficult to find an industrial situation where either the injured worker or one of his co-workers were not themselves negligent in causing the accident and resulting injuries.

As the basis of the modern workers’ compensation system, workers entered into a “grand bargain” with their employers. In order to fashion a system in which injured workers could reasonably expect a prompt receipt of basic benefits and employers were protected from runaway juries, the employers agreed to a compensation system in which the concepts of negligence and fault are irrelevant to the outcome.
In exchange for eliminating fault from workers’ compensation, the workers gave up the right to request general damages such as “pain and suffering.” Even if I go over the “grand bargain” with my clients or just simply tell them that there is no recovery for “pain and suffering” in workers’ comp, it is difficult for many of them to shed this idea that they are somehow entitled to being compensated for “what I have been through.” This feeling of a natural entitlement to some form of damage for those broad areas covered by the jury instruction can be especially troublesome in settlement negotiations for full and final settlement of the entire comp claim. Managing the client’s expectations often becomes the claimant’s lawyer’s biggest obstacle to reaching settlement. Hopefully, as folks become more educated about the historical reason for the existence of a separate system of Workers’ Compensation and the differences between damages in a traditional tort case and benefits in a comp case, future lawyers will have fewer problems in managing their clients’ expectations. If so, then I hope this article will have contributed some small amount to that end.

Thank you for your patience and your perseverance if you have stayed with me all the way from the beginning. I try to be economical with your time and the available space allotted to this blog. However, to do justice to some topics, demands more time and space. This topic is certainly one which has a high priority.

At present, I believe only four states, Virginia included, still have strict contributory negligence. The majority of states have adopted some form of “comparative negligence” which allows a trier-of-fact to compare the negligence of the plaintiff and the defendant and award damages accordingly.

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