Another Win Before the Court of Appeals of Virginia

Court of Appeals Agrees With Our Position that the Employer and Insurer Should Pay for the Permanent Impairment Rating Evaluation

 

I have practiced workers’ compensation law for about 15 years.

 

One of the most common disputes between injured employees and insurance carriers is who should pay for a functional capacity evaluation (FCE) that will rate the level of permanent impairment to an employee’s injured body part.

 

Insurers have argued that the sole purpose of this impairment rating is to obtain permanent partial disability benefits under the Workers’ Compensation Act, and requiring them to pay for the rating improperly shifts the employee’s litigation expenses to employers.

 

In contrast, claimants’ attorneys like myself have argued that (1) the Workers’ Compensation Act should be construed liberally in favor of a claimant, in harmony with the Act’s humane purpose, and (2) publications from the American Medical Association (AMA) show that what occurs during a permanent impairment evaluation is necessary medical attention under the Act. Paying for an impairment rating, therefore, is the insurer’s responsibility.

 

For most of my career, the insurers’ position won, with the Workers’ Compensation Commission refusing to make employers and insurers pay for permanent impairment ratings.

 

But Commissioner Wesley Marshall continued to dissent, explaining why an examination establishing a permanent partial disability rating should be the insurer’s responsibility.

 

And in 2021, Commissioner R. Ferrell Newman departed from his past rulings and joined Commissioner Marshall’s view in Elliott v. Sam Green Vault Corp., JCN VA00001108316 (Oct. 5, 2021).  

 

Earlier today, the Court of Appeals of Virginia weighed in on the issue in a case that Brent Jones and I handled, Henrico County Public Schools v. Mack, Record No. 0635-24-2 (Mar. 18, 2025). And the news is good for injured workers.

 

Deciding the cases “on the best and narrowest grounds available,” a panel of three judges with the Court of Appeals found the FCE ordered by Mack’s treating physician was a necessary diagnostic and therapeutic test to evaluate and treat lingering issues related to compensable knee injuries. The court, therefore, held that the FCE with an impairment rating was necessary medical attention under Virginia Code Section 65.2-603(A)(1) that the insurer must pay for.

 

Although the court explicitly avoided “the broader legal question of whether an FCE will always be ‘necessary medical attention,'” this ruling is a step in the right direction for injured employees.

 

A strict interpretation of the AMA’s explanation of what happens during an impairment evaluation should always lead to a finding that the evaluation has a role in assessing and deciding current work restrictions and status, making it necessary medical attention the insurer should pay for.

 

What do you think about the court’s decision?