(Posted May 7, 2020) Today is a high holy day in the Emmert family calendar. Before we take up today’s lone Supreme Court opinion, I’ll take a moment to thank The Highest Ranking Authority of Whom I Am Aware, who agreed 32 years ago today to stick with me for better or for worse, for richer or poorer, in sickness and in health, and so forth. I also thank her for not having fired me in the interim. I’ll try to do better from here out, my wonderful wife.

Meanwhile, at Ninth and Franklin, the justices break a month-long drought by handing down a published opinion in a Workers’ Comp appeal, Loudoun County v. Richardson. This case involves an interesting procedural issue and the chronicler’s best friend, a split decision.

Richardson sustained a work-related injury in his work with the Loudoun County Fire Department. His doctor eventually determined that he needed hip replacement surgery, as his conservative post-injury treatment left the patient in significant pain. Despite the patient’s relatively young age – just 55 – he agreed to the surgery.

You would have to consider that procedure to be a success. The doctor testified that he had an impairment of 74% before the surgery, and only 11% afterward.

The patient filed a comp claim for an 11% permanent impairment, but eventually amended that claim to the pre-surgery 74%. The Comp Commission awarded him permanent partial benefits at the 74% rate, and the Court of Appeals affirmed. A Supreme Court writ panel granted the county’s request to review the case.

The main issue here is this: When an injured worker receives successful treatment that restores most of his pre-injury capacity, should the award be based on his pre-surgery impairment, or his condition after surgery? Justice Mims, writing for the majority, concludes that the pre-surgery impairment is the proper measure. He turns to a 1956 ruling in which the Supreme Court ruled that an eye injury merited an impairment award even though eyeglasses restored the employee’s vision. The majority sees no meaningful analytical difference between furnishing eyeglasses and furnishing a fake hip.

The majority notes that this ruling has achieved acceptance since then, in the form of rulings by the Court of Appeals – one of which had expressly applied the 1956 principle to a corneal implant – and the Workers’ Comp Commission, which extended it unto a knee replacement in a 2002 decision.

Justice Mims also cites medical literature that outlines the long-term risks of hip-replacement surgery, especially for patients younger than 65. He lists activities that the patient’s doctor advised him against trying, for fear of a joint failure. Finally, he observes that a state senator introduced a bill, right after that 2002 VWCC ruling, that would expressly provide that a patient’s post-implant condition is the measure of benefits. But the senator pulled the bill and so the legislature presumably acquiesced in this line of cases.

Fifteen years of analyzing Supreme Court rulings for this website has honed – I won’t say perfected – my ability to read between the lines in the justices’ writing. But I needed none of that skill in reading Justice Kelsey’s stinging dissent, in which Justice Powell joins. The dissenters believe that the 1956 decision in no way compels this result, as adding a pair of eyeglasses doesn’t cure a patient with an eye injury; it merely accommodates the condition. In contrast, they point out, this surgery restored all but 11% of Richardson’s functionality.

The dissent also chides the majority for reaching outside the record of the case to cite medical literature that the parties hadn’t cited below. They regard this as the majority’s taking judicial notice of hearsay matters, without bothering to hear from an expert or subjecting his opinions to cross-examination. I’m reading between the lines here; Justice Kelsey’s jab is more direct: “The apparent purpose of taking judicial notice of these articles is to imply that, as a matter of law, a medical expert can never give a truly reliable opinion on a patient’s permanent impairment following a hip-replacement surgery.” As an aside, my handy-dandy copy of The Law of Evidence in Virginia discusses judicial notice in §3.2, and medical literature doesn’t easily fit within any of the accepted categories of matters of which courts can take judicial notice.

Nor do the dissenters accept the legislative-acquiescence angle advanced in the majority opinion. First, they point out that this doctrine only applies to decisions by the state’s court of last resort. That means that all those rulings from the CAV and VWCC don’t help. And the fact that a senator pulled a bill doesn’t indicate that the legislature has considered a court ruling and agreed with it. Quite the opposite: It means, in the dissenters’ view, that the legislature has not considered this question, and so it can hardly be said to have acquiesced.

The dissent would fashion a simple rule: Impairment ratings are to be measured upon a patient’s reaching maximal medical improvement, and if a surgery is what gets the patient to that point, then benefits should be calculated on the patient’s post-surgical condition.

When you read the dissent, you’ll see the usual subdued phrasing in such opinions, such as “I respectfully disagree,” and so forth. But there’s a clear subtext of almost scorn for the majority’s reasoning; it’s unmistakable. This is an unusually vigorous dissent, though perhaps not for Justice Kelsey, who quite often expresses his views in strong terms.

I understand that this appeal is one of a small number of cases where the Supreme Court granted a writ before hearing a writ argument. When the panel decides in advance to award an appeal, the appellant’s lawyer receives a very enjoyable phone call from the court, saying, “You don’t need to come to court; you’re getting your writ.”

The chief justice sat out this appeal; Justice Millette participated in the case in his stead, and joined the majority.