On July 10, 2018, Franklin & Prokopik attorney Ciara Malone received a favorable opinion on a permanent partial disability issue in Mirna Rivera v. Kohl’s Department Stores, Inc. and New Hampshire Insurance Company. The case was argued at the Virginia Court of Appeals before a three judge panel.
The issue in this case was whether the claimant could prove she suffered a permanent partial left leg disability within the statutory time limitation. The claimant, Rivera, sustained a compensable back injury while working for the defendant. She claimed this back injury created a permanent partial disability in her left leg. The claimant submitted a doctor’s evaluation which supported causation between the back injury and the left leg disability and which opined that she suffered a 60% loss-of-use in her left leg. The issue was whether the left leg disability began within the thirty-six month time limitations of VA Code § 65.2-708.
Franklin & Prokopik’s argument before the Commission and before the Court of Appeals was that the claimant failed to present evidence of a permanent left leg disability that existed within the three year period following her injury. The Deputy Commissioner found that there was “simply nothing in the medical records or testimony” that supported Rivera’s disability claim, and the claim was denied at both the Commission levels. The claimant unsuccessfully appealed to the Court of Appeals. It was Rivera’s burden to prove she suffered the left leg disability due to a workplace injury within the time limitations. The Commission did not err in finding she failed to meet her burden and correctly denied her left leg disability claim. As such, the Court of Appeals affirmed the Commission’s denial of permanent partial disability benefits.