eNotes: Workers’ Compensation – July 2023 – Virginia

SIGNIFICANT CASE SUMMARY

Virginia Case Summary

Kpakio v. Sentara Healthcare
Virginia Workers’ Compensation Commission
VA00001762083

Decided June 8, 2023

When a Claimant lost the tips of his middle finger and ring finger, and his treatment and surgeries were confined to those fingers, it was appropriate to rate only the fingers for disability rather than the hand or the arm

Background

Claimant worked as an HVAC mechanic, when an injury resulted in the amputation of his right middle and ring fingers. He did not injure the rest of his hand nor his arm, and all the medical treatment was localized to those two fingers. After the accident, Claimant struggled to grip and climb, and testified that whenever he bumps or hits his injured fingers, he fails pain shoot throughout his hand and into his arm.

The parties agreed to a compensable accident to those two fingers. Claimant sought permanent partial disability benefits (PPD) for his right arm based on a 38% impairment rating to his right arm. Employer defended the claim on grounds that the appropriate rating was to the fingers only, finding impairment ratings of 45%/10% to each respective finger. Alternatively, Employer’s IME opinion also found that the two ratings to the finger converted to a 6% impairment rating of the hand.

The Deputy Commissioner found Claimant failed to prove an injury to his hand (as distinct from the two fingers) as the evidence was devoid of any reference to a right hand injury. The Deputy Commissioner then found that a rating to the hand was appropriate, and awarded benefits for a 9% loss of use of the hand.

Both sides appealed.

Holding

The Full Commission reversed, finding that it was inappropriate to rate the hand, and the appropriate award for loss of use must be confined to the two fingers. Even though there is loss of use of the hand in total, because the specific member involved in the industrial accident was the finger and not the hand, PPD for the hand is too broad. Commissioner Marshall dissented, finding the record showed functional loss of the hand, and that therefore the hand was disabled. Commissioner Rapaport issued a concurring opinion to specifically address his logical approach; because the injury to the fingers will always result in disability to the hand, under the dissent’s approach there would never be any reason to rate the finger alone.

Takeaway

Unless the legislature changes Va. Code § 65.2-503(B), it seems like Commissioner Rapaport will reliably err on the side of rating the smaller body part, and his approach is well-reasoned. Any time you have disability to the fingers/hand, you should skew it towards the smaller body part as well.

Questions about this case can be directed to Mike Bliley, Esquire at (571) 464-0435 or mbliley@tthlaw.com.