Smoot v. Weight Watchers Int’l Inc., 032421 VAWC, VA00001558427

• Case Date: March 24, 2021
• Court: Virginia

LINDA SMOOT v. WEIGHT WATCHERS INT’L INC. NEW HAMPSHIRE INSURANCE COMPANY, Insurance Carrier AIG CLAIMS, INC., Claim Administrator Jurisdiction Claim No. VA00001558427 Virginia Workers Compensation Virginia Workers’ Compensation Commission March 24, 2021           Date of Injury: January 7, 2019.           Claim Administrator File No. 555268849.           Hannah Bowie, Esquire For the Claimant.           Adam S. Rafal, Esquire For the Defendants.           REVIEW on the record by Commissioner Marshall, Commissioner Newman, and Commissioner Rapaport at Richmond, Virginia.          OPINION           MARSHALL Commissioner          The claimant requests review of the Deputy Commissioner’s November 5, 2020 Opinion denying permanent partial disability benefits for the left upper extremity. We REVERSE.          I. Material Proceedings          The claimant sustained a compensable injury by accident on January 7, 2019 and suffered a left wrist injury, facial injury, chest injury, nasal trauma, and concussion. She filed an April 16, 2020 claim seeking permanent partial disability benefits for a 13% impairment of the left upper extremity.          The Deputy Commissioner conducted an on-the-record hearing on October 20, 2020. Both parties submitted position statements and discussed the case of Howell v. Allied Signal, LLC, VWC File No. 193-13-47 (June 3, 2002). The claimant maintained that the evidence supported an upper extremity rating: the bones injured were located in her arm, the wrist simply indicated the location of the breaks and post-operative imaging showed the arm injury. The defendants maintained that the evidence did not substantiate an injury above the wrist; therefore, the impairment rating could not be to the upper extremity.          The Deputy Commissioner found the claimant failed to prove a compensable permanent loss of use to her right wrist. She explained:

Medical records reflect the claimant broke two bones in her left wrist, i.e., the distal radius bone and the ulna bone. X-rays revealed the claimant sustained a distal radius fracture and distal ulna fracture. . . . On January 25, 2019, the claimant submitted to surgery by Dr. Kiernan, i.e., left open reduction internal fixation intraarticular distal radius fracture, left ulna open reduction internal fixation, and left middle trigger finger release.

Following surgery, the claimant continued treating with Dr. Kiernan.

. . . .

The claimant relies upon Dr. Kiernan’s July 16, 2019 report. . . . Dr. Kiernan noted that using the AMA Guides 5^th Edition, he calculated a permanent partial impairment of 13% impairment rating for the claimant’s left upper extremity. Upon examination, Dr, Kiernan noted: full forearm rotation, wrist flexion 30 degrees, and wrist extension 35 degrees. Dr. Kiernan’s Impression states, “[Satisfactory post operative course thus far following left open reduction internal fixation intraarticular distal radius fracture, left ulna open reduction internal fixation, and left middle trigger finger release, performed on 1/25/19. Healed fracture.”

. . . .

In Ruiz v. Fairfax County Government, JCN VA00001192173 (Nov. 29, 2018), the full Commission affirmed the Deputy Commissioner’s August 10, 2018 Opinion. The Deputy Commissioner’s August 10, 2018 Opinion noted that the Commission generally holds that an injury by accident to the wrist resulting in permanent impairment entitles a claimant to benefits for a loss of use to the hand, not

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