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Workers’
Compensation Board
OPINION ENTERED: September 15, 2017
CLAIM NO. 201691517
WILLIAM HEIGHTCHEW PETITIONER
VS.
APPEAL
FROM HON. CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE
RANDSTAD
AND HON CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. William Heightchew (“Heightchew”)
appeals from the April 12, 2017 Opinion and Order and the May 9, 2017 Order on
Reconsideration rendered by Hon. Chris Davis, Administrative Law Judge
(“ALJ”). Heightchew
argues the ALJ prematurely terminated temporary total disability (“TTD”)
benefits, and that the evidence compelled a finding he is permanently totally
disabled. For the reasons set forth
herein, we affirm.
Heightchew
worked as a truck driver and performed home construction, installation and
factory work through various temporary staffing agencies. He eventually came to Randstad, also a
temporary staffing agency, and was assigned to AEP Industries in December of
2015. At AEP Industries, Heightchew was required to operate a machine that
manufactured shrink-wrap. The machine
consisted of two large rollers, through which the shrink-wrap would pass and be
placed onto smaller rolls to be weighed and packaged. Heightchew
testified he received just a few minutes of training, during which he watched
another employee operate the machine.
On December 23, 2015, the
second day of Heightchew’s work at AEP Industries,
the shrink-wrap was not passing through the rollers correctly and became
bunched. A supervisor came to the
machine and fixed the problem. Later, the
wrap again became bunched. Heightchew grabbed the plastic to pull it through the
rollers as he had seen the supervisor do.
In doing so, the plastic twisted around his left hand and between his
thumb and index finger. Heightchew reported the incident to his supervisor and was
taken to Jessamine Hospital Urgent Care.
Heightchew
underwent two surgeries to repair his thumb in March, 2016 and July, 2016. Dr. Margaret Napolitano performed both
procedures. The second surgery was
required to drain a cyst resulting from infection at the surgical site. After the second procedure, he completed a
course of physical therapy. At a
September 19, 2016 office visit, Dr. Napolitano stated Heightchew
was not yet at maximum medical improvement (“MMI”) but could return to regular
work with no restrictions.
Heightchew
has not returned to work since the injury.
He continues to wear a brace and experiences uncomfortable vibrations
through his hand. He is left-hand
dominant, and therefore his ability to grip items is impaired. He still experiences pain and numbness in his
thumb.
Dr. Anthony McEldowney performed an independent medical evaluation
(“IME”) on December 10, 2016. Dr. McEldowney diagnosed a crush injury of the left thumb and
noted Heightchew’s reports of continued pain,
numbness and motion limitations. He
stated Heightchew was at MMI unless a reconstruction
procedure was recommended. Dr. McEldowney assigned a 14% whole person impairment rating
pursuant to the American Medical Association, Guides to the Evaluation of
Permanent Impairment, 5th Edition (“AMA Guides”). Dr. McEldowney
recommended no frequent or repetitive activities with the left hand, and no
pinching or gripping with the left hand.
Dr. Rick Lyon conducted an
IME on January 26, 2016. He diagnosed a
crush injury, trigger thumb and postoperative infection. He placed Heightchew
at MMI as of the date of his exam, and assigned an 8% whole person impairment
rating pursuant to the AMA Guides.
He opined Heightchew could return to his
pre-injury work but should limit the use of his left dominant hand to a helper
hand with no gripping.
The ALJ determined Heightchew suffered a work-related injury to his thumb and
awarded TTD benefits from December 23, 2015 through September 19, 2016. The ALJ stated Dr. Napolitano released Heightchew to full duty work on September 19, 2016. Relying on Dr. Lyon, the ALJ determined Heightchew suffers an 8% whole
person impairment as a result of the injury.
He further relied on the opinions of Drs. Lyon and Napolitano, and the
physical therapy notes, to conclude Heightchew is
physically capable of returning to his pre-injury employment. Heightchew
unsuccessfully petitioned for reconsideration, raising the same arguments he
now raises on appeal.
Heightchew
first argues he was entitled to an award of TTD benefits through November 19,
2016. According to Heightchew,
Dr. Napolitano placed him at MMI as of November 19, 2016. However, there is no record or note from Dr.
Napolitano contained in the record before this Board, indicating he was placed
at MMI on November 19, 2016. The ALJ did
not summarize such a record or note, indicating the document was likely not
submitted into evidence. The Respondent
noted this omission in its brief to this Board, and Heightchew
did not file a reply brief.
To be sure, the ALJ’s
decision to terminate TTD benefits on September 19, 2016 is supported by
substantial evidence.
Temporary total disability is the “condition of an employee who has not
reached maximum medical improvement from an injury and has not reached a level
of improvement that would permit a return to employment[.]”
KRS 342.0011(11)(a).
Dr. Napolitano’s September 19, 2016 records indicate she released Heightchew to regular work with no restrictions as of that
date. Accordingly, the ALJ’s decision to
terminate the award of TTD benefits is supported by substantial evidence.
Heightchew
next argues the ALJ improperly denied permanent total disability benefits. As
the claimant, Heightchew bore the burden of proof on
this issue. Because he was not
successful, the question on appeal is whether the evidence compels a finding he
is permanently totally disabled. Wolf Creek Collieries v. Crum, 673
S.W.2d 735 (Ky. App. 1984).
Permanent total disability
is the condition of an employee who, due to an injury, has a permanent
disability rating and has a complete and permanent inability to perform any
type of work as a result of the injury. KRS 342.0011(11)(c).
In determining whether a worker is
totally disabled, the ALJ must consider several factors
including the worker’s age, educational level, vocational skills, medical
restrictions, and the likelihood he can resume some type of work under normal
employment conditions. Ira A. Watson Department
Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000). The ALJ enjoys wide ranging discretion in
granting or denying an award of permanent total
disability benefits. Seventh Street Road Tobacco Warehouse v. Stillwell,
550 S.W.2d 469 (Ky. 1976); Colwell v. Dresser Instrument Div., 217
S.W.3d 213 (Ky. 2006).
Heightchew
emphasizes the restrictions recommended by Dr. McEldowney,
and the fact he is left-hand dominant.
He also highlights the fact he is 51 years old with a GED and a work
history consisting solely of physical labor.
However, the ALJ also took into consideration Dr. Napolitano’s opinion
as the treating physician. She released Heightchew to regular work with no restrictions, and her
records indicate physical therapy was successful in restoring full strength and
mobility. Dr. Lyon similarly opined Heightchew can return to his pre-injury work. This proof constitutes substantial evidence
upon which the ALJ could rely in considering whether Heightchew
has a permanent inability to perform any type of work. In light of this evidence, we cannot say the
proof compels a result Heightchew is permanently
totally disabled.
Heightchew
also makes a brief argument that he is entitled to enhanced benefits pursuant
to KRS 342.730(1)(c)1.
This provision permits enhanced permanent partial disability benefits
when a claimant lacks the physical capacity to return to the work he was
performing at the time of the injury.
Again, Dr. Napolitano’s opinion, along with the physical therapy
results, supports the ALJ’s conclusion that Heightchew
is physically capable of returning to his regular work without
restrictions. As such, the ALJ did not
abuse his discretion in denying enhanced benefits.
For the foregoing reasons,
the April 12, 2017 Opinion and Order and the May 9, 2017 Order on
Reconsideration rendered by Hon. Chris Davis, Administrative Law Judge, are
hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON THERESA GILBERT
177 N LIMESTONE
LEXINGTON, KY 40507
COUNSEL
FOR RESPONDENT:
HON GUILLERMO A CARLOS
444 WEST SECOND ST
LEXINGTON, KY 40507
ADMINISTRATIVE
LAW JUDGE:
HON CHRIS DAVIS
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
