January 15, 2016 201285818

Commonwealth of Kentucky 

Workers’ Compensation Board




OPINION ENTERED:  September 15, 2017



CLAIM NO. 201691517



WILLIAM HEIGHTCHEW                             PETITIONER


















                       * * * * * *



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.