*/
Workers’
Compensation Board
OPINION ENTERED: September 14, 2018
CLAIM
NO. 201685226
HAYATTE
KLEIER PETITIONER
VS. APPEAL FROM HON. JOHN H. MCCRACKEN,
ADMINISTRATIVE
LAW JUDGE
MACY’S
#562
and
HON. JOHN H. MCCRACKEN,
ADMINISTRATIVE
LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and
RECHTER, Members.
STIVERS, Member. Hayatte Kleier (“Kleier”) seeks review of the May 18,
2018, Opinion of Hon. John H. McCracken, Administrative Law Judge (“ALJ”),
finding she sustained a work-related right thumb injury on January 31, 2016,
while in the employ of Macy’s #562 (“Macy’s”). Relying upon the opinion of Dr.
Jeffrey Fadel, the ALJ found the right thumb injury generated a 3% permanent impairment
rating. The ALJ also concluded Kleier had not returned to work at the same or
greater wages than at the time of the injury. However, the ALJ concluded Kleier
did not retain the capacity to return to the type of work she was performing at
the time of her injury and enhanced her income benefits by the three
multiplier. The ALJ dismissed claims for a work-related left hand and upper
extremity injury, CRPS, and Raynaud’s phenomenon of the right upper extremity. The
ALJ awarded temporary total disability (“TTD”) benefits from September 27,
2016, the date Kleier underwent right thumb surgery through December 6, 2016,
when Dr. Thomas Gabriel determined she attained maximum medical improvement (“MMI”).
The ALJ awarded permanent partial disability benefits and medical benefits for
the right thumb injury. Kleier also appeals from the June 12, 2018, Order
overruling her petition for reconsideration.
On
appeal, Kleier contends the ALJ erred by not awarding TTD benefits from May 29,
2016, through September 26, 2016, the day before she underwent right thumb surgery.
Kleier argues that, during this period, she had not reached MMI and was
awaiting surgery. Kleier asserts the ALJ never addressed her entitlement to TTD
benefits prior to the surgery. Kleier notes she came under the care of Dr.
Ethan Blackburn in March 2016 and he immediately placed her on one-handed duty.
She contends Dr. Blackburn continued to restrict her work throughout her
monthly visits in March, April, May, and June, and on two occasions in July
2016. Kleier notes surgery requests were made after the August 29, 2016, visit,
and during this time she was unable to perform her work with Macy’s and had not
reached MMI. Even though she continued to perform her baby-sitting and tutorial
job, Kleier argues she is entitled to an award of TTD benefits during the
period in question.
BACKGROUND
Kleier’s
Form 101 alleged she injured her right thumb as follows: “I was working and pushed
drawer and injured my right thumb/hand when it was trapped. I also developed
left arm/hand problems from overuse.”[1]
During
her January 19, 2018, deposition, Kleier testified that, after moving to the
United States in November 2007, she worked at Baptist East Hospital in the
cafeteria. Thereafter, she was hired as a tutor and baby-sitter for two young
brothers. When the two brothers started school, she obtained a part-time job at
Macy’s as a beauty advisor. Kleier continued tutoring the two brothers after
she began working part-time at Macy’s. Her job as a tutor involved picking up
the two brothers from school and going to the library to work on their
homework. She was paid $408.00 weekly as a tutor. She testified Macy’s offered
her a job because she could work primarily on the weekends. Her job as a beauty
advisor involved applying makeup and advising customers on skin care and makeup.
She also cleaned and organized her work area. She was paid by the hour plus
commission.
After
her work injury, she was treated by Norton Immediate Care Center on February 2,
2016. Following the injury, she continued to work at Macy’s under restricted
duty. She described her post-injury work as follows:
Q:
Okay. And how often would you say that you—that you did work after the injury?
A:
So because I was senting [sic] – I was being sent back to work with
restrictions, I was trying to go back and work with restrictions.
Q:
Yes.
A:
-- doing all the tasks that my manage – manager was telling me to do, like, you
know, phone calls, all with my left hand, compensating with my left hand since
my right hand was either in that cast for the first wee [sic] – week or after
that in splints.
Q:
Okay.
A: So I was going back
as much as I could.
Q:
Okay. So would you say that it was every day of the week or . . .
A: To Macy’s?
Q: Yes.
A:
Oh, no. No. No. Macy’s, my hours were limited to mostly Friday, the late shift
Friday night –
Q: Okay.
A: -- Saturday, and Sunday.
Q: So about three days a week –
A: Yes.
Q: -- part-time?
A: I – I’ve always been part-time –
Q: Okay.
A: -- at Macy’s, always.
After
the injury, Kleier continued to pick up the two brothers from school, take them
to the library, and help with their homework.
Ultimately,
she came under the treatment of Dr. Blackburn, a hand specialist. Upon
realizing she had been incorrectly referred to a physical therapist, Dr.
Blackburn referred her to an occupational therapist. Kleier testified that,
until she stopped working at Macy’s on May 28, 2016, she greeted the customers
and secured a beauty advisor for them. She provided the following reasons for
quitting her job at Macy’s:
Q:
And you did this – you worked – you continued working there, I’m guessing,
until May 28th; is that correct?
A:
So here – if I may, here what – what happened. So I was seeing – sending – I –
I was being sent back with restrictions, and at some point I was uncomfortable
in pain all over my shoulder and my arm because I was on the floor constantly
guarding my arm and my hand.
I was scared that somebody would
bump into it. I was scared by instinct I would reach for something or – I was
concerned about my – my arm. So I started to use my paid time off that I had
accumulated that whole time working for Macy’s.
Q:
Okay.
A:
So I started to use my paid timed [sic] off because I wanted to protect myself,
to not be on the floor or not be in the office making phone calls for three,
four hours in a row, and at the same time my left arm was getting tired, tired
for compensating. So here I was in constant pain with my right hand, right arm,
and then developing something on the left hand, which started probably in June.
So I used all my time paid off and
then I decided that I could not go back –
After
she ceased working for Macy’s on May 28, 2016, Kleier took a job working for
Randstad for a short period of time. She provided the following testimony
concerning her duties with Randstad:
Q:
Have you worked anywhere, other than for Ms. Fernandez, since you left Macy’s?
A:
Yes, twice. Remember, we talked on the phone about that. So in the building of
Macy’s, the day I quit, apparently – because I worked for the counter called
bareMin – can I – it needs some explanation.
I worked for bareMinerals – for the
counter bareMinerals in Macy’s, so apparently when I quit, the Macy’s executive
of the region noticed that I quit. So she did reach out to me and said – and
said, well, would you like to work smaller shifts, not for Macy’s, for
Randstad.
Q:
Okay.
A:
Would you like to try to work smaller shifts, like for example, 11:00 – 12:00
to 5:00 and see now [sic] it works? I tried it two –
Q:
And how long did that last?
A:
Maybe two or three times.
Q:
Okay. Is that two or three days or two –
A:
Shift. When I say times, it means shifts like –
Q:
And you said you worked somewhere else?
A:
That’s what I’m talking about.
Q:
That was it?
A:
Because its –
Q:
Just the one place?
A:
-- not Macy’s. It’s Randstad, yes.
Q:
Is that the only place that you’ve worked?
A:
Yes.
.
. .
Q:
Okay. I think that’s – and can you clarify one more time about the – you said
you worked somewhere else after Macy’s. Was it Randstad?
A:
Randstad.
Q:
Randstad?
A:
Would you like me to spell it for you?
Q:
Yes, please.
A:
It’s R-A-N-S-T-A-D (sic).
Q:
Okay. And you may have answered this already. I apologize if so. I just wanted
to clarify. What were – what were your duties at this job and –
A:
Exactly the same thing.
Q:
Okay.
A:
Beauty adviser.
Q:
Okay.
A:
So when I quit Macy’s, the – I think that I told you is the manager executive
for the region of bareMinerals, because working in the building of Macy’s, I
was working for the counter bareMinerals.
Q:
Uh-huh.
A:
So she reached out to me when she heard that I was not at Macy’s anymore, and I
explained to her why, because I could not do these long shifts anymore So she
did ask me, would you like to try to work for us smaller shifts, and I tried probably
twice in the building of Macy’s at the very same counter and once at Ulta, but
I couldn’t.
This is when I realized even just
the smaller shifts, I just couldn’t.
Q:
Okay. And this was after you’d already resigned - -
A:
Right after.
Q:
from Macy’s?
A:
Oh, yeah. Like a month or a month and a half.
Since
her deposition, Kleier’s only employment has been as a tutor for the two
brothers.
Norton
Healthcare medical records reflect as early as March, Dr. Blackburn allowed
Kleier to return to left hand work. A Physical Capabilities document indicates
Kleier could return to left hand only work on March 18, 2016.
The
April 15, 2016, record of Norton Healthcare reveals Dr. Blackburn imposed light
duty work restrictions, and Kleier was to wear a brace if needed at work. As of
April 15, 2016, Kleier was returned to light duty work which comprised of a maximum
lifting weight of 20 pounds, frequent lifting or carrying with both hands of 10
pounds or less, and the use of a brace if needed.
Dr.
Blackburn’s May 13, 2016, note reflects Kleier could continue light duty work, but
if her symptoms continued, he would consider moving forward with work
restrictions at the next visit. The Physical Capabilities document dated May
13, 2016, restricted Kleier to performing light duty work with a 20-pound
maximum lifting weight and frequent lifting or carrying of 10 pounds or less with
both hands.
Dr.
Blackburn’s June 10, 2016, note reveals Kleier reported increased strength and
range of motion since completing therapy. As a result, he referred her to
occupational therapy. The note states Dr. Blackburn reassured Kleier that using
her hand normally will not cause harm, and she should learn to trust the hand
again. Dr. Blackburn recommended a work-conditioning program and switched her
restrictions to medium duty work. There would be a follow-up in four weeks at
which time he would release her to full duty. Consistent with that medical
record, the Physical Capabilities document reflects Kleier was returned to medium
duty work on June 10, 2016, with restrictions of lifting 20 to 50 pounds but
frequent lifting or carrying of only 10 to 25 pounds using both hands.
The
July 1, 2016, note reflects Kleier experienced complete relief following a
previous right thumb trigger digit injection. She complained of recurrent pain
and stiffness localized in the palm and affected digit. She also experienced
catching and locking. There was associated numbness and tingling. The pain was
worse with gripping and grasping. Dr. Blackburn was to follow-up in four weeks.
He continued her medium duty restrictions. A Physical Capabilities document
dated July 1, 2016, reflects Kleier was returned to medium duty.
A
July 29, 2016, office note reveals Kleier reported mild pain and decreased
range of motion in her right thumb. She had received right thumb trigger
injections in April and July and had good relief of her symptoms. She reported
the clicking and locking had improved but her pain was persistent. Dr.
Blackburn restricted Kleier to medium duty work and would recheck her in four
weeks. She was to call if she wished to schedule surgery. A July 29, 2016, Physical Capabilities note
reflects Kleier was again returned to restricted activities at medium
duty.
The
August 29, 2016, note of Dr. Blackburn reveals Kleier rated her discomfort as
moderate to severe. Her pain was worse with pinching and grasping. Under
“Assessment,” Dr. Blackburn continued her medium work duty restriction and
indicated he specifically discussed with Kleier her atypical symptoms including
achy, radiating forearm and arm pain. He believed the trigger thumb did not
explain these symptoms. He noted surgery was designed to relieve discomfort at
the base of the thumb and any associated mechanical symptoms. The Physical
Capabilities note of August 29, 2016, again reflects Kleier was returned to
medium duty.
The
September 27, 2016, operative report reveals the pre-operative and
post-operative diagnosis was trigger finger. Dr. Blackburn performed a right
trigger thumb release.
In
a September 27, 2016, note, Dr. Blackburn stated as follows: “It is my medical
opinion that Hayatte Yousfi Kleier is out of work until 10/30. She may return
to strict one handed duty at that time. If there is no work available, then
consider off of work until re-evaluated.”
The
March 14, 2018, Benefit Review Conference Order & Memorandum reflects the
parties stipulated TTD benefits were paid at varying rates from May 8, 2016, to
May 14, 2016, from May 15, 2016, to May 21, 2016, and May 22, 2016, to May 28,
2016. The contested issues were “Work-related injury/causation; Permanent
income benefits per KRS 342.730; TTD benefits; Wages upon return to work;
Current wages; Ability to return to work; and Unpaid or contested medical
expenses.” Under “Other contested issues” was “Work Related injury/causation
except for right thumb, Plaintiff’s unreasonable failure to follow medical
advice.”
ALJ’S DECISION
In
the May 18, 2018, decision, the ALJ provided the following relevant summary of
Kleier’s testimony:
Ms. Kleier sought treatment for her right thumb injury.
Initially, she received treatment from Norton Immediate Care Center and was
later treated by Dr. Ethan Blackburn. She did not report any left hand or left
arm symptoms to Dr. Blackburn until October 10, 2016. She stated that in August
2016, she told Dr. Lang of her left hand problems and that he diagnosed
probable tendonitis caused by overcompensation with the left hand.
At the hearing, Ms. Kleier testified that her right hand
and arm had been isolated for months and she was not able to properly use it.
She stated that from the last day of January 2016 to the time of her right
thumb surgery she used only her left hand causing overuse. She gave examples of
washing her hair, washing herself, writing, opening doors, and cooking. She
states that she still has to adjust her grip. She quit working for Defendant
due to the pain she was experiencing.
The day she quit working for Macy’s, she was approached
by a Macy’s executive and asked to work for Randstad and take care of the Bare
Minerals in smaller shifts. At the hearing, Ms. Kleier stated that her job
duties with Randstad as a beauty adviser were the same as with the Defendant.
It is unclear from her testimony, but it appears as though she quit the job with
Randstad shortly after she began work. She wrote a letter to Defendant and
stated that she had another full-time job and was having difficulty combining
it with the part-time work for Defendant.
Ms. Kleier received two right thumb injections by Dr.
Blackburn which were followed by a trigger release on September 27, 2016. She
was seen by Dr. Bradley Duncan for her left hand. She stated that she needed to
see a hand surgeon and that he could not offer any help. She next saw Dr.
Shatford, who performed surgery on her left hand for tendinitis on May 9, 2017.
She has not received any further treatment since that time. She testified that
the right thumb surgery was helpful. She asserted that she still has problems
all the time with both her right and left hands. She stated that since the
right thumb surgery, she has been unable to fold her thumb as well as she did
before the surgery.
The ALJ’s decision
contained, in relevant part, the following summary of the records from Dr.
Blackburn and Norton Immediate Care Center:
C.
DR. ETHAN BLACKBURN
Ms. Kleier filed the medical records of Dr. Blackburn dated
August 2, 2016 to November 14, 2016. He performed right thumb trigger finger
surgery on September 27, 2016. He removed her from work from the date of
surgery until October 30, 2016. He released her to one hand, medium duty work
at that time.
On October 10, 2016, Ms. Kleier reported
new symptoms of left wrist pain over the prior month. This was specifically
described as a new problem, post-operative time frame. She rated the pain as severe and
radiating into the forearm. Dr. Blackburn stated that left wrist pain was most
likely consistent with de Quervain’s tendinitis and that it was possible that
over use of the left hand and wrist during restriction of the right thumb could
have caused this condition. He injected the left 1st dorsal compartment. On her
next office visit, she complained of continued shoulder weakness and fatigue
which Dr. Blackburn did not attribute to the work injury.
F.
NORTON IMMEDIATE CARE CENTER
. . .
On April 15, 2016, Dr. Blackburn release her to return to
light duty work with a maximum lifting of 20 pounds and restrictions to 10
pounds with frequent lifting or carrying using both hands. She was to wear a
brace as needed. On June 10, 2016, she was released to return to medium duty
work. This allowed her to lift a maximum of 20 to 50 pounds but restricted her
to 10 to 25 pounds with frequent lifting or carrying using both hands. On July
1, 2016, Ms. Kleier advised Dr. Blackburn that she experienced 100% from the
right thumb injection. She had catching and locking in the thumb on this visit.
As of July 29, 2016, she remained on medium duty restrictions.
Concerning Kleier’s entitlement to
TTD benefits, the ALJ found the following:
In Ms. Kleier’s case, the ALJ may only look to her wages at
Macy’s for determining the appropriate rate of TTD since she continued to work
her job as a tutor/babysitter. Ms. Kleier’s TTD, based upon her AWW from her
work at Macy’s, should have been paid at the rate of $448.73 per week. She was
paid at the varying rates of $282.17, 350.20 and 303.22 for the periods she
received TTD as stipulated to in the BRC order. The ALJ finds that Ms. Kleier
was underpaid TTD for each of the weeks she received TTD. The ALJ finds that
the correct weekly TTD rate was $448.73. Ms. Kleier is entitled to the
difference of $448.73 and what was actually paid during the periods of time she
received TTD.
Dr. Blackburn removed Ms. Kleier from work from September
27, 2016 to October 30, 2016 due to her right thumb surgery. She was restricted
to one hand work following this time period until she could be re-evaluated.
Dr. Gabriel placed her at MMI for the right thumb injury on December 6, 2016.
He assessed a permanent injury as of that date.
The ALJ relies upon Dr. Blackburn and Dr. Gabriel to find
that Ms. Kleier is entitled to additional TTD from September 27, 2016 to
December 6, 2016 at the rate of $448.73 per week. This provides TTD from the
date of her right thumb surgery through the date of MMI.
Kleier filed a petition for reconsideration asserting the
ALJ erred in the award of TTD benefits as the ALJ did not award TTD benefits
from May 29, 2016, through September 26, 2016, because she had not reached MMI
and was awaiting surgery on September 27, 2016. Kleier observed she first came
under the care of Dr. Blackburn in March 2016 and he immediately placed her on one-handed
duty. He kept her on restricted work throughout her visits in March, April,
May, June, and on two occasions in July. Kleier asserted the surgery request
was made after an August 29, 2016, visit. Kleier did not request additional
findings or take issue with the accuracy of the ALJ’s findings. Finding the
petition for reconsideration to be a re-argument and a request for the ALJ to
reconsider the decision with no patent error identified, the ALJ overruled the
petition for reconsideration.
ANALYSIS
KRS 342.0011(11)(a) defines temporary total
disability as follows:
‘Temporary total disability’ means the condition of an employee
who has not reached maximum medical improvement [MMI] from an injury and has
not reached a level of improvement that would permit a return to
employment.
The above definition has been determined by
our courts of justice to be a codification of the principles originally
espoused in W.L. Harper Construction Company v. Baker, 858 S.W.2d 202
(Ky. App. 1993), wherein the Kentucky Court of Appeals stated generally:
TTD is payable until the medical evidence establishes the
recovery process, including any treatment reasonably rendered in an effort to
improve the claimant's condition, is over, or the underlying condition has
stabilized such that the claimant is capable of returning to his job, or some
other employment, of which he is capable, which is available in the local labor
market. Moreover, . . . the question presented is one of fact no matter how TTD
is defined.
Id. at 205.
In Central Kentucky Steel v. Wise,
19 S.W.3d 657 (Ky. 2000), the Kentucky Supreme Court further explained that
“[i]t would not be reasonable to terminate the benefits of an employee when he
is released to perform minimal work but not the type that is customary or that
he was performing at the time of his injury.” Id. at 659. In other
words, where a claimant has not reached MMI, TTD benefits are payable
until such time as the claimant’s level of improvement permits a return to the
type of work he was customarily performing at the time of the traumatic
event.
In Magellan
Behavioral Health v. Helms, 140 S.W.3d 579 (Ky. App. 2004), the Court of
Appeals instructed that until MMI is achieved, an employee is entitled to a
continuation of TTD benefits so long as he or she remains disabled from his or
her customary work or the work he or she was performing at the time of the
injury. The Court in Magellan, supra,
stated:
In order to be entitled to temporary total disability benefits,
the claimant must not have reached maximum medical improvement and not have
improved enough to return to work.
. . .
The second prong of KRS 342.0011(11)(a) operates to deny
eligibility to TTD to individuals who, though not at maximum medical
improvement, have improved enough following an injury that they can return to
work despite not yet being fully recovered. In Central Kentucky Steel v. Wise,
[footnote omitted] the statutory phrase ‘return to employment’ was interpreted
to mean a return to the type of work which is customary for the injured
employee or that which the employee had been performing prior to being injured.
Id. at 580-581.
In Double L
Const., Inc. v. Mitchell, 182 S.W.3d 509, 513-514 (Ky. 2005), with
regard to the standard for awarding TTD benefits, the Supreme Court elaborated
as follows:
As defined by KRS 342.0011(11)(a), there are two requirements
for TTD: 1.) that the worker must not have reached MMI; and 2.) that the worker
must not have reached a level of improvement that would permit a return to
employment. See Magellan Behavioral Health v. Helms,
140 S.W.3d 579, 581 (Ky. App. 2004). In the present case, the employer has made
an ‘all or nothing’ argument that is based entirely on the second requirement.
Yet, implicit in the Central
Kentucky Steel v. Wise, supra, decision is that, unlike the definition of
permanent total disability, the definition of TTD does not require a temporary
inability to perform ‘any type of work.’ See KRS 342.0011(11)(c).
. . .
Central Kentucky Steel v. Wise, supra, stands for the principle that if a worker
has not reached MMI, a release to perform minimal work rather than ‘the type
that is customary or that he was performing at the time of his injury’ does not
constitute ‘a level of improvement that would permit a return to employment’
for the purposes of KRS 342.0011(11)(a). 19 S.W.3d at 659.
More recently,
in Livingood v. Transfreight, LLC, et, al., 467 S.W.3d 249 (Ky.
2015), the Supreme Court declined to
hold a claimant is entitled to TTD benefits so long as he or she is unable to
perform the work performed at the time of the injury. The Court stated, “... we reiterate today, Wise does not ‘stand for the
principle that workers who are unable to perform their customary work after an
injury are always entitled to TTD.’” Id. at 254.
Finally, in Trane
Commercial Systems v.
Tipton, 481 S.W.3d
800 (Ky. 2016), the Kentucky Supreme Court clarified when TTD benefits
are appropriate in cases where the employee returns to modified duty. The
Supreme Court stated as follows:
As we have previously held, “[i]t would not be reasonable to
terminate the benefits of an employee when he is released to perform minimal
work but not the type [of work] that is customary or that
he was performing at the time of his
injury.” Central Kentucky Steel v. Wise, 19 S.W.3d at 659. However, it
is also not reasonable, and it does not further the purpose for paying income
benefits, to pay TDD benefits to an injured
employee who has returned to employment simply because the work
differs from what she performed at the time of injury. Therefore, absent extraordinary
circumstances, an award of TDD benefits is inappropriate if an injured employee
has been released to return to customary employment, i.e. work within her
physical restrictions and for which she has the experience, training, and
education; and the employee has actually returned to employment. We do not
attempt to foresee what extraordinary circumstances might justify an award of
TDD benefits to an employee who has returned to employment under those
circumstances; however, in making any such award, an ALJ must take into
consideration the purpose for paying income benefits and set forth specific
evidence-based reasons why an award of TDD benefits in addition to the
employee's wages would forward that purpose.
Id. at 807.
The ALJ awarded TTD benefits, in addition
to those already paid, from September 27, 2016, the date of surgery through
December 6, 2016. In initiating TTD benefits on September 27, 2016, the ALJ
relied upon Dr. Blackburn’s September 27, 2016, note in which he stated Kleier “is
out of work until October 30, 2016,” and could return to strict one-handed duty
at that time. The ALJ terminated her TTD benefits on December 6, 2016, when Dr.
Gabriel determined she was at MMI.
The ALJ correctly determined the date of
MMI based on the medical evidence. However, his analysis regarding the second
prong of the statute as to whether Kleier had reached a level of improvement
which would permit a return to employment is limited. In his summary of the
evidence, the ALJ noted the records of Norton Immediate Care Center reflect
that, in April 2016, Dr. Blackburn released Kleier to light duty work with
lifting limitations. He also noted Kleier was allowed to resume medium duty
work in June, and Dr. Blackburn continued the medium duty restrictions at least
through June 29, 2016. We note the ALJ did not summarize in depth the medical
records of Norton Immediate Care Center set forth herein. However, those
records reveal Kleier was no longer limited to one-handed duty. Further
complicating this issue is that, in her brief to the ALJ, Kleier’s argument concerning
her entitlement to TTD benefits consists exclusively of the following:
Again,
based upon the testimony of Dr. Jeffrey Fadel and that of the Claimant, the
Administrative Law Judge should award a 6% impairment and in addition that
should be modified by a 3 factor as the Claimant cannot return to the work she
performed at the time of the injury. Benefits should be suspended for the
period that temporary total disability benefits were voluntarily paid, 5/8/16
to 5/28/16 and from 5/29/16 through 7/1/17 or at least from 5/29/16 to 11/1/16
and again from 5/9/17 through 7/1/17.
The last sentence of her argument
is confusing. However, one interpretation is that Kleier is arguing for a
suspension of her benefits during the period her TTD benefits were voluntarily
paid from May 8, 2016, through May 28, 2016, and she is entitled to additional
TTD benefits from May 29, 2016, through November 1, 2016, and from May 9, 2017,
through July 1, 2017. Kleier did not provide an argument explaining to the ALJ
the basis for her contention she was entitled to such an award. Also, Kleier
did not request additional findings of fact or a more explicit ruling in her
petition for reconsideration as required by KRS 342.281 and KRS 342.285. While
this Board is aware of the fact that, in determining Kleier’s entitlement to
TTD benefits, the ALJ was required to provide an adequate basis to support his
determination, Kleier’s failure to request additional findings means the issue
is not properly preserved for review by this Board. See Cornett v. Corbin Materials, Inc., 807 S.W.2d 56 (Ky.
1991); Bullock v. Goodwill Coal Co., 214 S.W.3d 890, 893 (Ky. 2007)
(failure to make statutorily-required findings of fact is a patent error which
must be requested in a petition for reconsideration in order to preserve
further judicial review).
On appeal, Kleier cannot, for
the first time, set forth an argument supporting an award of TTD benefits from
May 29, 2016, through September 26, 2016. Our task on appeal, therefore,
is to determine whether substantial evidence supports the ALJ’s decision. As
the ALJ noted in his summary of the evidence, Dr. Blackburn imposed certain
work restrictions and did not direct Kleier should remain off work prior to
September 27, 2016. Not until September 27, 2016, the date of surgery, did Dr.
Blackburn state Kleier should remain off work. Thus, the ALJ could reasonably
conclude Kleier had not satisfied the second prong of KRS 342.0011(11)(a), as
it appeared she had improved enough following the injury that she could return
to work despite not having fully recovered. As noted by the ALJ, the medical
records reveal the first time Dr. Blackburn indicated Kleier should remain off
work was September 27, 2016. The records also reveal prior to September 27,
2016, Dr. Blackburn had specifically indicated Kleier could work but with certain
restrictions. Importantly, the record indicates Kleier’s restriction of
one-handed work does not fall within the time period Kleier now asserts she is
entitled to additional TTD benefits. As
substantial evidence supports the ALJ’s decision not to award additional TTD
benefits until after the September 27, 2016, surgery, this Board has no
authority to disturb the ALJ’s decision.
Accordingly, as substantial evidence
in the form of Dr. Blackburn’s records and the records of Norton Immediate Care
Center constitute substantial evidence in support of the ALJ’s determination
that Kleier is only entitled to TTD benefits from September 27, 2016, to
December 6, 2016, the ALJ’s decision must be AFFIRMED.
ALL
CONCUR.
DISTRIBUTION:
METHOD
COUNSEL FOR PETITIONER: LMS
HON
WAYNE C DAUB
600
W MAIN ST STE 300
LOUISVILLE
KY 40202
COUNSEL FOR RESPONDENT: LMS
HON
JAMES G FOGLE
610
S FOURTH ST STE 701
LOUISVILLE
KY 40202
ADMINISTRATIVE LAW
JUDGE: LMS
HON
JOHN H MCCRACKEN
657
CHAMBERLIN AVE
FRANKFORT
KY 40601
[1] As the only issue on appeal relates to the
right thumb injury, we will not discuss the other alleged work injuries.
