Opinion
NO. 2018-CA-001460-WC
10-25-2019
HAYATTE KLEIER APPELLANT v. MACY'S #562; HONORABLE JOHN H. MCCRACKEN, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Wayne C. Daub Louisville, Kentucky BRIEF FOR APPELLEE MACY'S #562: James G. Fogle Louisville, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-16-85226 OPINION
AFFIRMING
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BEFORE: JONES, KRAMER, AND K. THOMPSON, JUDGES. THOMPSON, K., JUDGE: Hayatte Kleier appeals from an opinion and order of the Workers' Compensation Board affirming the Administrative Law Judge's (ALJ's) opinion denying temporary total disability (TTD) benefits from May 29, 2016 through September 26, 2016. Hayatte argues during that time, she had not reached maximum medical improvement (MMI) and was not capable of performing her regular work.
Hayatte was born in France on August 18, 1966, and moved to Louisville, Kentucky, in 2007. She worked as a cafeteria worker and as a travel agent before being employed part-time by Macy's as a beauty advisor. Her duties were providing customer service, applying makeup, advising customers on skin care, and cleaning and organizing. At that same time, Hayatte was also a tutor and babysitter for Dr. Lucie Fernandez. During the time period in question, she continued to earn the same pay from Dr. Fernandez and performed the same work duties.
On January 31, 2016, Hayatte closed her right thumb in a large cosmetic drawer. She first sought medical treatment on February 2, 2016, at Norton Immediate Care Center. She later returned to part-time work with restrictions. She performed tasks such as answering phone calls with her left hand because her right hand was in a cast for one week and then splints. Hayatte was able to greet customers and secure a beauty advisor for customers. Hayatte continued to work at Macy's until May 28, 2016, when after using her paid time off, she voluntarily resigned.
A short time after she resigned from Macy's, Hayatte began working for Randstad as a beauty advisor in shorter shifts than at Macy's. She testified that she could not work those shorter shifts because of pain and resigned from that employment.
Norton Healthcare records reflect that in March 2016, Dr. Ethan Blackburn, a hand specialist, released Hayatte to return to left-handed work. A physical capabilities document indicates she could return to left-handed work on March 18, 2016.
An April 15, 2016, Norton Healthcare record reveals that Dr. Blackburn imposed light duty work restrictions and Hayatte was to wear a brace if needed. She was restricted to maximum lifting of 20 pounds, frequent carrying with both hands of 10 pounds or less, and use of a brace, if needed.
Dr. Blackburn's May 13, 2016, note reflected Hayatte could continue light-duty work. A physical capabilities document dated May 13, 2016, restricted Hayatte to performing light-duty work with a 20-pound-maximum-lifting weight and frequent lifting or carrying 10 pounds or less with both hands.
In June of 2016, Dr. Blackburn noted increased strength and range of motion. Dr. Blackburn advised Hayatte that using her right hand normally would not cause further harm. He changed her restrictions to medium-duty work. He would follow up in four weeks at which time Dr. Blackburn would release her to full duty. A physical capabilities document reflects Hayatte was released to medium 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.
Hayatte returned to Dr. Blackburn on July 1, 2016. His notes reflect that Hayatte experienced complete relief following a previous right thumb trigger digit injection. However, she complained of pain and stiffness in her right palm and thumb. The pain was worse with gripping and grasping. Dr. Blackburn continued her medium-duty restrictions.
On July 29, 2016, Dr. Blackburn noted mild pain and decreased range of motion in her right thumb. Dr. Blackburn continued Hayatte's medium duty restrictions.
On August 29, 2016, Hayatte reported to Dr. Blackburn that she had moderate to severe pain in her thumb and in her forearm and arm pain. Dr. Blackburn's notes indicate that the thumb injury did not explain these symptoms. Hayatte was continued on medium-duty restrictions.
On September 27, 2016, Dr. Blackburn performed right thumb trigger surgery on Hayatte. He restricted her from work from that date until October 30, 2016. At that time, he released her to one-hand, medium-duty work.
On October 10, 2016, Hayatte reported to Dr. Blackburn new symptoms of left wrist pain. Dr. Blackburn stated that left wrist pain was most likely consistent with de Quervain's tenosynovitis and it was possible that overuse 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 visit, she complained of continued shoulder weakness and fatigue which Dr. Blackburn did not attribute to the work injury. She continued treatment from Dr. Blackburn but did not report her left hand symptoms until October 2016, although she testified she reported her left hand symptoms to her primary care doctor in August 2016. According to Hayatte, he diagnosed her with tendinitis believed to be caused from overcompensation with her left hand.
She then saw Dr. Russell Shatford who performed surgery on her left hand for tendinitis on May 9, 2017. She has not received any further treatment or physical therapy since that time and uses over-the-counter ibuprofen for pain.
Dr. Thomas Gabriel, a hand surgeon, performed an independent medical evaluation (IME) on December 6, 2016. He opined that Hayatte's left wrist tendinitis was not related to her January 13, 2016, work injury to her right thumb or any subsequent treatment. He explained that Hayatte had hypothyroidism, which he opined was the cause of her left wrist condition. He opined that Hayatte had reached MMI and she was physically capable of returning to work without restrictions. He assessed a 1% impairment rating of the right thumb injury.
Dr. Jeffrey Fadel performed an IME on February 8, 2018. He diagnosed post-traumatic stenosing tenosynovitis of the right thumb, caused by the January 31, 2016, work injury and stenosing tenosynovitis of the first dorsal compartment left wrist, caused from overuse secondary to restricted one-handed duty as a result of the January 31, 2016, work injury and chronic right upper extremity edema with mild Raynaud's phenomenon from long-term immobilization as a result of the work injury. Dr. Fadel opined that Hayatte was at MMI and initially issued a 3% impairment rating using the loss of motion to the right thumb. However, he assessed an additional 3% reflecting the dysesthesia experienced in the entire right upper extremity for a 6% impairment with permanent restrictions of no repetitive flexion or extension of the wrist, no repetitive fine manipulation or fingering activities, not lifting more than 10 pounds, and no repetitive pinching activities.
The ALJ found that the right thumb injury generated a 3% impairment rating and concluded that Hayatte did not retain the capacity to return to any type of work she was performing at the time of her injury and enhanced her income benefits by the three multiplier. The ALJ dismissed Hayatte's claims for work-related left hand and upper extremity injury.
Concerning Hayatte's entitlement to TTD benefits, the ALJ found as follows:
Dr. Blackburn removed [Hayatte] 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 [Hayatte] 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.
Hayatte filed a petition for reconsideration asserting the ALJ erred because the ALJ did not award TTD benefits from May 29, 2016 through September 26, 2016, when she had not reached MMI and was awaiting surgery on September 27, 2016. Hayatte did not request additional findings or disagree with the accuracy of the ALJ's finding. Finding the petition for reconsideration to be a re-argument, the petition was denied. The Board affirmed, and this appeal followed.
Kentucky Revised Statutes (KRS) 342.0011(11)(a) defines temporary total disability as "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[.]" What constitutes a "return to employment" has been the subject of numerous judicial opinions.
In Central Kentucky Steel v. Wise, 19 S.W.3d 657, 659 (Ky. 2000), the Court cautioned that "return to employment" does not mean when the employee is "released to perform minimal work but not the type that is customary or that he was performing at the time of [the employee's] injury." That holding was reaffirmed in Double L Construction, Inc. v. Mitchell, 182 S.W.3d 509, 513 (Ky. 2005) (quoting KRS 342.0011(11)(c)), where the Court noted that "unlike the definition of permanent total disability, the definition of TTD does not require a temporary inability to perform 'any type of work.'"
In Livingood v. Transfreight, LLC, 467 S.W.3d 249 (Ky. 2015), the Supreme Court clarified its earlier opinions interpreting "return to employment." Livingood injured his shoulder on September 16, 2009, while operating a forklift for Transfreight and underwent two surgeries. He was off work from November 11, 2009 through March 2, 2010, when he returned to work on light duty. Id. at 252. On October 5, 2010, Livingood underwent a third surgery and was off work again until December 13, 2010, when he returned to work without restrictions. Id. Livingood was discharged from Transfreight on December 23, 2010. The ALJ denied Livingood's claim for TTD benefits during the time he worked light duty, noting that Livingood performed the majority of his light-duty tasks as part of his pre-injury regular-duty job. Id. at 253.
Livingood argued on appeal that he was entitled to additional TTD benefits while on light duty because he was not performing his customary work as a forklift operator and relied on Wise and Double L Construction. Id. at 254. Responding to his argument, the Court clarified its holding in Wise stating that opinion "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. (quoting Advance Auto Parts v. Mathis, No. 2004-SC-000146-WC, 2005 WL 119750 at *3 (Ky. Jan. 20, 2005)).
Later, in Trane Commercial Systems v. Tipton, 481 S.W.3d 800, 807 (Ky. 2016), the Supreme Court further explained when a TTD award is or is not proper when an employee has not reached MMI but has reached a level of improvement sufficient to permit a return to employment.
[W]e 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." [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 TTD 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 TTD 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 TTD 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 TTD benefits in addition to the employee's wages would forward that purpose.
Applying the law cited, the Board accurately summarized the evidence presented to the ALJ as to Hayatte's period of TTD as follows:
Dr. Blackburn imposed certain work restrictions and did not direct [Hayatte] should remain off work prior to September 27, 2016. Not until September 27, 2016, the date of surgery, did Dr. Blackburn state [Hayatte] should remain off work. Thus, the ALJ could reasonably conclude [Hayatte] 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 [Hayatte] should remain off work was September 27, 2016. The records also reveal prior to September 27, 2016, Dr. Blackburn had specifically indicated [Hayatte] could return to work but with certain restrictions. Importantly, the record indicates [Hayatte's] restrictions on one-handed work does not fall within the time period [Hayatte] now asserts she is entitled to additional TTD benefits.The Board determined that the evidence recited constituted substantial evidence to support the ALJ's decision.
Applying the meaning of "return to employment" as used in KRS 342.0011(11)(a), we also conclude that there is substantial evidence to support the finding that Hayatte was not entitled to TTD benefits from May 29, 2016 through September 26, 2016. Although during the time period in question, Hayatte was restricted first to light duty and then medium duty, she returned to her pre-injury work at Macy's until she resigned that position.
For the reasons stated, the opinion and order of the Workers' Compensation Board is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Wayne C. Daub
Louisville, Kentucky BRIEF FOR APPELLEE MACY'S
#562: James G. Fogle
Louisville, Kentucky