No. 10-81102. SHAWN EDWARD HERTEL PETITIONER VS. FLINT GROUP NORTH AMERICA and HON. CHRIS DAVIS,.

• Case Date: September 27, 2011
• Court: Kentucky

Kentucky Workers Compensation 2011. No. 10-81102. SHAWN EDWARD HERTEL PETITIONER VS. FLINT GROUP NORTH AMERICA and HON. CHRIS DAVIS, SHAWN EDWARD HERTEL PETITIONER VS. FLINT GROUP NORTH AMERICA and HON. CHRIS DAVIS, ADMINISTRATIVE LAW JUDGE RESPONDENTS OPINION ENTERED: September 27, 2011CLAIM NO. 201081102APPEAL FROM HON. CHRIS DAVIS, ADMINISTRATIVE LAW JUDGEOPINION AFFIRMING * * * * * *BEFORE: ALVEY, Chairman, COWDEN and STIVERS, Members.COWDEN, Member. Shawn Edward Hertel ("Hertel") appeals from an opinion and order dated April 15, 2011, rendered by Administrative Law Judge ("ALJ") Chris Davis dismissing his application for workers' compensation benefits for failure to demonstrate he sustained a work-related injury to his right foot on July 11, 2010 while in the employment of Flint Group North America ("Flint"). Hertel also appeals from an order dated May 10, 2011 denying his petition for reconsideration. On appeal, Hertel contends the evidence overwhelmingly supports a finding he suffered an acute, work-related injury on July 11, 2010. Hertel testified in his discovery deposition taken on November 22, 2010 and at the formal hearing held on February 21, 2011. He began working at Flint on August 25, 2008 as a foreman. In 2010, he bid on a pigment operator position as a flusher. He described a flusher as a machine which turned press cakes into a solid or liquid in the manufacture of ink pigment. The job physically required climbing up and down stairs, running a hoist, driving a stand-up fork truck and swinging a hoe. Hertel testified on the injury date, he was working as a foreman which required him to be all over the plant and entailed a great deal of overtime. He specifically denied any foot pain prior to July 11, 2010. On the alleged injury date, he drove a forklift into the racks and then lifted his left foot off the dead man\'s brake while putting all his weight on his right foot to extend the forks, at which time he felt a pop in his right foot. At the time of the alleged injury, he was wearing steel toe work boots which he wore every day. After the injury, he got back on the forklift and performed his job. He went home that night, wrapped his foot in ice and elevated it. Hertel first sought medical attention on July 20, 2010 at a hospital emergency room where he was given a walker and crutches, as well as a prescription for Vicodin. He was then referred to Work Well for treatment which he received for one month. He eventually saw Dr. Shannon Elliott who put him back on a walker, took x-rays and scheduled a bone density test. He was then referred to Dr. Rogers on September 9, 2010, who put him on crutches and told him not to walk on his right foot. Dr. Rogers also prescribed a bone stimulator and noted if this treatment modality did not work, surgery would be contemplated. Hertel noted he continues to have a dull ache and a sharp pain a few times a day on the top and side of his right foot. Frank Hertel, Hertel\'s father, testified at the formal hearing. He testified prior to July of 2010, he never saw Hertel favoring his right foot or heard him complain of foot pain. After the work event, he stressed Hertel complained of foot pain and showed him his swollen ankle. Dr. Shannon Elliott completed a Form 107 on August 17, 2010. Dr. Elliott received a history of Hertel shifting his weight on his right foot and experiencing a pop, causing severe pain. Dr. Elliott diagnosed a fifth metatarsal fracture. He opined within a reasonable medical probability, Hertel's injury was the cause of his complaints. He assessed a 5% functional impairment rating pursuant to Chapter 17, Table 14 of the American Medical Association, Guides to the Evaluation of Permanent Impairment (AMA "Guides"). He noted Hertel did not have an active impairment prior to the injury. He further stressed Hertel had not reached maximum medical improvement ("MMI"). Dr. Elliott noted Hertel's job required constant climbing and walking. He opined Hertel did not retain the physical capacity to return to the type or work he performed at the time of the injury. He elaborated by noting that constant climbing and walking could place pressure on Hertel's foot. He also opined Hertel needed to minimize these activities as much as possible for eight weeks. Dr. Elliott recommended weight restrictions which included lifting no greater than 10 pounds and minimal climbing and walking on solid surfaces. Dr. Elliott testified it was his understanding, Hertel's injury occurred at work. He elaborated by noting Hertel encountered a very sharp pain that came quite suddenly. He pointed out Hertel continued to work for some time and then went to the emergency room where it was determined Hertel had sustained a fifth metatarsal fracture. Dr. Elliott noted he had not had an opportunity to treat Hertel prior to the injury. Dr. Elliott placed Hertel in a short leg walker which stabilized the foot and ankle and kept as much weight as possible off the injured foot. He noted with fifth metatarsal fractures, bracing needed to be done for at least six weeks. He further stressed he did not want Hertel to do any excessive climbing or putting pressure on the fracture. He recommended Hertel avoid excessive weight lifting or climbing. In a follow-up examination, Dr. Elliott did not feel the fracture had sufficiently healed. Therefore, he referred Hertel to Dr. Rogers, an orthopedic surgeon, for further evaluation. He stressed fifth metatarsal fractures were notorious for not healing. A bone density test, performed on September 2, 2010, was completely normal. Dr. Elliott opined Hertel had sustained a work-related injury. Dr. Elliott admitted, however, he could not disagree with...