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...
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