IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED: AUGUST 20, 2015 .
NOT TO BE PUBLISHED
$uprrtur &Turf of ritfUrkg
2014-SC-000739-WC
EMPLOYMENT SOLUTIONS, INC. APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2014-CA-000170-WC
WORKERS' COMPENSATION BOARD NO. 11-WC-83831
CHARLES BREEZE, ET. AL. APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
In this workers' compensation case, Appellant, Employment Solutions,
Inc. ("Employment Solutions"), contends that the impairment rating upon
which the ALJ relied does not constitute substantial evidence, because it is not
in conformity with the Guides to Evaluation of Permanent Impairment, Fifth
Edition ("AMA Guides"); further, that the ALJ's assessment of a 30% increase in
compensation for violation of KRS 342.165(1) 1 is not supported by substantial
'The statute provides in relevant part:
If an accident is caused in any degree by the intentional
failure of the employer to comply with any specific statute
or lawful administrative regulation made thereunder,
communicated to the employer and relative to installation
or maintenance of safety appliances or methods, the
compensation for which the employer would otherwise have
been liable under this chapter shall be increased thirty
percent (30%) in the amount of each payment.
evidence. The Workers' Compensation Board ("Board") found no error in the
ALJ's reliance upon the subject impairment rating. The Board vacated and
remanded with respect to the safety violation, because the basis for the ALJ's
decision was unclear. The Court of Appeals affirmed. Finding no error, we
affirm.
I. BACKGROUND
On June 21, 2011, Appellee, Charles Breeze ("Breeze"), was employed by
Employment Solutions as a co-instructor in the building trades program. He
was injured while showing a student how to make cuts in a board with a table
saw. On the last cut, a knot or warp in the board caused it to kick. The board
hit Breeze in the stomach and his hand went on top of the blade. Breeze
sustained injuries to his third, fourth and fifth fingers. He underwent surgery,
was off work until September 17, 2011, and returned to his regular job.
Subsequently, Breeze was promoted to lead instructor.
On November 5, 2012, Breeze filed an Application for Resolution of Injury
Claim/ Form 101, claiming a violation of KRS 342.165(1). Breeze alleged that
the "[b]lade guard wasn't working properly, had been reported several times."
In his February 18, 2013, deposition, Breeze testified that the guard was
working properly. But, he thought the saw was old and needed to be replaced.
Breeze testified that he had mentioned it to the lead instructor, Brad Ison,
numerous times, to the effect of "Hey, Brad, this saw's kind of old. I think we
might check into replacing it."
2
On April 30, 2013, Rick Christman, CEO of Employment Solutions,
testified by deposition. Employment Solutions, a non-profit, helps people with
barriers to employment become self-sufficient. According to Christman, Brad
Ison was never reticent to spend money on new equipment. Before Breeze's
injury, nothing had been brought to Christman's attention that there were any
issues with the subject saw. Christman testified that it was about seven years
old, had been purchased new and was not used frequently. He explained that
they had replaced the table saw, "not because there was anything wrong with
it, but we replaced it with a table saw that was much more sophisticated,
something that will - that would prevent any injury."
At the May 3, 2013 hearing, Breeze testified that he noticed "numerous
things that was wrong with [the saw] immediately. The saw guard would get
stuck. It wouldn't come down sometimes when you'd run a board through."
Dr. Robert Johnson assessed a 23% impairment rating under the AMA
Guides, which included 12% for loss of strength. Dr. Prince assessed 12%,
AMA Guides. By addendum report, Dr. Prince explained that the major
difference in their ratings was Dr. Johnson's use of strength as an additional
factor. Citing the AMA Guides, Dr. Prince noted that "[s]trength can be an
appropriate method for evaluation 'in a rare case, if the examiner believes the
individual's loss of strength represents an impairing factor that has not been
considered adequately by other methods in the Guides."' Further, that
"'impairment due to loss of strength could be combined with the other
3
impairments, only if based on unrelated etiologic or pathomechanical causes."'
(alteration in original). Dr. Prince felt that his 12% rating was an appropriate
estimate of the impact of Breeze's hand injuries on his overall activities of daily
living.
By Opinion rendered July 3, 2013, the ALJ awarded permanent partial
disability benefits based upon Dr. Johnson's 23% rating, noting that it
included the "strength factor." The MA' also awarded a 30% increase in
compensation for violation of KRS 342.165(1):
The final issue ... is whether or not [Breeze] is
entitled to a penalty enhancement pursuant to KRS
342.165... The ALJ has not been directed to any
violation of a specific rule or regulation and ... knows
of none. However, the ALJ must further consider
whether or not a violation has occurred under the
"general duties" requirements of KRS 338.031(1)(a).
Under the general duties statute, an employer "shall
furnish to each of his employees employment and a
place of employment which are free from recognized
hazards that are causing or are likely to cause death
or serious physical harm to his employees."
Mr. Breeze had complained to his supervisor on
previous occasions that the table saw on which he was
injured was unsafe and needed to be replaced. His
complaints were either ignored or considered but
rejected. Mr. Christman testified that he was unaware
of any problems or defects in the saw. He testified that
money was available for replacement of the saw and he
assumed that Mr. Ison, the immediate supervisor,
would have purchased a new saw if he had found
merit in [Breeze's] complaints. Subsequent to Mr.
Breeze's injury, the saw was replaced with a new
model that contained a device that causes the saw to
stop or shut down if moisture activates a sensor.
Obviously, the new saw is a later model and contains a
safety device not contained on the saw used by Mr.
4
Breeze at the time in question. However, the saw was
only 7 years old, according to Mr. Christman and had
not been over-used. The ALJ is faced with the decision
of whether or not the availability of a newer and safer
model table saw is tantamount to an unsafe or
hazardous environment or place of employment... [T]he
question is whether or not the employer's failure to
purchase a newer and safer model, in and of itself,
constitutes a violation of KRS 338.031, and thus, a
violation of KRS 342.165....
In his deposition, [Breeze] acknowledged that the
table saw ... did contain a guard and that it was in
place and functioning at the time of his injury....
However, he further testified that the machine was
"very old" and that he had mentioned to Brad Ison that
the saw needed to be replaced. Mr. Breeze testified
that in words or in substance he made a statement
such as, "Hey, Brad, this saw's kind of old. I think we
might check into replacing it."
In ... Lexington-Fayette Urban County
Government v. Offutt, 11 S.W.3d 598 (Ky. App. 2000),
the court adopted a four-pronged test that was first
enunciated in Nelson Tree Services, Inc. v. Occupational
Safety & Health Review Commission, 60 F.3d 1207
(6th Cir. 1995). The test for violation of the general
duty clause is as follows:
(1) A condition or activity in the work place
presented a hazard to employees;
(2) The cited employer or employer's industry
recognized the hazard;
(3) The hazard was likely to cause death or
serious physical harm; and
(4) A feasible means existed to eliminate or
materially reduce the hazard.
In the case at hand, the use of table saws in
close proximity with the body parts of employees is an
obvious hazard. The fact that guards and other safety
5
devices are utilized on machines such as table saws is
recognition by the employer's industry of the hazard
presented. The hazard was likely to cause death or
serious physical harm. Finally, a feasible means
existed to eliminate or materially reduce the hazard. A
newer and safer model table saw was available on the
market. Considering ... [that Employment Solutions] is
a training facility for students, and further considering
that [Breeze] had warned his supervisor that a safer
machine should be made available to the employees,
as well as the instructor, the ALJ finds that violation of
the statute has occurred and that [Breeze] is entitled
to an enhancement of 30% of the benefits awarded to
him. [Employment Solutions] failed to furnish [Breeze]
with a place of employment free from recognized
hazards that were likely to and did cause serious
physical harm to Mr. Breeze.
On July 12, 2013, Employment Solutions filed a Petition for
Reconsideration, which the ALJ denied by order of August 2, 2013.
Employment Solutions appealed to the Board.
On January 3, 2014, the Board rendered an Opinion affirming in part,
vacating in part and remanding. The Board found no error in the ALJ's reliance
upon Dr. Johnson's impairment rating.
Dr. Johnson was not cross-examined
regarding his ... impairment rating. Although Dr.
Prince ... did not include the loss of grip strength in
his assessment of impairment, he outlined instances
when the inclusion of such loss may be appropriate.
He stopped short of stating Dr. Johnson's
assessment of impairment may be inappropriate. Dr.
Prince's assessment of impairment is merely
contrary evidence upon which the ALJ could have
relied. Here, Dr. Johnson's report constitutes
substantial evidence ....
6
The Board vacated the ALJ's assessment of a 30% increase in
compensation for violation of KRS 342.165(1), because the basis for the ALJ's
decision was unclear.
The burden is on the claimant to demonstrate an
employer's intentional violation of a safety statute or
regulations. See Cabinet for Workforce Development v.
Cummins, 950 S.W.2d 834 (Ky. 1997).
Application of the safety penalty requires two
elements... First, the record must contain evidence of a
violation of a specific safety provision, whether state or
federal. Second, evidence of "intent" to violate a
specific safety provision must also be present.
Violation of the "general duty clause" set out in
KRS 338.031(1)(a) may be grounds for assessment of a
penalty in the absence of a specific regulation or
statute....
Because Breeze's testimony is equivocal, it is
necessary for the ALJ to identify what evidence he
relied upon in making his determination. Breeze's
primary complaint is newer technology with advanced
safety features existed on the market at the time of the
accident. No evidence was produced as to whether the
equipment lacked any safety features violative of any
established safety rule or regulation. At his deposition,
Breeze testified the guard was functioning properly,
although at the hearing held two months later, he
testified it did not. Because the testimony relied upon
by the ALJ in reaching his conclusion is inconsistent,
it is necessary for him to identify the portions of
Breeze's testimony he relied upon in making his
determination. It is unclear whether the ALJ believed
Employment Solutions' failure to purchase a safer saw
or its failure to repair the saw after receiving repeated
warnings from Breeze was the basis for the imposition
of the safety penalty.
[T]he parties are entitled to findings sufficient to
inform them of the basis for the ALJ's decision to allow
7
for meaningful review. Kentland Elkhorn Coal Corp. v.
Yates, 743 S.W.2d 47 (Ky. App. 1988); Shields v.
Pittsburgh and Midway Coal Mining Co., 634 S.W.2d
440 (Ky. App. 1982).
The Board remanded for "entry of an amended opinion, award and order
consistent with the views set forth herein."
Employment Solutions appealed to the Court of Appeals, which affirmed
by Opinion rendered November 21, 2014. On December 16, 2014, Employment
Solutions filed a Notice of Appeal to this Court.
II. ANALYSIS
Employment Solutions contends that Dr. Johnson's impairment rating
does not constitute substantial evidence, because he misapplied the AMA
Guides by including loss of strength. "[T]he proper interpretation of the Guides
and the proper assessment of an impairment rating are medical questions."
Kentucky River Enterprises, Inc. v. Elkins, 107 S.W.3d 206, 210 (Ky. 2003).
"[E]xcept under compelling circumstances where it is obvious even to a lay
person that a gross misapplication of the AMA Guides has occurred, the issue
of which physician's AMA rating is most credible is a matter of discretion for
the ALJ." Cent. Baptist Hosp. v. Hayes, No. 2012-SC-000752-WC, 2013 WL
4623489, at *2 (Ky. Aug. 29, 2013) (quoting the Board).
Employment Solutions draws our attention to Watkins v. Kobe Aluminum
USA, Inc., No. 2013-SC-000334-WC, 2014 WL 4160212 (Ky. Aug. 21, 2014).
Watkins is distinguishable on its facts. There, the ALJ relied upon Dr. Looney's
combined 20% rating based upon arthritis and gait derangement. Under the
o
AMA Guides, an impairment based on gait derangement requires routine use of
a cane, crutch, or long leg brace. In Watkins, there was no evidence that the
claimant had ever used or required such a device. The Board vacated the
award and remanded for additional findings. The Court of Appeals affirmed.
This Court affirmed and explained that "on remand, we are not requiring the
ALJ to perform a medical analysis, but only to address the issue raised and
determine whether there is support in the record for a 20% impairment rating
for gait impairment per the AMA Guides." Id. at *3.
We agree with the Board and the Court of Appeals that Dr. Prince's
opinion was merely contrary evidence. As was his prerogative, the Al.,J found
Dr. Johnson's opinion more credible.
The [Board] is entitled to the same deference for its
appellate decisions as we intend when we exercise
discretionary review of Kentucky Court of Appeals
decisions in cases that originate in circuit court... The
function of further review in our Court is to address
new or novel questions of statutory construction, or to
reconsider precedent when such appears necessary, or
to review a question of constitutional magnitude.
W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
Employment Solutions also contends that the ALJ's assessment of an
increase in compensation for violation KRS 342.165(1) is not supported by
substantial evidence.
KRS 342.165(1) requires proof that an "intentional"
violation of a specific safety statute or regulation
caused the accident in which the worker's injury
occurred. Thus, an award under KRS 342.165(1) must
9
be based on substantial evidence that a violation
occurred and was intentional...
KRS 342.165(1) does not require evidence that an
employer deliberately set out to violate a safety
provision or engaged in egregious or malicious
conduct. ALJs may presume that employers know the
requirements of statutes and regulations concerning
workplace safety that have existed long enough to
create a presumption of knowledge. Intent is a
question of fact for an ALJ to determine. It may be
inferred reasonably from an employer's knowing
violation of a specific safety provision. KRS 342.165(1)
authorizes an increase in compensation if the
intentional violation "in any degree" caused the
accident in which a worker was injured.
KRS 338.031(1)(a), commonly known as
KOSHA's "general duty" provision, requires every
employer to provide a workplace that is "free from
recognized hazards that are causing or are likely to
cause death or serious physical harm." The words
"recognized hazards" are not specific and may be
construed broadly to include hazards that safety
experts recognize but that workers and employers may
not. Thus, the mere fact that a general duty violation
occurs will not support an inference that the violation
is intentional for the purposes of KRS 342.165(1).
Omico Plastics v. Sparkle Acton, No. 2008-SC-000344-WC, 2009 WL 427386, at
*3 (Ky. Feb. 19, 2009) (footnote omitted). "In order for a violation of the general-
duty provision [KRS 338.031(1)(a)] to warrant enhancement under KRS
342.165(1), the employer must be found to have intentionally disregarded a
safety hazard that even a lay person would obviously recognize as likely to
cause death or serious physical harm." Homback v. Hardin Mem'l Hosp., 411
S.W.3d 220, 226 (Ky. 2013).
10
In the present case, the Board vacated the "ALJ's decision to impose a
30% safety penalty pursuant to KRS 342.165" because the basis for it was
unclear. We agree. "[W]here the trial court fails to fully articulate its decisional
basis, appellate courts are prevented from discharging their duty of meaningful
appellate review." Carpenter v. Schlomann, 336 S.W.3d 129, 132 (Ky. Ct. App.
2011).
Accordingly, we affirm the decision of the Court of Appeals.
All sitting. All concur.
COUNSEL FOR APPELLANT:
John G. Irvin, Jr.
Kinkead 86 Stilz, PLLC
COUNSEL FOR APPELLEE:
McKinnley Morgan, Esq.
Morgan, Collins 8, Yeast
11