             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        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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
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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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: OCTOBER 23, 2014
                                                    NOT TO BE PUBLISHED

              oSuprrnit           Gurf 1,firrifitatib
                                                    ,
                              2014-SC-000049-WC


GONZALO SALAZAR
                                                     DAT             APPELLANT
                                                                                 rlJt-S- •




                   ON APPEAL FROM COURT OF APPEALS
V.                    CASE NO. 2013-CA-000737-WC
                  WORKERS' COMPENSATION NO. 09-78724



DEPENDABLE ROOFING, INC.;
DR. SUK KI KIM, M.D.;
HONORABLE J. LANDON OVERFIELD,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD                                         APPELLEES



                  MEMORANDUM OPINION OF THE COURT

                                  AFFIRMING

      In this workers' compensation appeal, Appellant, Gonzalo Salazar,

argues that the Court of Appeals and Workers' Compensation Board improperly

reviewed his claim, that the Chief Administrative Law Judge ("CALJ") erred by

relying on an impairment rating which is not consistent with the AMA Guides,

and that the CALJ misapplied KRS 342.165(1). For, the below stated reasons,

we affirm the Court of Appeals.

      Salazar began working for Appellee, Dependable Roofing, in 2009. In the

early morning hours of September 3, 2009, the owner of Dependable Roofing,

Brent Williamson, called Salazar's brother, Rigoberto Salazar, and asked if a
roof they were working on was protected from leaks because it was raining. It

is in dispute whether Williamson asked the men to report to the jobsite, but

regardless, Salazar, Rigoberto, and Muricio Salazar headed to the location.

      When the three brothers arrived at the job site, Williamson was already

there and determined that the roof was not leaking. Williamson testified that

he told the brothers not to climb on the roof. However, Salazar and his

brothers climbed onto the roof with the intention of placing a tarp over it.

Rigoberto testified that the roof was approximately thirty to forty feet long and

ten to twelve feet off the ground. He also testified that the pitch of the roof was

"5-12 or 6-12" which refers to the slant of the roof falling at a rate of inches to

feet. No safety equipment was used by the brothers while on the roof.

Williamson testified that he did not think safety equipment needed to be used

at this job site because the roof was of a normal pitch.

      As the brothers walked around on the roof, Williamson told them to

climb down. Almost instantly after Williamson gave that instruction, Salazar

fell off of the roof. Salazar does not remember the events surrounding his fall.

He was transported by ambulance to a hospital where he complained of head,

shoulder, and back pain. He was diagnosed with a scalp laceration, fractured

scapula, and multiple non-displaced lumbar transverse process fractures.

      Salazar has not worked since the accident and filed for workers'

compensation. He testified that he experiences pain in his head, upper back,

and left shoulder. He also testified that prolonged walking or being in one




                                          2
position for an extended period of time causes discomfort. Salazar does not

believe that he can return to a job as a roofer due to its physical demands.

         Salazar was evaluated by Dr. Jules Barefoot. He diagnosed Salazar with

a comminuted fracture to the body of the left scapula, right posterior parietal

non-depressed skull fracture, fracture of the right transverse processes from

L 1 -L5, and a non-displaced fracture of the left interior facet of L5, all due to the

work-related accident. He assessed a 36% impairment rating using the range

of motion ("ROM") model' of the AMA Guides.

         Treatment records from Dr. Jose Arias were filed outlining the treatment

he provided. Dr. Arias believed that Salazar reached maximum medical

improvement ("MMI") on May 24, 2010. He assessed an 8% impairment rating

pursuant to the AMA Guides using the diagnosis related estimate ("DRE")

method. 2 Dr. Arias also believed there was no medical reason preventing

Salazar from returning to work, but that it was possible he might experience

some pain if he did.




1   The ROM method is used to evaluate a spinal impairment: 1) when an impairment is
     not caused by an injury, if the cause of the condition is uncertain, and the DRE
     [diagnosis related estimate] method does not apply, or an individual cannot be
     easily categorized in a DRE class; 2) when there is multilevel involvement in the
     same spinal region; 3) when there is alteration of motion segment integrity at
     multiple levels in the same spinal region, unless there is involvement of the cortico
     spinal tract; 4) when there is recurrent radiculopathy caused by a new (recurrent)
     disk herniation or a recurrent injury in the same spinal region; and 5) when there
     are multiple episodes of other pathology producing alteration of motion segment
     integrity and/or radiculopathy.
2   The DRE method is the principal methodology used to evaluate an individual who
     has had a distinct spinal injury.
         Salazar was also evaluated by Dr. Denis O'Keefe, a neurologist. Dr.

O'Keefe diagnosed Salazar as status post-fracture of the transverse processes

from L1-L5 on the right, and a non-displaced fracture of the inferior L5 facet on

the left. He also noted a healed non-displaced right parietal skull fracture, a

healed fracture of the left scapula, and a healed contusion of the left elbow.

Dr. O'Keefe believed Salazar reached MMI and assessed a 13% impairment

rating. 3 Dr. O'Keefe did not place any restrictions on Salazar's activities. In a

supplemental report dated May 28, 2012, Dr. Barefoot specifically disagreed

with Dr. O'Keefe's impairment rating assessment.

         After reviewing the evidence, the AI,J made the following findings:

         Three different medical experts have given three different
         functional impairment ratings under the Guides. Dr. Barefoot goes
         into great detail explaining why his is the only competent rating.
         Unfortunately, Dr. Barefoot's quote which he attributes to
         dispositive instructions in the Guides is far from accurate. His
         quote attributed to the Guides was as follows:
                As previously stated, the ROM method should be used
                if multi-level involvement and/or alteration of motion
                segment integrity has occurred in the same spinal
                region.
         That is not accurate. The actual quote taken, in part, from
         paragraph 15.8 at page 398 is as follows:
                As previously stated (Section 15.2) the ROM method
                should be used only   .   (3) if multilevel involvement
                                          .   .



                and/or alteration of motion segment integrity has
                occurred in the same spinal region; . . . (Italics
                original, bold added.)
         This language appears to be restrictive rather than mandatory.
                The quote from Dr. Arias relating to the sections of the
         Guides he used appears to be accurate. It must also be noted that,
         using the DRE methodology, fractures of transverse processes
         warrant impairment ONLY if the fracture is accompanied by


3   Dr. O'Keefe admits that his impairment is not in accordance with the AMA Guides
     because he found the Guides rating excessive.


                                                  4
      displacement. None of Plaintiff's fractures were accompanied by
      any displacement.
             Concerning Plaintiff's permanent condition and functional
      impairment rating for his lumbar spine injuries, I find the opinions
      of Dr. Arias to be the most credible and convincing medical
      evidence in the record. Based on the opinions of Dr. Arias, I find
      that Plaintiff has an 8% functional impairment to the body as a
      whole but has no need for restrictions on his physical activity.

(Emphasis in original).

      Along with those findings, the CALJ rejected Salazar's claim for enhanced

benefits pursuant to KRS 342.165(1). In support of that claim, Salazar

included in the record various OSHA regulations regarding the use of safety

equipment. However, the CALJ found that there was "no credibility at all in

[Salazar]'s claim that [Dependable Roofing] is guilty of a safety violation.

[Salazar]'s injury was caused by his failure to follow the instructions of his

employer, not because of any safety violation committed by [Dependable

Roofing]."

      Salazar appealed to the Workers' Compensation Board who affirmed.

The Court of Appeals also affirmed and this appeal followed.


  I. THE WORKERS' COMPENSATION BOARD AND COURT OF APPEALS
              PROPERLY REVIEWED SALAZAR'S CLAIM

      Salazar first argues that the Board and Court of Appeals did not properly

review his claim. He argues that while the CALJ has discretion in making fact

finding determinations, the Board has a duty to ensure that his rulings are in

conformity with Chapter 342. Salazar claims that the Board and the Court of

Appeals failed in its duty to oversee by rubberstamping the CALJ's opinion

under the guise of his discretionary powers. We disagree and find that the


                                          5
Board and Court of Appeals properly reviewed Salazar's claim as shown by our

holdings on his other arguments of error.


   II. THE CAM DID NOT CHOOSE AN IMPAIRMENT RATING WHICH IS
                INCONSISTENT WITH THE AMA GUIDES.

      Salazar next argues that the CALJ abused his discretion by choosing to

adopt the impairment rating from Dr. Arias because he believes it is

inconsistent with the AMA Guides. Salazar believes that Dr. Arias's rating is

incorrect because it rates only one vertebrae fracture at one level and he

actually suffered from six fractures on five different levels. Salazar cites to

Thomas v. United Parcel Service, 58 S.W.3d 455 (Ky. 2001), to argue that Dr.

Arias was required to assign an impairment for each fractured vertebra and

use the combined values chart to obtain a rating.

      In Thomas, the ALJ found that the AMA Guides required the use of the

DRE model rather than the ROM model to determine the claimant's

impairment rating from a transverse process fracture. The only medical expert

who testified in Thomas was a university evaluator who stated that four 5%

impairments would combine to produce a 19% impairment under the combined

values table. Id. at 456. The Court concluded in the absence of any

countervailing evidence, it was not unreasonable for the ALJ to conclude four

fractures caused a combined 19% impairment.        Id. at 458-459.

      In this matter, unlike Thomas, there were conflicting medical opinions

provided. Dr. Arias and Dr. O'Keefe believed that the non-displaced lumbar

fractures had completely healed and did not alter Salazar's motion integrity or



                                          6
instability. The CALJ chose to find Dr. Arias's opinion the most credible

because he believed that Dr. Barefoot's opinion was based on Salazar's

subjective symptoms. The CALJ also found that Dr. Barefoot misquoted the

AMA Guides in setting his impairment rating. While the CALJ could have

adopted Dr. Barefoot's assessment, the evidence does not compel such a result.

The CALJ did not err by adopting Dr. Arias's opinion.


III. SALAZAR IS NOT ENTITLED TO ENHANCED BENEFITS PURSUANT TO
                          KRS 342.165(1)

         Salazar's last argument is that he is entitled to enhanced benefits

pursuant to KRS 342.165(1) because he alleges Dependable Roofing committed

a safety violation by not providing him fall protection equipment before he

climbed on the roof. KRS 342.165(1) states in pertinent part:

         [i]f 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.

Salazar points to several OSHA regulations to support his contention that

Dependable Roofing partially caused his accident. 4 Despite these regulations,

we are unconvinced that Salazar is entitled to enhanced benefits.

         To prevail on a claim for enhanced benefits under KRS 342.165, the

injured employee must not only show that a safety violation was committed,



4   Salazar cites to the following OSHA regulations: 29 CFR 1926.501(b)(11); 29 CFR
     1926.502(d)(21); 29 CFR 1926.20; 29 CFR 1926.21; 29 CFR 1926.32.


                                            7
but that the violation caused the work-related accident. Causation is a finding

of fact to be made by the fact finder and will not be disturbed if supported by

substantial evidence. Apex Mining v. Blankenship, 918 S.W.2d 225, 228 (Ky.

1996). The CALJ found that Salazar's injury was caused by his failure to follow

Williamson's order and not from a safety violation. This finding is supported by

Williamson's testimony that he told Salazar to not climb on the roof which the

CALJ found to be credible. There is no compelling evidence to the contrary to

require reversal.

      For the above stated reasons, we affirm the opinion of the Court of

Appeals.

      All sitting. All concur.




COUNSEL FOR APPELLANT,
GONZALO SALAZAR:

Daniel Caslin
Mary Michele Cecil


COUNSEL FOR APPELLEE,
DEPENDABLE ROOFING, INC.:

Judson Fuller Devlin


COUNSEL FOR APPELLEE,
DR. SUK KI KIM, M.D.:

Suk Ki Kim, M.D., pro se



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