             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        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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 BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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
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                                                          'BitT   ATEU 21, 2015
                                                           N      •

                ,i5uprrtur (Courf of 71'                   I i k\v
                                 2014-SC-000739-W

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 ALJ 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 AILJ 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 ALL" 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 AI.J relied upon Dr. Looney's

combined 20% rating based upon arthritis and gait derangement. Under the
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 ALJ 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     ontends 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 AI,J 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." Hornback v. Hardin Meml 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 & Yeast




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