Callos Resource, LLC v. Greg Faris ( 2021 )

RENDERED: SEPTEMBER 24, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0803-WC
CALLOS RESOURCE, LLC APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-17-57801
GREG FARIS; HONORABLE
CHRISTINA D. HAJJAR,
ADMINISTRATIVE
LAW JUDGE; AND WORKERS’
COMPENSATION BOARD APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, GOODWINE, AND LAMBERT, JUDGES.
COMBS, JUDGE: This is a case involving workers’ compensation. Appellant,
Callos Resource, LLC (Callos), the defendant-employer below, appeals from an
opinion of the Workers’ Compensation Board affirming an award by the
Administrative Law Judge (ALJ) of permanent total occupational disability
benefits. Finding no error after our review, we affirm.
On October 26, 2017, Appellee, Greg Faris (Faris), a carpenter, was
injured when he fell from a ladder. He was 67 years of age on the injury date, and
he was employed by Callos, a staffing agency, on assignment to 1st Call Disaster
Services.
At the January 7, 2021, hearing, Faris testified that he was on a roof at
work. The ladder came out from under him. He fell about ten feet and flipped
over. Faris was taken by ambulance to a helicopter and was then transported to the
University of Cincinnati Hospital. Faris was discharged after two nights in the
hospital, with diagnoses of a small right-sided pneumothorax and right rib
fractures. Faris was sent home after his release. Asked what he did most of the
time when he got home, Faris testified that “I couldn’t move. . . . I was sitting in a
recliner chair.”
Faris saw his primary care physician, Dr. Ria Santos, in a follow-up
visit. Dr. Santos’s records reflect that she saw Faris on November 27, 2017,
referred him to physical therapy (PT), and stated that he was unable to return to
work without restrictions at this time. Faris returned on December 14, 2017. On
that date, he had complaints of dizziness that usually occurred when arising from
bed or standing up. On January 18, 2018, Dr. Santos noted that Faris had
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developed tachycardia and lightheadedness during a functional capacity evaluation
(FCE) and was sent to the emergency room. Dr. Santos’s assessment included
benign paroxysmal positional vertigo, unspecified laterality; sinus tachycardia; and
dyspnea on exertion (DOE). Dr. Santos advised that “DOE and tachycardia on
exertion is related to deconditioning. He has been sedentary for at least 3 months.”
Dr. Santos recommended conditioning exercises prior to FCE. On February 15,
2018, Dr. Santos’s progress note reflects that: “Off work since Oct 26, 2017 after
work injury; started PT then. Work conditioning PT completed. FCE -- He is at
maximal medical improvement and he is not able to return to his previous job.”
Dr. Santos also prepared a Form 107 report dated May 28, 2019.1 Her
diagnoses included right 2nd, 3rd, 4th, 5th, 6th, and 9th rib fractures, right
pneumothorax, and vertigo (benign positional). Dr. Santos did not calculate an
impairment rating under the American Medical Association (AMA) Guides to the
Evaluation of Permanent Impairment (the Guides), stating that she is not familiar
with the Guides. She indicated that Faris did not have an active impairment prior
to the injury. Dr. Santos opined that Faris reached maximum medical
improvement in February 2018, that he does not retain the physical capacity to
return to the type of work performed at the time of the injury, and that “all”
restrictions should be placed upon Faris’s work activities as a result of the injury.
1
Faris filed Dr. Santos’s Form 107 report as an attachment to the Form 101.
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Both parties obtained independent medical examinations (IMEs).
Faris filed the Form 107 report of Dr. Lester Duplechan, who assigned 30% for
ear, nose, and throat/vestibular impairment, under Chapter 11, Table 11-4, page
253 of the 5th Edition AMA Guides.
Callos filed the November 2, 2020, IME report of Dr. Ellen Ballard.
Dr. Ballard’s work-related diagnosis is multiple rib fractures. She assigned an
impairment rating under the 5th Edition AMA Guides because of the rib fractures.
“This would be 5% (DRE Category II, Table 15-4, page 389). All of that would be
due to the work injury.” Dr. Ballard does not believe that Faris could perform the
job he performed at the time of the injury; however, she attributed that inability to
Faris’s other medical problems. According to Dr. Ballard’s report, Faris “had
previously suffered from diabetes, peripheral neuropathy, Crohn’s disease.” Dr.
Ballard noted that Faris had recently begun treatment for tongue cancer and had
undergone a radical neck dissection in August of 2020.
On March 5, 2021, the ALJ rendered an opinion, award, and order.
The ALJ found that Faris’s initial vertigo was related to his fall -- but that his
initial symptoms resolved with therapy and there was not sufficient evidence that
Faris’s ongoing dizziness was due to the injury. Relying upon the 5% impairment
rating that Dr. Ballard assigned for the rib fractures, the ALJ concluded that Faris
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was permanently and totally disabled. The ALJ was persuaded by Dr. Santos’s
opinion that Faris was unable to work and explained as follows:
In her [Form 107] report, Dr. Santos stated “all”
restrictions on work activities, as [Faris] was still
symptomatic. . . . Dr. Santos may not have been aware
that [Faris] actually did return to work from March 2018
through November 2018. However, given that Faris was
not successful in his attempt to return to work (a fact
acknowledged by Defendant), this ALJ believes Dr.
Santos’ opinion about his inability to work due to the
injury is still valid.
ALJ Opinion, pp. 13-14 (emphasis added). The ALJ explained that she did not
believe Dr. Ballard’s opinion attributing Faris’s inability to work to his other non-
work-related medical conditions:
The ALJ considered Dr. Ballard’s report, in which
she attributed [Faris’s] inability to work due to all of his
other non-work related conditions. However, this ALJ
finds that Dr. Ballard did not address the FCE
indicating [Faris] was deconditioned from being
sedentary after the injury. Thus, here [sic] report is
not credible.
Id. at 14 (emphasis added). The ALJ found “it significant that prior to the injury,
[Faris] was hired as a full time employee for Callos, after being an independent
contractor, because of the good quality of his work, but was terminated after the
injury due to his poor workmanship.” Id. at 15.2
2
Greg Day, operations manager for 1st Call Disaster Services, testified by deposition that Faris
was originally brought in on an independent contractor basis. Callos hired Faris as an employee
because of the quality of his work. On the injury date, Faris’s job title was “reconstruction
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The ALJ further explained as follows:
This ALJ acknowledges Faris has multiple other
medical problems that contribute to his inability to
perform the work he was performing at the time of the
injury[.] . . . However, this ALJ has based her decision
that he cannot return to work solely on [Faris’s]
deconditioning due to the injury. Dr. Santos made this
determination after he underwent work hardening
physical therapy in an attempt to improve his condition
so he could return to work. She further assessed
maximum medical improvement at this time, suggesting
that further therapy or conditioning would not improve
his ability to work. Faris himself also testified that it was
difficult to keep up, and even the employer
acknowledged he was unable to perform the work as he
used to do and fired him for it. Thus, this ALJ finds Faris
does not have the physical capacity to return to the work
he performed at the time of his injury due to his work
injury.
...
Permanent total disability is defined in KRS
[Kentucky Revised Statute] 342.0011(11)(c) as the
condition of an employee who, due to an injury, has a
permanent disability rating and who has a complete and
permanent inability to perform any type of work as a
result of an injury. Work is defined as meaning
providing service to another in return for remuneration
on a regular and sustained basis in a competitive
economy. KRS 342.0011(34). In City of Ashland v.
Stumbo, 461 S.W.3d 392 (Ky. 2015) the Kentucky
Supreme Court laid out a five-step analysis which the
ALJ must utilize in determining entitlement to permanent
technician,” which involved performing various projects -- drywall, framing, painting, trim work
-- general construction. After Faris returned to work following the subject injury, he was
employed by 1st Call Disaster Service doing the same thing as before. Day terminated Faris due
to a “severe decline in workmanship[.]”
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total disability. Initially, the ALJ must determine if the
claimant suffered a work related injury. Next, the ALJ
must determine what, if any, impairment rating the
claimant has. Third, the ALJ must determine what
permanent disability rating the claimant has. Then the
ALJ must make a determination that the claimant is
unable to perform any type of work. (In making this
determination the ALJ must state with some specificity
the factors which were utilized in making the conclusion
the claimant is permanently and totally disabled).
Finally, the ALJ must determine that the total disability is
the result of the work injury.
[Faris] has a 5% impairment rating and a 3.25%
disability rating. Although he has a low impairment
rating, this ALJ finds that the significant time he was
sedentary after the injury has caused him to be
deconditioned to the point he is unable to return to any
work, including his prior work as a carpenter. His only
prior work has been working in construction as a
carpenter. Due to his age of 70, his lack of education
beyond high school, and his only work experience was
working as a carpenter, this ALJ finds it is very
unlikely he could be retrained or return to any work
of [sic] which he has prior experience. He also had an
unsuccessful return to work attempt, which resulted
in his termination because of his inability to perform
his work as a carpenter. Thus, Faris is permanently
and totally disabled. This ALJ specifically only
considered his deconditioning (and not his other medical
conditions), in concluding he is permanently totally
disabled.
Callos filed a petition for reconsideration. With respect to the ALJ’s
determination that Faris is permanently and totally disabled, Callos argued that
there was no evidence Faris was permanently deconditioned and that no medical
provider had assigned a rating due to deconditioning. By order rendered March 30,
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2021, the ALJ denied Callos’s petition, denying it as an impermissible re-argument
of the merits; she further elaborated as follows:
To the extent it is necessary to address whether Plaintiff’s
deconditioning was permanent or temporary, this ALJ
relied on Dr. Santos’ opinion that he was at maximum
medical improvement when she determined he could not
return to his job. This suggests she did not expect his
condition to improve further to allow him to return to
work. Additionally, this ALJ finds it relevant that Faris
attempted to return to work, but was eventually fired for
being unable to adequately perform his job duties. This
ALJ finds that his condition is permanent.
Callos appealed to the Board, which affirmed by opinion rendered on
June 18, 2021. The Board found no merit in Callos’s argument that the ALJ erred
in finding that Faris was permanently and totally disabled due to his work injuries.
The Board noted that Faris was unsuccessful in his attempt to return to work in
March 2018; that he was terminated because his work was unsatisfactory; that Dr.
Ballard’s report established that Faris does not have the capacity to return to his
previous work; and that “[t]here is no evidence of record establishing that Faris
retained the ability to return to his pre-injury work.” The Board concluded that the
ALJ had performed the appropriate analysis pursuant to City of Ashland v. Stumbo,
supra,3 and Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48, 51 (Ky.
3
The five-step analysis in City of Ashland requires that the ALJ determine: (1) whether the
claimant had a work-related injury; (2) the claimant’s impairment rating; (3) the claimant’s
permanent disability rating; (4) whether the claimant is unable to perform any type of work; and
(5) whether the claimant’s total disability is a result of the work-related injury.
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2000), in finding that Faris is permanently totally disabled. Callos then filed this
appeal.
Where, as here, the party with the burden of proof on an issue
succeeds before the ALJ and the adverse party appeals, the question on appeal is
whether the ALJ’s decision is supported by substantial evidence. Wolf Creek
Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). As our Supreme Court
reiterated in Tryon Trucking, Inc. v. Medlin, 586 S.W.3d 233 (Ky. 2019):
The well-established standard of review for the appellate
courts of a workers’ compensation decision “is to correct
the [Workers’ Compensation] Board only where the
Court perceives the Board has overlooked or
misconstrued controlling statutes or precedent, or
committed an error in assessing the evidence so flagrant
as to cause gross injustice.”
Id. at 237-38 (quoting Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88
(Ky. 1992)).
Callos submits that “[w]hile the ALJ correctly pointed out that Faris
was noted to be deconditioned in February, 2018 . . . there is no subsequent report
or opinion from any medical professional stating that Faris was, or permanently
remained, in a deconditioned state as a result of the work injury.” Callos argues
that consequently it was error for the ALJ to determine that Faris is permanently
and totally disabled.
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We cannot agree. In her May 28, 2019, Form 107 report, Dr. Santos
opined that Faris does not retain the physical capacity to return to the type of work
performed at the time of the injury and that “all” restrictions should be placed on
his work activities as a result of the injury. As set forth above, the ALJ explained
in scrupulous detail why she believed that Dr. Santos’s opinion was valid regarding
Faris’s inability to work. As fact-finder, the ALJ “had the right to believe part of
the evidence and disbelieve other parts of the evidence whether it came from the
same witness or the same adversary party’s total proof.” Caudill v. Maloney’s
Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977).
Dr. Santos’s opinion provides a substantial evidentiary foundation to
support the ALJ’s award of permanent total disability benefits. We agree with the
Board that the ALJ performed the appropriate analysis in concluding that Faris is
permanently and totally disabled.
Accordingly, we affirm.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE GREG
FARIS:
Aaron D. Reedy
Lexington, Kentucky Thomas L. Rouse
Fort Mitchell, Kentucky
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