Gonzalo Salazar v. Dependable Roofing, Inc.

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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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: OCTOBER 23, 2014
NOT TO BE PUBLISHED
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2014-SC-000049-WC
GONZALO SALAZAR
DAT APPELLANT
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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
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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.
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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
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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
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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.
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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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