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NOT TO BE PUBLISHED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 

v. 

PETITION FOR REVIEW OF A DECISION

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
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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 nonwork-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,

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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:

Aaron D. Reedy

Lexington, Kentucky

BRIEF FOR APPELLEE GREG 

FARIS:

Thomas L. Rouse

Fort Mitchell, Kentucky