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NOT TO BE PUBLISHED OPINION 

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE 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UNPUBLISHED KENTUCKY APPELLATE DECISIONS, 

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RENDERED: AUGUST 20, 2015 . 

NOT TO BE PUBLISHED 

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2014-SC-000739-WC 

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) 1is 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." 

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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 MA' 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 ALJ 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 ALJ." 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 ALJ relied upon Dr. Looney's 

combined 20% rating based upon arthritis and gait derangement. Under the 

o 
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 Al.,J 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 contends 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 ALJ 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 generalduty 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." Homback v. Hardin Mem'l 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 8, Yeast 

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