SHOREWOOD PACKAGING v. FLOYD MITCHELL BROOKS, JR.; HON. JAMES L. KERR, ADMINISTRATIVE LAW JUDGE; DR. EUGENE E. JACOB; AND KENTUCKY WORKERS' COMPENSATION BOARD
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RENDERED: October 8, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000949-WC
SHOREWOOD PACKAGING
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-03-00502
v.
FLOYD MITCHELL BROOKS, JR.; HON.
JAMES L. KERR, ADMINISTRATIVE LAW
JUDGE; DR. EUGENE E. JACOB; AND
KENTUCKY WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; GUIDUGLI AND KNOPF, JUDGES.
COMBS, CHIEF JUDGE:
Shorewood Packaging (Shorewood) petitions
for review of an opinion of the Workers’ Compensation Board of
April 14, 2004.
The Board affirmed in part, vacated in part,
reversed in part, and remanded a decision of the Administrative
Law Judge (ALJ).
Shorewood first argues that the ALJ had been
correct in finding that Shorewood’s employee, Floyd Mitchell
Brooks, Jr., retained the ability to work after he had injured
his knee at work.
It contends that the Board erred in reversing
the ALJ on this issue.
Shorewood also believes that the Board
erred in holding that the ALJ lacked authority to alter his
original opinion as to the degree of Brooks’s active impairment
upon reconsideration.
After a review of the record, we affirm.
Before his knee injury at Shorewood, Brooks had
sustained an injury to his right knee which required multiple
procedures -- including surgery -- in 2000 and 2001.
He was
able to return to his physically demanding work as a press
operator at Shorewood in October 2001 without any restrictions.
He continued working without any problems until February 6,
2002, when he hurt his knee at work.
The injury involved a
complete tear of his medial collateral ligament (MCL), a tear of
his anterior cruciate ligament (ACL), and the detachment of his
medial meniscus.
Dr. Eugene Jacob, the orthopedic surgeon who
had treated all of Brooks’s previous knee problems, performed
extensive reconstructive surgery in May 2002.
Brooks reached maximum medical improvement in November
2002.
When Dr. Jacob placed many restrictions on his
activities, Shorewood informed Brooks that it had no suitable
work for him and terminated his employment in January 2003.
In
order to support his family, Brooks began running his own
business, Digital Home Concepts, an enterprise that involved
designing and selling home theater and audio systems primarily
2
in new homes.
Upon making a sale, he associated with other
contractors to install the entertainment systems.
Brooks filed a claim for workers’ compensation
benefits in March 2003.
He complained about continuing
disabling pain in his knee that prevented him from standing for
very long.
He also stated that he could not run, kneel, crawl,
or squat –- all activities required by his work at Shorewood.
Before Brooks had filed his claim, Shorewood proceeded
to hire two private investigators to watch him and to document
his day-to-day activities.
Shorewood introduced the report
generated by its surveillance team (including two videotapes) to
counter Brooks’s claim for enhanced income benefits for workers
who are disabled from performing their former job duties as
provided in KRS1 342.730(1)(c)(1).
Two issues were presented to the ALJ:
(1) Brooks’s
eligibility for enhancement of the triple permanent partial
disability benefits and (2) conflicting evidence as to the
degree and severity of his pre-existing active impairment.
Dr.
Jacob related that Brooks had a 9% impairment -- 50% of which
was pre-existing.
To this 4½% impairment rating, Dr. Jacob
added 4% because of his pain, arriving at a total compensable
impairment of 8½ %.
Shorewood’s expert, Dr. Andrew L.
DeGruccio, reported that Brooks had sustained a 20% impairment
1
Kentucky Revised Statutes.
3
due to his right knee injuries.
However, Dr. Gruccio attributed
75% of the impairment to Brooks’s prior active condition with
the result that 5% was assessed as to the work-related injury.
At the final hearing, Brooks responded to the
testimony of the investigators with their videotaped evidence.
He testified that he had not performed any heavy work at the
various construction sites where they had filmed him carrying a
small step ladder.
He described his work as involving “going
out and looking at jobs,” “putting proposals together,”
“occasionally helping” those with whom contracted, and making
sure that the installation of the home entertainment systems was
done correctly.
When asked about the physical constraints of
this work, Brooks responded:
Occasionally, to do a proper evaluation
of the job, sometimes I have to take, you
know, a small ladder in and I’ll have to
climb and I’ll have to look, just to get a
visual of where wires need to be pulled and
where, you know, if there’s – what the
special tools are that the guys are going to
need, just to make a very accurate proposal.
Occasionally, if I’m – if I happen to be
there while they are doing the actual
installation in the pre-wiring, occasionally
they may ask me to lend them a hand or
something, and I’ll – I’ll help them as much
as I physically am able.
After reviewing the evidence, the ALJ was more
persuaded by Dr. Jacob, the treating surgeon.
He accepted Dr.
Jacob’s opinions with respect to degree of impairment
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attributable to Brooks’s right knee injuries as well as the
50/50 apportionment between the prior active and the workrelated injuries.
However, in rejecting Brooks’s claim for
application of the triple multiplier in KRS 342.730(1)(c), the
ALJ based his decision on the surveillance videotapes:
Addressing whether [Brooks] attains the
physical capacity to return to the type of
work-related [sic] performed at the time of
the injury, the Administrative Law Judge has
reviewed the surveillance video tapes filed
by [Shorewood] and concludes that [Brooks]
retains the physical capacity to return to
the type of work performed at the time of
the injury, which [Brooks] described as
including standing, bending, kneeling,
lifting, carrying, climbing steps and
working in awkward positions.
ALJ’s Opinion and Award, October 21, 2003, pp. 7-8.
Accordingly, Brooks received an award of $30.96 per week for a
period not to exceed 425 weeks based on the unadorned 8½%
impairment rating.
Both Brooks and Shorewood filed motions for
reconsideration.
Brooks argued that there was no evidence to
support the ALJ’s determination that he was not entitled to the
enhanced income benefits.
His motion was denied.
In its motion, Shorewood argued that the ALJ erred in
relying on the impairment rating of Dr. Jacob because he had
used the 4th edition of the American Medical Association’s
“Guides to the Evaluation of Permanent Impairment” (Guides)
5
rather than the more current 5th edition.
The ALJ agreed that
Dr. Jacob had used an incorrect edition of the Guides and
granted Shorewood’s motion.
He then amended his decision and
awarded benefits corresponding with Dr. DeGruccio’s 5% permanent
partial impairment rating.
In its review, the Board concluded that the ALJ
improperly relied upon this evidence in denying enhanced income
benefits as it was not sufficient to support his finding that
Brooks retained the physical capacity to perform his pre-injury
work.
As urged by Brooks, we have reviewed
the videotapes. We agree with Brooks [that]
the videotapes show him carrying a
stepladder and other light-weight objects to
and from his pick-up truck. We further
agree with him that the tapes do not show
him working at a construction site. The
tapes do show him walking deliberately with
an altered gait and having trouble ascending
steps at a physiotherapy establishment. Dr.
Jacob restricted Brooks to sedentary work.
While some of the videotaped activities of
Brooks might be viewed as more than
sedentary, they all appear to be well within
the limitations described in the functional
capacity evaluation report. Brooks
described the heavy labor necessary to
perform his job duties with Shorewood. At
most, the tapes show Brooks bending at waist
level on two occasions, but not lifting
anything of significant weight. The loading
of his truck at the loading dock was done at
waist level. While Brooks is shown carrying
a light aluminum stepladder on three
occasions, he is not seen climbing it, which
he admits doing. He was not seen stooping,
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crawling, kneeling, lifting heavy weights,
or working in an awkward position.
. . . The critical inquiry is whether
the claimant is physically capable of
performing the same job he was performing at
the time of injury, and this analysis must
take into account the component part[s] of
the claimant’s job requirements. A proper
analysis requires a comparison of the
physical requirements of the pre-injury
employment and post-injury capabilities
based on a totality of the lay and medical
evidence of record. Carte v. Loretto
Motherhouse Infirmary, Ky.App., 19 S.W.3d
122 (2000). Here, the ALJ seemingly focused
on the videotape evidence as being
determinative. While the tapes may have
some evidentiary value, it is our opinion
that standing alone they do not constitute
substantial evidence to support the finding
that Brooks is physically capable of
performing his pre-injury employment on a
regular and sustained basis. On this issue,
the ALJ’s finding is insufficient and the
matter must be remanded for additional
findings to support the ultimate
conclusions.
Opinion of the Board, April 14, 2004, pp. 11-13.
The Board rejected Brooks’s argument that the ALJ
erred when he amended his previous decision, abandoning the
opinion of Dr. Jacob and relying instead on the overall
impairment rating assessed by Dr. DeGruccio.
However, it agreed
with Brooks that apportionment was a separate matter and that
the ALJ was not permitted to reconsider his opinion as to the
apportionment of pre-existing active impairment.
Dr. Jacob opined 50% of Brooks’[s]
impairment was preexisting and Dr. DeGruccio
7
determined 75% of Brooks’[s] impairment was
preexisting. The ALJ, in his original
opinion, relied on Dr. Jacob’s opinion of
preexisting active impairment. Even though
Dr. Jacob’s impairment rating was properly
rejected as not being based on the current
edition of the Guides, his opinion
addressing the percentage of impairment
attributable to the work injury was not so
fatally flawed. Dr. Jacob’s opinion on this
issue represents a distinct medical opinion
separable from the impairment rating. That
portion of Dr. Jacob’s opinion constitutes
substantial evidence. In Wells v. BethElkhorn Coal Corp., Ky.[App.], 708 S.W.3d
104 (1985), the Kentucky Court [of] Appeals
instructs that an ALJ, on petition for
reconsideration, may not reconsider the case
on the merits or change his factual
findings. The ALJ’s choice to adopt Dr.
DeGruccio’s opinion on this issue represents
a departure from the rule and must be
reversed.
Id., pp. 14-15.
In this appeal, Shorewood argues that the Board
exceeded the proper scope of its review in remanding the matter
to the ALJ for more findings on the issue of Brooks’s physical
capacity.
Shorewood claims that the Board improperly
substituted its own assessment of the evidence for that of the
ALJ.
It also argues that the Board erred when it held that the
ALJ lacked the authority to change his finding on the issue of
the degree of Brooks’s pre-existing active impairment.
Shorewood believes that the Board’s opinion “results in a
distorted impairment rating.”
(Appellant’s brief, p. 15.)
8
The scope of our review of the issues raised by
Shorewood is limited.
We may correct the Board only where we
perceive that it has “overlooked or misconstrued controlling
statutes or precedent, or committed an error in assessing the
evidence so flagrant as to cause gross injustice.”
Western
Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685, 687-88 (1992).
We have reviewed the record, and we wholly agree with
the Board’s determination that the videotapes fail to establish
that Brooks was capable of performing his pre-injury work.
Contrary to Shorewood’s argument, the videotapes do not “show
Brooks working on construction sites for extended periods of
time.”
(Appellant’s brief, p. 10).
We agree with the Board
that the ALJ had no reasonable basis for concluding that Brooks
retained the same range of ability to move and work that he had
enjoyed prior to his injury.
Shorewood emphasizes that the evidence on this point
was conflicting, urging that the ALJ was not required to recite
all of the evidence on which he relied when he rejected Brooks’s
claim of inability to engage in the type of physical activities
required of him as a press operator.
Other than the videotapes,
Shorewood does not point to any evidence to support this
argument.
And we have not discovered any evidence to support
the conclusion of the ALJ that Brooks retained previous physical
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capability.
Thus, we hold that the Board did not err (much less
did it do so flagrantly) in assessing the evidence.
We turn next to Shorewood’s argument that Dr. Jacob’s
apportionment of Brooks’s impairment (50% to the February 2003
work injury and 50% to his preexisting impairment) was
unreliable.
Shorewood has not cited any convincing authority on
this point.
As noted by the Board, a determination of proper
apportionment requires a medical opinion separate and distinct
from the issue of the degree of impairment, which is to be
determined solely by reference to the Guides.
Since Dr. Jacob
had treated all of Brooks’s knee injuries, he was certainly well
qualified to address the issue of apportionment.
Dr. DeGruccio, Shorewood’s expert, stated that the
issue of apportionment was a difficult one and that Brooks
presented a “quite complicated orthopedic case.”
In attributing
75% of Brooks’s impairment to his pre-existing impairment, Dr.
DeGruccio reported that Brooks’s prior injuries were so serious
and debilitating that they warranted the assessment of a higher
percentage of active impairment than the 50% that had been
assigned by Dr. Jacob.
The apportionment dispute (75/25 or 50/50) as to
impairment attributable to the pre-existing injury versus the
work injury was not related to the Guides –- nor was it subject
to resolution by resort to the Guides.
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Upon reconsideration,
the ALJ had rejected Dr. Jacob’s overall impairment rating in
favor or Dr. Gruccio’s figure because that number had to be
based on the most current edition of the Guides.
However,
although the impairment rating of Dr. Jacob had been flawed
because he used the wrong edition of the Guides, there was no
such taint or problem as to his apportionment number.
Therefore, the ALJ’s original finding with respect to
apportionment was not susceptible of amendment on
reconsideration.
Wells, supra, specifically directs that an ALJ
cannot alter his factual findings on reconsideration.
Under
these circumstances, we hold that the Board did not err in its
application of controlling precedent.
In summary, we hold that the Board did not err:
(1)
in reversing the ALJ’s finding that Brooks retained the ability
to do the work that he had done prior to his injury; (2) in
affirming the ALJ’S overall impairment rating as assessed by Dr.
DeGruccio under the most current edition of the Guides; and (3)
in holding that the ALJ erred when he amended his original
finding on the issue of apportionment of the impairment between
a prior injury and the work-related injury.
We affirm the opinion of the Workers’ Compensation
Board.
ALL CONCUR.
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BRIEF FOR APPELLANT:
D. Gaines Penn
Bowling Green, Kentucky
BRIEF FOR APPELLEE FLOYD
BROOKS:
Paul K. Murphy
Louisville, Kentucky
12
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