SHOREWOOD PACKAGING V. FLOYD MITCHELL BROOKS, JR., ET AL
Annotate this Case
Download PDF
IMPORTANT NOTICE
NOT TO BE PUBLISHED_ OPINION
THIS OPINIONIS DESIGNA TED "NOT TO BE
PUBLISHED. " PURSUANT TO THE RULES OF
CIVIL PROCED URE PROMUL GA TED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS A UTHORITY INANY OTHER
CASE INANY COURT OF THIS STA TE.
RENDERED : OCTOBER 20, 2005
NOT TO BE PUBLISHED
~uyrrmr 01ourf of ~onfu:Tk#,L
2004-SC-000946-WC
SHOREWOOD PACKAGING
V
APPEAL FROM THE COURT OF APPEALS
2004-CA-000949
WORKERS' COMPENSATION BOARD NO . 2003-WC-00502
FLOYD MITCHELL BROOKS, JR . ; DR.
EUGENE E . JACOB ; HON . JAMES L .
KERR, ADMINISTRATIVE LAW JUDGE
AND WORKERS' COMPENSATION
BOARD
APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
This appeal is from an opinion of the Court of Appeals which upheld the
Workers' Compensation Board . The Board had affirmed in part, vacated in part,
reversed in part and remanded a decision of the Administrative Law Judge.
The employer raises two issues on appeal: 1) whether the latest available edition
of the American Medical Association Guides to the Evaluation of Permanent
Impairment must be used for apportioning nonwork-related disabilities ; and 2) whether
the Board erred by substituting its judgment for that of the ALJ as to the weight of the
evidence on a question of fact, specifically, the finding by the ALJ on physical capacity.
Brooks frames the issues as follows : whether the Board properly ruled that the
ALJ cannot change his finding of fact on prior active disabilities on a petition for
reconsideration, and whether the Board acted within its statutory authority in vacating
the ruling of the ALJ on the 3 multiplier.
Brooks was employed by Shorewood Packaging as a press operator of a large
printing press . Physical requirements of the job include climbing, kneeling, stooping,
squatting, standing, lifting, pulling, walking and working in awkward positions. Brooks
injured his right knee at work on February 6, 2002, when his right foot became lodged
between two pallets loaded with paper. Apparently Brooks did not realize that his foot
was caught when he turned his leg resulting in an injury to his right knee. He tore his
ACL, his medial collateral ligament and his medial meniscus . At the time of his injury,
he was already under the care of Dr. Jacob for knee problems and the doctor
performed ACL reconstructive surgery on the knee in May of 2002 .
Before his knee injury at Shorewood, he had sustained an injury to his right knee
in 1998 while playing softball. The injury required multiple procedures, including
surgery, in 2000 and 2001 . He was able to return to his work as a press operator in
October 2001, without any restrictions . Brooks received maximum medical
improvement in November 2002. Brooks testified that he was advised in the fall of
2002 that, based on the medical reports of Dr. Jacob and Dr. DeGruccio, he could not
return to work at Shorewood . He told the adjuster for the workers' compensation
insurance company that in the fall of 2000, he started a business which designed, sold
and installed custom home audio and video systems.
In 2003, Brooks filed a workers' compensation claim alleging that continuing pain
in his knee prevented him from standing for very long . He also stated that he could not
2
run, kneel, crawl or squat -- all activities required by his work at Shorewood . Prior to the
filing of the claim, the employer engaged two private investigators to document his dayto-day activities .
In response to the claim by Brooks for enhanced income benefits for workers
who are disabled from performing their prior job requirements pursuant to KRS
342 .730(1), Shorewood presented the report generated by its surveillance team
including two video tapes . At the ALJ hearing, Brooks responded to the testimony by
the investigators that he had not performed any heavy work at the various construction
sites where they had filmed him carrying a small aluminum stepladder. He described
his work as involving "going out and looking at jobs," "putting proposals together,"
"occasionally helping" those with whom he had subcontracted as well as ascertaining
that the installation of the systems had been done properly.
The ALJ was presented with conflicting evidence as to the degree and severity
of the preexisting active impairment of Brooks . Dr. Jacob, an orthopedic surgeon, who
had performed extensive reconstruction in May of 2000 as well as treating all of the
previous knee problems, stated that Brooks had a 9% impairment, 50% of which was
preexisting . To this 4-1/2% impairment rating, Dr. Jacob added 4% because of his
pain, arriving at a total compensable impairment of 8-1/2% . The medical expert
produced by Shorewood, Dr. DeGruccio testified that Brooks had sustained a 20%
impairment due to his right knee injuries and he attributed 75% of the impairment to the
prior active condition with the result that 5% was assessed as a work-related injury .
The ALJ accepted the opinion of Dr. Jacob with respect to the degree of impairment
attributable to the right knee injury as well as the 50/50 apportionment between the prior
activity and the work-related activities . The ALJ rejected the claim for the application of
3
the triple multiplier provided in KRS 342 .730(1)(c). He based his decision on the
surveillance tapes and concluded that Brooks retained the physical capacity to return to
the type of work he performed at the time of the injury . Consequently Brooks was
awarded $30.96 per week for a period not to exceed 425 weeks based on the
impairment rating of 8-1/2%.
Both Brooks and Shorewood filed for reconsideration and both were denied .
However, the ALJ, in response to the motion by Shorewood, amended his decision and
awarded benefits based on the 5% permanent partial impairment rating given by Dr.
DeGruccio . In doing so, the ALJ acknowledged that Dr. Jacob had used an incorrect
edition of the Guides .
In a 2 to 1 decision, the Board determined that the ALJ had incorrectly denied
the enhanced income benefits because the evidence was not sufficient to support the
finding that Brooks retained the physical capacity to perform his pre-injury employment.
The Board stated that the surveillance tapes standing alone did not constitute
substantial evidence so as to support such a finding .
The Board rejected the argument by Brooks that the ALJ had erred when he
amended his previous decision to abandon the opinion of Dr. Jacob and rely instead on
the overall impairment rating given by Dr. DeGruccio . It did agree with Brooks that the
apportionment was a separate matter and that the ALJ was not permitted to reconsider
his opinion as to the apportionment of the preexisting active impairment . The Board
stated that even though the impairment rating given by Dr. Jacob was properly rejected
as not being based on the proper edition of the Guides , his opinion as to the
percentage of the impairment attributed to the work injury was not fatally flawed. It
stated that the opinion of Dr. Jacob on that issue represented a distinct medical opinion
4
separable from the impairment rating and that portion of the opinion by Dr. Jacob was
substantial evidence .
The Board also stated that the decision by the ALJ to adopt the opinion of the
employers' medical expert was a departure from the rule announced in Wells v. BethElkhorn Coal Corp, 708 S.W .2d 104 (Ky.App. 1985), which held that on a petition for
rehearing, an ALJ may not consider the case on the merits or change his factual
findings . The Court of Appeals affirmed the opinion of the Board .
The ALJ was faced with conflicting evidence as to the severity and degree of the
preexisting active impairment . Dr. Jacob related that Brooks had a 9% impairment,
50% of which was preexisting in a prior active condition . Thus, he arrived at an initial 41/2% impairment rating to which he added 4% because of the patient's pain and arrived
at a total compensable impairment of 8-1/2% . Dr. DeGruccio, the expert for the
employer, declared that Brooks had sustained a 20% impairment because of his right
knee injuries, however, he attributed 75% of the impairment to a prior active condition
with the result that 5% was assessed as to the work-related injury . The ALJ accepted
the opinion of Dr. Jacob with regard to the degree of impairment attributable to the right
knee injury as well as the 50% apportionment between the prior active condition and
the work-related injury . Shorewood filed a petition for reconsideration and the ALJ
acknowledged that Dr. Jacob had used the incorrect edition of the Guides and granted
the petition. The issue involved was whether the 4th or 5th edition of the Guides should
be used in this circumstance .
Both the Board and the Court of Appeals determined that the ALJ erred on the
issue as to whether the apportionment of impairment is controlled by the latest edition
of the AMA Guides . Permanent impairment rating is defined in KRS 342 .0011(35) as
5
the percentage of whole body impairment caused by the injury as determined by the
latest available issue of the Guides . Consequently, an apportionment of the AMA
impairment under KRS 342.730(1)(e) for the purpose of excluding nonwork-related
disability has no reference to the Guides and is not determined under the Guides
principles.
Neither George Humfleet Mobile Homes v. Christman, 125 S .W .3d 288 (Ky .
2004), nor Hill v. Sextet Mining Corp . , 65 S.W .3d 503 (Ky. 2001), nor KRS 342.730
supports the arguments presented by the employer.
Apportionment of an impairment is a separate and distinct medical opinion based
on the extent of the preexisting condition when compared to the condition of the
employee after the work-related injury. The Guides have no applicability in making
such an apportionment . As noted by the Court of Appeals, the impairment rating was
properly rejected as not based on the current edition of the Guides , but the opinion of
Dr. Jacob regarding the percentage of impairment attributable to the work injury was not
fatally flawed. The opinion by Dr. Jacob on this issue represents a distinct medical
opinion separate from the impairment rating he assigned and is substantial evidence .
Here, sufficient medical evidence was presented by both the employer and the
employee and the ALJ believed the testimony of Dr. Jacob . It is well settled that the
ALJ as a finder of fact has the sole authority to determine the weight, credibility,
substance and inferences to be drawn from the evidence . Where there is conflicting
evidence, the ALJ may choose whom and what to believe. Pruitt v. Bugg Bros . , 547
S .W.2d 123 (Ky .1977) . Additionally the ALJ may choose to believe part of the evidence
and disbelieve other parts . Pruitt, supra . In this situation, Dr. Jacob had the
opportunity to view both before and after the condition of the employee in regard to the
6
apportionment as well as all other matters . Thus the substantive evidence presented by
him was more than sufficient to support the findings of the ALJ .
The ALJ held that Brooks retained the physical capacity to return to the type of
work he had performed at the date of the injury and did not enhance the benefits by a
factor of 3 as permitted by KRS 342 .730(1)(c) . He reached this conclusion based on
his review of the surveillance tapes presented by the employer . The Board vacated the
findings of the ALJ as insufficient and remanded for an additional finding to support the
ultimate conclusion. The Court of Appeals affirmed that decision .
The Board acted within its statutory authority in vacating the ruling by the ALJ on
the multiplier. The Board's scope of review is determined by KRS 342 .285 and
includes ascertaining whether any decision of the ALJ was supported by substantial
evidence . The review accorded to the Court of Appeals is limited to situations where
the Board has overlooked or misconstrued controlling statutes or precedents or
committed an error in assessing the evidence so flagrant as to cause a gross injustice .
Western Baptist Hosp. v. Kelly, 827 S .W .2d 685 (Ky. 1992) . The ALJ founded his
decision on his review of the surveillance tapes . Upon additional review of the same
tapes, we must conclude that the decision of the ALJ was inappropriate and erroneous .
As enunciated by the Board, the video tapes show Brooks carrying a stepladder and
other lightweight objects to and from a pickup truck. The tapes do not show him
working at a construction site. They do not show him stooping, crawling, kneeling,
lifting heavy objects or working in an awkward position.
Again, as found by the Board, a proper analysis of whether the employee is
physically capable of performing the same job as he was performing at the time of his
injury must take into account the component parts of the job requirements . A proper
7
consideration requires a comparison of the physical requirements of the pre-injury
employment and the post-injury capabilities based on a totality of the lay and medical
evidence in the record . See Carte v. Loretto Motherhouse Infirmary, 19 S.W.3d 122
(Ky .App. 2000). In this situation the tapes do not, standing alone, constitute substantial
evidence to support a finding that the employee is physically capable of performing preemployment injury on a regular and sustained basis. Thus, the findings of the ALJ are
insufficient and the order of remand was correct. We agree with the Court of Appeals
and the Board that the AU had no reasonable basis to conclude that the employee had
the same range of mobility to move and work that he had prior to his injury .
The decision of this Court is to affirm the Court of Appeals and the Board in their
vacation for further proceedings the findings of the AU as regards the denial of the 3
multiplier, as well as their opinions holding that the ALJ findings of fact on
apportionment for prior active disability cannot be changed on a petition for
reconsideration .
The opinion of the Court of Appeals is affirmed .
All concur.
COUNSEL FOR APPELLANT :
Dennis Gaines Penn
English, Lucas, Priest & Owsley
1101 College Street
P .O. Box 770
Bowling Green, KY 42102
COUNSEL FOR APPELLEE:
Paul K. Murphy
623 West Main Street, Suite 100
Louisville, KY 40202
COUNSEL FOR WORKERS' CLAIMS:
William P . Emerick
Prevention Park
657 Chamberlin Ave
Frankfort, KY 40601
PRO SE :
Dr. Eugene E . Jacob
100 Caritas Medical Plaza One
4402 Churchman Avenue
Louisville, Ky 40215
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.