RENDERED: APRIL 7, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0542-WC

TRIPLE D COMMUNICATIONS APPELLANT 

v. 

PETITION FOR REVIEW OF A DECISION

OF THE WORKERS’ COMPENSATION BOARD

ACTION NO. WC-20-99284

ANTHONY SHRUM; HONORABLE 

AMANDA MICHELLE PERKINS, 

ADMINISTRATIVE LAW JUDGE; 

AND WORKERS’ COMPENSATION 

BOARD APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: ACREE, KAREM, AND TAYLOR, JUDGES.

TAYLOR, JUDGE: Triple D Communications (Triple D) petitions this Court to 

review an April 20, 2022, Opinion of the Workers’ Compensation Board (Board)

Vacating and Remanding an Opinion and Order of an Administrative Law Judge 

(ALJ) that dismissed Anthony Shrum’s claim for benefits. We affirm.
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Shrum was employed by Triple D on July 29, 2019, when Shrum 

claims to have suffered a work-related injury. In his claim for workers’ 

compensation benefits, Shrum alleged that he was struck in the face and head by a 

telephone pole. According to Shrum, he and two other employees of Triple D

were in the process of moving a pole when the pole accidently struck him in the 

face and head. Shrum alleged to have suffered traumatic facial and head injuries.

Triple D denied that Shrum suffered a work-related facial or head 

injury. As support, Triple D pointed to inconsistent statements given by Shrum 

concerning the cause and the facts giving rise to his facial and head injuries. In 

particular, Triple D cited to Shrum’s statements to various medical personnel, in 

the hours after the injury, that he had been riding a horse and hit a telephone pole.

By a November 22, 2021, Opinion and Order, the ALJ determined 

that Shrum failed to demonstrate that he suffered a work-related injury on July 29, 

2019. The ALJ reasoned:

The parties agree that Shrum suffered an injury on 

July 29, 2019. The parties disagree as to whether 

Shrum’s injury occurred at work. After reviewing the 

conflicting evidence, the ALJ finds that Shrum has not 

met his burden of proving his injury occurred at work. 

The ALJ finds the separate histories given at Lake 

Cumberland and UK [hospitals] are more reliable and 

persuasive, and relies on those records in conjunction 

with Shrum’s inconsistent testimony to find that he did 

not meet his burden of proof.

. . . . 
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At his deposition, Shrum testified he thought he 

told Lake Cumberland he fell off a horse because he 

remembered seeing a black cow right before the 

telephone pole hit him. Yet, Shrum denied ever telling 

Lake Cumberland he fell off a horse during the final 

hearing. Furthermore, Shrum did not provide an 

explanation for why he told UK he fell off a horse.

Shrum pointed to the time sheet and witness 

statements as support that he suffered a work injury. 

However, the ALJ finds the witness statements and time 

sheets are unreliable. First, the witnesses described the 

extent of Shrum’s injury very differently from how 

Shrum described it. Both witnesses stated that Shrum 

appeared dazed, but denied medical treatment. Yet, 

Shrum indicated he lost consciousness and woke up to 

Johnson performing CPR on him because he did not have 

a pulse. Shrum testified that there was blood all over the 

road and that Johnson transported him to Lake 

Cumberland and Regional Hospital. However, neither 

witness reported performing first aid on Shrum or taking 

him for medical treatment. Furthermore, the time sheet 

indicated that Johnson, Shrum, and Rowe worked until 

4:30 p.m., yet Shrum’s intake sheet at Lake Cumberland 

noted an arrival time of 4:21 p.m. If Johnson drove 

Shrum to the hospital, as he alleged, they could not have 

been working until 4:30 p.m.

Shrum also gave inconsistent testimony regarding 

the circumstances of the injury. Shrum testified that he 

was directing traffic and while he was attempting to slow 

down a female driver, the telephone pole hit him. At one 

point he testified that the woman did not stop to check on 

him and at another point he testified that she stopped to 

check on him because she thought he was dead. Shrum 

stated that Johnson took him straight to the hospital, but 

also gave a history of waiting for an ambulance on the 

scene of the injury. In his witness statement, he said he 

went home after work and then decided to go to the 
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hospital because he was still dazed and in pain. At this 

deposition and hearing, he testified that he went straight 

to the hospital and never returned home.

Shrum stated that after he regained consciousness 

he jumped to his feet and Johnson told him his jaw was 

split in half and that he (Johnson) had performed CPR on 

him because he didn’t have a pulse. Shrum wanted to see 

the extent of his injuries, “so I got my phone out and I 

pulled it – the camera open, because on my lock screen I 

got a phone and a camera option. So I flipped it over so I 

can see it and I seen how it was split, so I went ahead and 

just took two pictures real quick.” (Depo. 27:17-21). 

However, the photos he submitted are in contradiction to 

his testimony. The first time-stamped photo shows him 

sitting in the truck at 1:36 p.m. The next photo shows a 

picture of the alleged blood on the pavement at 1:44 p.m. 

Shrum testified that he was the person that took the 

photos, so he would have been in the truck to take a 

picture of himself and then exited the truck to take a 

picture of the pavement.

November 22, 2021, Opinion and Order at 5-7. Thus, the ALJ dismissed Shrum’s 

claim. Being dissatisfied with the ALJ’s Opinion and Order, Shrum sought review 

with the Board.

In an April 20, 2022, Opinion, the Board vacated and remanded the 

ALJ’s Opinion and Order, instructing the ALJ to make additional findings on the 

work-related injury issue, based on the entirety of the evidence. The Board 

concluded there was overwhelming evidence that Shrum was injured at work and 

the ALJ failed to summarize and address relevant evidence regarding this issue. 

Triple D now seeks review by this Court. 
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To begin, this Court’s review is limited to whether “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.” W. Baptist 

Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). Our review proceeds 

accordingly. 

Triple D contends that the Board exceeded its authority and 

improperly vacated the ALJ’s determination that Shrum failed to demonstrate that 

he suffered a work-related injury. Triple D asserts that the Board usurped the 

ALJ’s role as fact-finder. Triple D believes the Board impermissibly weighed the 

evidence and cited to unreliable evidence in reaching its decision.

In workers’ compensation proceedings, it is well-established that the 

ALJ is the fact-finder and possesses the discretion to judge the credibility of and/or 

to weigh the evidence. Miller v. E. Ky. Beverage/Pepsico, Inc., 951 S.W.2d 329, 

331 (Ky. 1997). However, it is equally accepted that an ALJ’s decision may be 

vacated or reversed where the evidence compels a different result. Fuertes v. Ford 

Motor Co., 481 S.W.3d 808, 810 (Ky. 2016).

In its April 20, 2022, Opinion, the Board undertook an extensive and 

detailed review of the evidence and determined that the evidence compelled a 

finding that Shrum did suffer a work-related face and head injury. We, too, have 

reviewed the evidence, the ALJ’s Opinion and Order, and the Board’s Opinion. 
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And, we are compelled to agree with the Board and cite to its meticulous summary 

of the evidence:

Because the statements of all witnesses to the 

events of July 29, 2019, and Triple D’s work records 

unanimously establish Shrum was hit on the head by a 

swinging telephone pole on the date in question, we 

vacate the November 22, 2021, decision and the 

subsequent order. 

We note the following facts:

· Shrum, Rowe, and Johnson stated Shrum was 

struck by a swinging telephone pole.

· Triple D’s Employee Injury Form states Shrum 

was hit in the jaw by a swinging telephone pole 

knocking him down.

· Triple D’s wage records firmly demonstrate all 

three employees were at work on the date in 

question. 

· Ross’[s] statement and his hearing testimony 

confirms the employees’ account of the telephone 

pole hitting Shrum in the head. This was also 

confirmed by Triple D’s “First Report of Injury” 

prepared by it on July 30, 2019.

There was no other apparent reason for Triple D to 

insist Shrum present himself at Fast Pace on July 30, 

2019, other than he was hit in the head by a swinging 

telephone pole and required medical treatment. On July 

30, 2019, Shrum, after being released earlier that 

morning, was required by Triple D to drive from Russell 

Springs to Campbellsville where he was seen, according 

to Fast Pace records, for injuries sustained when he was 

struck in the “right side of the face around 1300 on 

7/29/19.” Regardless of the inconsistent and incoherent 
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histories Shrum provided to LCRH and UKMC 

[hospitals] and his testimony regarding what occurred 

after he was hit in the head by a swinging telephone pole, 

there is no question, pursuant to multiple records of 

Triple D, that Shrum was struck in the head by a 

telephone pole weighing two tons. Moreover, there was 

no coincidence Shrum was treated for severe facial 

injuries at LCRH two to three hours after being hit in the 

face necessitating his transfer to UKMC for extensive 

medical treatment. Thus, the evidence compels a finding 

Shrum was hit in the face by a swinging telephone pole 

on July 29, 2019. 

The following facts are uncontradicted:

· Shrum went to work with Johnson and arrived in 

Campbellsville at 7:00 a.m.

· Shrum, Johnson, and Rowe travelled to Loretto 

next to Makers Mark Distillery. 

· All witnesses to the event recounted that on the 

afternoon of July 29, 2019, Shrum was hit with a 

swinging telephone pole in the head.

· Triple D’s Employee Injury Report reveals the 

incident occurred at 2:47 on July 29, 2019. A 

telephone pole broke loose striking Shrum’s jaw 

knocking him to the ground.

· The timesheets of Triple D establish Shrum 

worked from 7:00 a.m. to 4:30 p.m. All times are 

Eastern Standard Time.

· Shrum gave various histories related to being 

thrown off a horse on July 29, 2019.

· The doctors at LCRH and UKMC [hospitals] 

diagnosed a mandibular fracture.
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· Shrum was transferred to UKMC early in the 

morning of July 30, 2019, where he continued to

repeat the history of falling off a horse. There the 

impression was acute displaced fracture of the 

mandibular body anteriorly. A Plastic Surgery 

Facial Traumatic consultation was noted.

· On July 30, 2019, at the request of Triple D, 

Shrum appeared at Fast Pace where personnel 

noted a workers’ compensation injury involving a 

telephone pole to the face around 1300, on July 29, 

2019. Shrum did not indicate he had fallen off a 

horse.

· The injury was reported to Triple D on July 30, 

2019, and it prepared a First Report of Injury on 

that date and forwarded it to the Department of 

Workers’ Claims.

· The two notes of PriMedical, presumably 

providing case management services to Triple D’s 

insurance carrier, reflect a swinging telephone pole 

hit Shrum’s head causing lost consciousness -

broke jaw - ORIF right mandibular fracture with 

MMF on July 31, 2019. A report prepared by Tina 

Hyde reflects Shrum sustained a work-related 

injury and reported a pole hit him in the head at 

such a rate he could not get out of the way. There 

is no history in either of these documents 

indicating Shrum fell off a horse.

· The records of UK Plastic Surgery dated August 

6, 2019, reveal the following: Chief Complaint –

The patient presents to the office today with/for s/p 

ORIF right parasymphyseal mandibular fracture 

with MMF on 7/31/19. The History of present 

Illness – Mr. Shrum is a 25 yo male presenting to 

clinic today s/p ORIF right parasymphyseal 

mandibular fracture with MMF on 7/31/19. 

Patient reports doing well. He states he [had] pain 
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in his jaws and teeth. Reports he has been 

drinking ensure, Gatorade, smoothies, etc. Denies 

fever, chills, or n/v. Patient states his bite feels 

“off”, feels like it is set off to the left and back a 

little. The records dated June 17, 2020, reveal the 

following: History of Present Illness – Patient is a 

26 yo male who presents for follow-up of ORIF of 

mandible fracture. Patient states that he 

intermittently has pain in the right side of his 

mandible. He also reports having a left 

mandibular first molar that has recently caused 

him problems. He reports his occlusion is 

different than his pre-morbid occlusion. Active 

Problems – Mild cognitive impairment (G31.84), 

Post-traumatic headache (G44.309). Past Medical 

History – History of work related injury.

· The records from UK Neuroscience Institute 

reflect personnel saw Shrum for evaluation of a 

traumatic brain injury because he sustained a 

traumatic injury in July 2019 when his head was 

hit with a pole resulting in a fractured jaw. There 

is no mention of Shrum falling off a horse. Mild 

cognitive impairment was assessed.

· Dr. Leung’s report reveals he received a history 

that Shrum sustained a work-related injury on July 

29, 2019, when he was hit by a telephone pole in 

the right jaw. 

· Dr. Barrett’s report reflects that while at work a 

telephone pole swung into Shrum hitting him in 

the face.

· Dr. Auton’s report reveals Shrum suffered a 

work-related injury on July 29, 2019, when he was 

hit by a telephone pole on the right side of the face. 

Notably, Shrum was referred to Dr. Auton by Tina 

Hyde with PriMedical.
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· After Shrum was discharged from UKMC, all 

medical providers subsequently treating Shrum, 

including UK Neuroscience Institute, UK Plastic 

Surgery, Dr. Leung, Dr. Barrett, and Dr. Anton did 

not recount a history nor offer an opinion that 

Shrum had sustained a work-related injury as a 

result of falling off a horse. Dr. Leung initially 

diagnosed cognitive impairment post-concussion 

syndrome. Dr. Barrett diagnosed retrograde 

amnesia following a concussive event and 

completely discounted Shrum’s story of falling off 

a horse. Similarly, UK Neuroscience Institute and 

UK Plastic Surgery assessed a cognitive 

impairment. Dr. Anton did not provide a 

diagnosis. Rather, she determined the results of 

the cognitive testing were judged to be an accurate 

reflection of his current level of functioning.

([E]mphasis added[.]) 

While at LCRH and UKMC [hospitals], between 

either 4:16 or 5:28 p.m. on July 29, 2019, and 4:00 a.m. 

on July 30, 2019, after being hit in the head with a 

swinging telephone pole, Shrum provided multiple 

histories referencing being thrown or knocked off a 

horse.

At LCRH Shrum offered the following histories:

· Shrum first stated he was thrown off a horse.

· He also stated four hours earlier (July 29, 2019) 

he was thrown off his horse into a telephone pole 

and onto the ground. He struck his head, and this 

was witnessed by a friend helping him. 

· Two of LCRH’s diagnostic reports reflect he 

stated he fell or was thrown from a horse, one of 

which added he hit a tree.

UKMC recorded the following histories:
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· He stated he was training a horse and was bucked 

off and his face hit a pole.

· He was “bucked off horse hit telepole.” 

· He was breaking a horse and bucked off and hit a 

pole face first. He was riding a horse at high 

speed, turned a corner and struck a telephone pole 

knocking him off the horse.

· He was riding his horse yesterday afternoon (July 

29, 2019) when the horse took a sharp turn around 

a telephone pole that led him to being thrown off.

Since the above-cited testimony indicates the 

purported fall off a horse occurred on July 29, 2019, this 

begs the question - at what point did Shrum ride and fall 

off a horse on July 29, 2019? The records of Triple D 

establish Shrum was at work from 7:00 a.m. to 4:30 p.m. 

Before 7:00 a.m., he was traveling with Johnson to work. 

His co-workers stated he was hit by a swinging telephone 

pole and returned to the Campbellsville shop. Shrum 

testified he was taken to the hospital by Johnson 

immediately after being hit by the telephone pole. Shrum 

simply did not have the opportunity before or after 

getting hit in the head by a swinging two-ton telephone 

pole to ride a horse. There is no testimony he rode the 

horse at or any time before lunch. Importantly, Shrum 

identified more than once being hit by a telephone pole 

or a pole in the multiple histories provided to LCRH and 

UKMC [hospitals]. 

The ALJ stated the parties agree Shrum suffered an 

injury on July 29, 2019, but disagreed as to whether the 

injury occurred at work. However, the statements of 

Johnson, Rowe, and Ross as well as Triple D’s Incident 

Report and First Report of Injury establish Shrum was hit 

in the jaw by a swinging telephone pole. In fact, all of 

Triple D’s records, including all eyewitness statements, 
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firmly demonstrate Shrum was injured at work on July 

29, 2019. Notably, Johnson was the individual who lost 

control of the telephone pole which swung and hit Shrum 

in the face. Despite the overwhelming evidence in the 

record supporting the fact Shrum was hit in the face by a 

telephone pole, the ALJ made a finding that the varying 

histories Shrum provided to LCRH and UKMC 

[hospitals] are more reliable and persuasive. . . . Further, 

the medical opinions offered by Drs. Leung and Barrett 

establish that after he was hit in the face by a swinging 

telephone pole, he suffered cognitive impairment. This 

was corroborated by two UKMC medical departments 

subsequently treating Shrum after his release from

UKMC on July 30, 2019.

Not surprisingly, the inconsistent histories Shrum 

provided to LCRH and UKMC [hospitals] indicate he did 

not have a clear understanding of how he was injured on 

July 29 2019. . . .

. . . .

Notably, after previously testifying at his 

deposition that he was immediately transferred to 

UKMC, Shrum testified at the hearing that he was sent 

home because his insurance did not provide coverage. 

Shortly thereafter at the hearing, Shrum again testified 

that he was transferred to UKMC. Shrum’s recollection 

of the events do not negate the fact that all of the 

witnesses who were present in the afternoon of July 29, 

2019, in Loretto said Shrum was hit in the jaw by a 

swinging telephone pole. Shrum’s testimony and Triple 

D’s records give rise to the question, what happened after 

Shrum was struck by a swinging telephone pole? 

Specifically, did Shrum leave work immediately after the 

injury or did he return to Campbellsville at 4:30 p.m. and 

then go to the hospital? In any event, the answer to this 

question does not rebut the medical and lay evidence 

reflecting Shrum was hit in the head by a swinging thirtyfoot long telephone pole.
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Given the eyewitness statements, Shrum’s injuries, 

and the unrebutted diagnoses of Dr. Barrett, Dr. Leung, 

UK Plastic Surgery Department, and UK Neuroscience 

Department, Shrum’s inability to initially provide a 

cogent and a consistent account of how he was injured is 

not surprising. We find no evidence in the record 

corroborates Shrum’s statements to his initial medical 

providers that he was injured when he was either on a 

horse or thrown from a horse on July 29, 2019. 

Further, if as the ALJ found, Triple D’s timesheet 

is unreliable, then Shrum could have conceivably 

appeared at LCRH at 4:16 p.m. The ALJ stated the 

witnesses described the injury very differently from how 

Shrum described it, as they noted he was dazed but 

denied medical treatment. The ALJ found significant 

Shrum’s testimony that he lost consciousness and woke 

up to Johnson performing CPR on him because he did 

not have a pulse. The ALJ also found significant that 

none of the witnesses reported performing first aid on 

Shrum or taking him for medical treatment. She also 

referenced the timesheets indicating Shrum, Johnson, and 

Rowe worked until 4:30 p.m., and Shrum’s intake sheet 

at LCRH noted an arrival of 4:21 p.m. Further, she noted 

if Johnson drove Shrum to the hospital as Shrum 

contended, then they could not have worked until 4:30 

p.m. This presupposes the handwritten notation at 4:21 

p.m. on the intake sheet is accurate, especially in light of 

the next page of the records which reveals Shrum was 

seen by a physician over an hour later.

The ALJ also failed to recognize the intake sheet 

of LCRH establishing an arrival of 4:21 p.m. supports 

Shrum’s statement that Johnson drove Shrum to the 

hospital immediately after the accident occurring at 2:42 

p.m. or 2:47 p.m. In any situation, Shrum had to have 

ridden with Johnson after leaving work from Loretto or 

Campbellsville. Thus, either Shrum worked until 4:30 

p.m. and then went to the hospital or he was taken by 
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Johnson straight to the hospital. However, none of the 

above findings and conclusions address or rebut the fact 

that all eyewitnesses and Triple D’s Employee Injury 

Form state Shrum was hit in the head by a swinging 

telephone pole. By all accounts, Shrum did not fall into 

the telephone pole, the telephone pole swung into him. 

Notably, the ALJ did not state she rejected the portion of 

the witnesses’ statements indicating Shrum was hit in the 

head by a swinging telephone pole. Rather the ALJ 

addressed the inconsistency of Shrum’s testimony and 

the portions of witnesses’ statements as to what occurred 

after Shrum was hit in the head by the swinging 

telephone pole that did not coincide with Shrum’s 

accounts of what occurred post-injury. The ALJ did not 

address the fact that Shrum, Johnson, and Rowe agree 

Shrum was hit by a swinging telephone pole. Although 

the ALJ may have found other portions of the witnesses’ 

statements and Triple D’s timesheet unreliable and 

inconsistent with other accounts of what occurred after 

the telephone pole hit Shrum, the witnesses’ statements 

unanimously establish Shrum was hit in the face with a 

telephone pole on July 29, 2019.

. . . . 

Moreover, aside from multiple inconsistent histories 

provided by Shrum within two to twelve hours after 

being struck in the head by a swinging thirty-foot two-ton 

telephone pole, there is no other evidence Shrum was 

riding a horse on the date in question. Further, Shrum’s 

testimony that he has not been on a horse since he was 

seventeen years old is not contradicted by the record. In 

contrast, Triple D’s business records, the statements of 

Triple D’s employees, the case manager’s reports, and 

Dr. Auton’s report establish Shrum sustained a workrelated injury. So too do the records of Fast Face, UK 

Plastic Surgery and Neuroscience Departments.
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April 20, 2022, Workers’ Compensation Board Opinion at 38-44, 46-48, and 53

(footnotes omitted).

Considering the evidence as a whole, we agree that evidence,

primarily generated by Triple D, establishes that Shrum suffered a work-related 

injury to his face and head after being accidentally hit by a telephone pole while 

working for Triple D. Thus, we agree with the Board that this matter must be 

remanded to the ALJ for further proceedings.1

In sum, we do not believe the Board erred in its application of the law 

or in its assessment of the evidence as to cause gross injustice. See W. Baptist 

Hospital, 827 S.W.2d at 687-88.

For the foregoing reasons, we affirm the Opinion of the Workers’

Compensation Board.

ALL CONCUR.

BRIEF FOR APPELLANT:

Allison M. Helsinger

Mason H. Proffitt

Lexington, Kentucky

BRIEF FOR APPELLEE ANTHONY 

SHRUM:

John W. Spies

Louisville, Kentucky

1 We deem any remaining contentions of error to be moot or without merit.