IMPORTANT NOTICE

NOT TO BE PUBLISHED OPINION

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PURSUANT TO THE RULES OF CIVIL PROCEDURE 

PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), 

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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,

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ACTION.

 
RENDERED: MARCH 25, 2021

NOT TO BE PUBLISHED

Supreme Court of Kentucky

2020-SC-0215-WC

PACKERS SANITATION SERVICES APPELLANT

ON APPEAL FROM THE COURT OF APPEALS

V. NO. 2019-CA-1846

WORKERS’ COMPENSATION BOARD NO. WC-14-66805

JORGE MARTELL CABRERA;

HONORABLE JOHN BARRY COLEMAN, 

ADMINISTRATIVE LAW JUDGE; AND

WORKERS’ COMPENSATION BOARD

APPELLEES

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Packers Sanitation Services appeals from the Court of Appeals’ opinion 

affirming the Workers’ Compensation Board’s opinion affirming the 

Administrative Law Judge’s (ALJ) award of permanent-partial disability benefits 

to Jorge Martell Cabrera. Asserting this case differs from “the run-of-the mill” 

substantial-evidence case, Packers Sanitation argues the Court of Appeals

erred in affirming the ALJ’s award because, despite other evidence of record, 

surveillance-video footage of Cabrera submitted by Packers Sanitation proves 

Cabrera hoodwinked the medical experts by faking his symptoms, resulting in 

an arbitrary award. We find no error, and we affirm the Court of Appeals.
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I. FACTS

Cabrera worked for Packers Sanitation providing cleaning services at the 

JB Swift meat processing plant in Louisville, Kentucky. In the course and 

scope of his employment, Cabrera slipped as he was cleaning a metal conveyor 

belt and both arms became caught in the works of the conveyor, resulting in

severe cuts to both arms. Treatment required emergency debridement and 

surgery. Infection necessitated repeated later surgical procedures and removal 

of muscle tissue. Cabrera eventually returned to work in a different capacity 

and eventually was promoted to a supervisory position at a higher rate of pay. 

He sought workers’ compensation benefits for both physical and psychological 

injuries for which the ALJ awarded benefits.

Packers Sanitation appealed to the Board, arguing the ALJ’s findings 

supporting the benefits were a sham, asserting, as it later did to the Court of 

Appeals and now to us on appeal, that surveillance video clips it introduced 

into the record conclusively refute Cabrera’s claims of functional impairment

by showing him going about activities of daily living using his hands and arms 

without apparent difficulty. Packers Sanitation contends that if the Board had 

simply watched the video clips, then it would have reached the inescapable 

conclusion that the medical and psychological evidence relied upon by the ALJ 

was bogus, rendering the ALJ’s award of benefits arbitrary and requiring 

reversal.
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II. ANALYSIS

A. The Board and Court of Appeals did not err in failing to reverse the 

ALJ’s factual findings because they were supported by substantial 

evidence and affirmance was not an abuse of discretion.

At the hearing before the ALJ, Packers Sanitation introduced a series of 

video clips of Cabrera prepared by a private investigator hired in connection 

with separate civil litigation between Cabrera and Swift. The video shows 

Cabrera engaging in activities using his hands and arms. Packers Sanitation 

avers the video evidence alone is conclusive proof that Cabrera exaggerated his 

injuries and retains minimal functional impairment despite the conflicting 

evidence from Cabrera and the medical reports of record. Because Packers 

Sanitation finds the video to be conclusive, it argues that the Board could not 

have reviewed the surveillance video, because if it had, the Board would have 

been constrained to conclude that Cabrera was a fraud and the ALJ’s finding of 

impairment arbitrary. 

Appellate review in workers’ compensation proceedings is limited to

correcting the Board where it has misconstrued statutes or precedent or 

committed error in assessing evidence so flagrant as to cause gross injustice.1 

We will not reverse the ALJ’s decision solely because there is evidence in the 

record that appears contrary to the factual findings of the ALJ.2 Of course, the 

ALJ’s factual findings must be supported by substantial evidence, which 

 

1 W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687–88 (Ky. 1992).

2 Whittaker v. Rowland, 998 S.W.2d 479, 482 (Ky. 1999).
4

requires evidence of substance and consequence and trustworthy enough to 

induce conviction in reasonable minds.3

We find, as the Court of Appeals found, that substantial evidence in this 

record supports the Board’s decision to uphold the ALJ’s findings. Packers 

Sanitation dismisses as preposterous the Board’s acceptance of the ALJ’s 

findings of fact considering the video. The influence the videos have on the 

trier of fact is a question of interpretation. As the ALJ explained, the video may 

show Cabrera capable of physical activity beyond what he described in the 

record, but the objective evidence of his condition, as reflected in the medical 

records, indicates he is impaired and that he did not believe Cabrera to be 

“malingering or faking.” Overall, the ALJ’s findings discuss the video

considering all the evidence presented, and his findings conclude that the video 

did not overcome the proof of Cabrera’s impairment. 

The weight given to the video is a question of fact, and it is not conclusive 

as to Cabrera’s impairments, especially considering the conflicting evidence 

presented by Cabrera. The ALJ concluded that the objective medical evidence 

was more persuasive. And we find the order sufficiently described why the ALJ 

found the video to be inconclusive and why he ultimately found Cabrera to be 

impaired. We hold it was not error for the Board to affirm the order awarding 

Cabrera partial-permanent disability benefits. 

 

3 Smyzer v. B.F. Goodrich Chem. Co., 474 S.W.2d 367, 369 (Ky. 1971).
5

B. The ALJ did not err as a matter of law by relying on Dr. Ruth’s 

initial report.

In 2016, Cabrera underwent a psychological impairment assessment by 

Dr. Douglas Ruth, who found he suffered from major depressive disorder and 

post-traumatic stress disorder with an overall psychological impairment of 8% 

because of his work-related injury. Later, after seeing the video footage of 

Cabrera, Dr. Ruth concluded Cabrera was likely malingering. Dr. Ruth then 

gave Cabrera a second assessment that was like the first and contained several 

self-report measures. While Cabrera performed similarly on the self-report 

measures, Dr. Ruth found the video footage indicated he was capable of more 

than his self-report measures revealed. Ultimately, Dr. Ruth changed his 

assessment of Cabrera to a 0% psychological impairment rating. 

The ALJ assigned Cabrera an 8% psychological impairment rating and 

relied on Dr. Ruth’s initial assessment in doing so. Packers Sanitation argues 

that since Dr. Ruth changed his diagnosis after viewing the video, the initial 

8% rating is erroneous and cannot support the ALJ’s findings because an 

erroneous medical assessment cannot be the basis of an award.

Packers Sanitation relies on Cepero v. Fabricated Metals Corporation4 to 

support its contention. In Cepero, we held that medical testimony given in 

reliance on incomplete or inaccurate records cannot be used as substantial 

evidence to support an ALJ’s factual findings.

5 In Cepero, the ALJ’s conclusion 

 

4 132 S.W.3d 839, 843 (Ky. 2004).

5 Id. 
6

that the plaintiff’s condition was caused by a work-related injury relied on the 

testimony of a doctor who had evaluated the plaintiff.

6 But the plaintiff failed 

to inform the doctor of the extent of his previous injury and omitted the fact 

that the previous injury was severe.7 The ALJ’s findings relied upon the 

doctor’s flawed assessment.8 A majority of this Court found the doctor’s 

testimony could not comprise substantial evidence to support the ALJ’s 

conclusion because the medical opinion was based on inaccurate and 

incomplete information during the plaintiff’s medical examination.9 This Court 

held when a medical assessment is based on inaccurate information, the entire 

testimony must be disregarded.

10 

In deciding factual issues, the ALJ may accept or reject any testimony, 

“regardless of whether it is from the same witness or same party’s total 

proof.”11 Here, we find the facts not to be analogous to Cepero. Packers 

Sanitation does not argue that Dr. Ruth had incomplete or inaccurate 

information when he first assessed Cabrera and gave him an 8% psychological 

impairment rating. Instead, Packers Sanitation argues because Dr. Ruth 

changed his diagnosis after seeing the video of Cabrera the original assessment 

was fatally flawed. Dr. Ruth’s opinion of Cabrera’s psychological impairment 

 

6 Id. at 841.

7 Id. 841–42.

8 Id.

9 Id. at 842.

10 Id. at 843.

11 Abel Verdon Const. v. Rivera, 348 S.W.3d 749, 753–54 (Ky. 2011).
7

changed because of a second evaluation and video evidence, not because

inaccurate information during the first assessment rendered his opinion 

unreliable. At the time Cabrera underwent his initial psychological 

assessment, Dr. Ruth gave his medical opinion based on objective findings.

The ALJ’s order states that he was relying on Dr. Ruth’s initial diagnosis 

because it was supported by the testimony of Dr. Butler who gave a similar 

assessment of Cabrera’s psychological impairment. Dr. Butler found Cabrera 

suffered from a 16% psychological impairment even after reviewing the video. 

The ALJ also explained that he found Cabrera to be a credible witness and that 

he was suffering from psychological issues. Overall, the ALJ explained why he 

was not persuaded by Dr. Ruth’s revised opinion and how the evidence 

presented related to the conclusion that Cabrera suffered an 8% psychological 

impairment because of the work-related injury. An ALJ may disregard or find 

persuasive any portion of the evidence; therefore, we find the ALJ did not err by 

relying upon Dr. Ruth’s initial assessment. 

III. CONCLUSION

For these reasons, we affirm the Court of Appeals’ holding.

All sitting. All concur. 
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COUNSEL FOR APPELLANT:

Timothy Joe Walker

Fogle Keller Walker, PLLC

COUNSEL FOR APPELLEE, JORGE MARTELL CABRERA:

Wayne Charles Daub

CHAIRMAN, WORKERS’ COMPENSATION BOARD:

Michael Wayne Alvey

ADMINISTRATIVE LAW JUDGE:

Honorable John Barry Coleman