RENDERED: JUNE 25, 2021; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0296-WC
TRACTOR SUPPLY COMPANY APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-19-88426
PATRICIA WELLS; HONORABLE STEPHANIE
L. KINNEY, ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, DIXON, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Tractor Supply Company (Tractor Supply) appeals
from an opinion of the Workers’ Compensation Board which affirmed an award
and order of the administrative law judge (ALJ) granting Patricia Wells, among
other things, permanent partial disability benefits. Tractor Supply argues that
Wells was not entitled to a three-multiplier found in Kentucky Revised Statutes
(KRS) 342.730(1)(c)1. We find no error and affirm.
FACTS AND PROCEDURAL HISTORY
Wells began working for Tractor Supply on October 25, 2017, where
she worked in the receiving and sorting department. Her job duties required her to
lift up to 75 to 100 pounds in order to unload trucks and sort pallets of
merchandise. On August 16, 2018, Wells injured her right arm, right shoulder, and
neck while unloading boxes from a truck at Tractor Supply. She reported her
injury the following day and sought treatment. Wells began light-duty work and
received the same hourly rate in pay, but received less total earnings because she
was unable to work overtime while on light duty.1 Wells continued working in a
light-duty capacity until January 28, 2019, when she was fired for allegedly giving
false information during a company investigation.2
Wells saw multiple doctors as part of this workers’ compensation
claim. All of the doctors gave Wells work restrictions. They advised that she not
do any overhead lifting and refrain from lifting items over 10 pounds.3 The ALJ in
this case found that Wells sustained a work-related right shoulder and cervical
1
The ALJ in this case found that Wells did not earn the same or greater wage when she began
her light-duty work. That finding was not appealed to this Court.
2
The investigation was unrelated to Wells’ current injury and workers’ compensation claim.
3
One doctor believed she could lift items of at least 20 pounds, but only occasionally.
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injury. This finding has not been appealed by Tractor Supply. As part of the
ALJ’s award, the ALJ believed Wells could not return to the same type of work
she performed before her injury due to the lifting restrictions. The ALJ then
multiplied her award by three pursuant to KRS 342.730(1)(c)1., which states in
pertinent part:
If, due to an injury, an employee does not retain the
physical capacity to return to the type of work that the
employee performed at the time of injury, the benefit for
permanent partial disability shall be multiplied by three
(3) times the amount otherwise determined under
paragraph (b) of this subsection[.]
Tractor Supply then filed a petition for reconsideration. It alleged that
the three-multiplier was unavailable because of the holding in Livingood v.
Transfreight, LLC, 467 S.W.3d 249 (Ky. 2015). The ALJ denied the petition and
held that Livingood did not apply. Tractor Supply then appealed to the Board, but
the Board affirmed the ALJ’s award and also held that Livingood did not apply.
This appeal followed.
ANALYSIS
The only issues on appeal are whether Wells was properly awarded
the three-multiplier and if Livingood applies to this case. “The function of further
review of the [Board] in the Court of Appeals is to correct the Board only where
[the] Court perceives the Board has overlooked or misconstrued controlling
statutes or precedent, or committed an error in assessing the evidence so flagrant as
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to cause gross injustice.” Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-
88 (Ky. 1992).
KRS 342.285 designates the ALJ as the finder of
fact. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d
418 (Ky. 1985), explains that the fact-finder has the sole
authority to judge the weight, credibility, substance, and
inferences to be drawn from the evidence. Special Fund
v. Francis, 708 S.W.2d 641, 643 (Ky. 1986), explains
that a finding that favors the party with the burden of
proof may not be disturbed if it is supported by
substantial evidence and, therefore, is reasonable.
AK Steel Corp. v. Adkins, 253 S.W.3d 59, 64 (Ky. 2008).
In addition, statutory interpretation is a legal issue which is reviewed
de novo. Commonwealth v. Long, 118 S.W.3d 178, 181 (Ky. App. 2003). When
engaging in statutory interpretation,
our main goal is “to give effect to the intent of the
General Assembly.” The clearest indicator of that intent
is the “language the General Assembly chose, either as
defined by the General Assembly or as generally
understood in the context of the matter under
consideration.” And “[w]here the words used in a statute
are clear and unambiguous and express the legislative
intent, there is no room for construction and the statute
must be accepted as written.”
Bell v. Bell, 423 S.W.3d 219, 223 (Ky. 2014) (footnotes and citations omitted).
In the case at hand, we must interpret KRS 342.730(1)(c)1 and how it
relates to Livingood. In Livingood, Alton Livingood injured his left shoulder while
working for Transfreight, LLC. Livingood underwent two surgeries and returned
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to work on light duty after about six months. Livingood’s salary did not change
while he was on light duty. After a third surgery and two more months off from
work, Livingood returned to work without restrictions. During his first shift after
returning to work without restrictions, Livingood accidentally bumped a pole while
operating a forklift. There was no damage. Ten days later, Livingood’s
employment was terminated.
During the workers’ compensation case, a human resources officer
from Transfreight testified that Transfreight had a progressive discipline policy
where each infraction moved an employee up to a new level of discipline. At the
time of the forklift accident, Livingood had already had two other infractions and
was on a “full and final warning” status. The forklift accident was deemed to have
been preventable and that is why he was terminated.
Livingood was awarded permanent partial disability benefits by the
ALJ, but the ALJ did not award any multipliers. Livingood petitioned for
reconsideration and argued that he was entitled to the two-multiplier described in
KRS 342.730(1)(c)2. KRS 342.730(1)(c)2. states:
If an employee returns to work at a weekly wage equal to
or greater than the average weekly wage at the time of
injury, the weekly benefit for permanent partial disability
shall be determined under paragraph (b) of this
subsection for each week during which that employment
is sustained. During any period of cessation of that
employment, temporary or permanent, for any reason,
with or without cause, payment of weekly benefits for
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permanent partial disability during the period of cessation
shall be two (2) times the amount otherwise payable
under paragraph (b) of this subsection. This provision
shall not be construed so as to extend the duration of
payments.
Livingood argued he was entitled to the two-multiplier because he was no longer
working for Transfreight. The ALJ denied the petition for reconsideration.
Livingood then appealed to the Board. The Board held that because
Livingood’s termination was not due to his injury, then the ALJ was correct in not
awarding him the two-multiplier. Livingood then appealed to this Court, which
affirmed. Livingood then appealed to the Kentucky Supreme Court.
The Kentucky Supreme Court held that the cessation of employment
did not have to be due to injury for the two-multiplier to apply. The Court also
held as follows:
KRS 342.730(1)(c)2 permits a double income benefit
during any period that employment at the same or a
greater wage ceases “for any reason, with or without
cause,” except where the reason is the employee’s
conduct shown to have been an intentional, deliberate
action with a reckless disregard of the consequences
either to himself or to another.
Livingood, 467 S.W.3d at 259. The Court believed it would be unreasonable for an
employee who was fired for intentional misconduct to be allowed to receive the
two-multiplier because KRS Chapter 342 “evinces a legislative intent that an
employee should not benefit from his own wrongdoing.” Id. at 258. The Court
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held that Livingood’s termination was not due to a reckless disregard of the
consequences, but because of the progressive discipline policy. The human
resources officer testified that had Livingood not already had prior infractions, the
accident with the forklift would not have resulted in his termination. The Court
held that Livingood would be entitled to the two-multiplier if his return to
employment was at the same or greater wage. The Court ultimately remanded the
case because the ALJ did not make a specific finding as to whether Livingood
returned to work at the same or greater wage.
As to the case at hand, Tractor Supply claims that Wells was
terminated for misconduct and that the holding of Livingood regarding “an
intentional, deliberate action with a reckless disregard of the consequences either
to himself or to another” should also apply to KRS 342.730(1)(c)1. We disagree
with Tractor Supply’s argument.
KRS 342.730(1)(c)1. and KRS 342.730(1)(c)2. are concerned with
different issues.
Consistent with the purpose of the benefit and with
KRS 342.710(1)’s goal of encouraging a return to
work, KRS 342.730(1)(c)2 focuses on post-injury wages.
Although KRS 342.710(1) expresses a preference for a
return to the same employment, KRS 342.730(1)(c)2
requires only that the injured worker “returns to work at a
weekly wage equal to or greater than the average weekly
wage at the time of injury.” Thus, it applies without
regard to whether the worker returns to the employment
in which the injury occurred or to other employment.
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Workers who retain the physical capacity to return
to the type of work performed at the time of injury
receive a basic income benefit under KRS 342.730(1)(b),
regardless of their post-injury earnings. The purpose of
KRS 342.730(1)(c) 2 is to keep partially disabled
workers in the habit of working and earning as much as
they are able. It creates an incentive for them to return to
work at which they will earn the same or a greater
average weekly wage by permitting them to receive a
basic benefit in addition to their wage but assuring them
of a double benefit if the attempt proves to be
unsuccessful. Although the statute also creates an
incentive for employers to continue to employ injured
workers in order to avoid paying double benefits, its
focus is on encouraging a return to work at the same or a
greater wage rather than to a particular employment.
Toy v. Coca Cola Enterprises, 274 S.W.3d 433, 435 (Ky. 2008) (footnote and
citation omitted). In essence, the two-multiplier is concerned with an employee
leaving his or her employment after an unsuccessful attempt at returning.
KRS 342.730(1)(c)1., on the other hand, concerns whether or not an
employee has the physical capacity to perform the type of work performed pre-
injury. In other words, this statute is more concerned with physical ability. When
examining the two statutes together, KRS 342.730(1)(c)1. is focused on an
employee’s physical abilities in determining whether a multiplier is appropriate
and KRS 342.730(1)(c)2. is concerned with whether an employee leaves his
employment.
As KRS 342.730(1)(c)2. is related to leaving employment, it is
entirely reasonable for the Kentucky Supreme Court to determine that when an
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employee loses his job due to reckless misconduct, awarding him or her a double
benefit would be unreasonable and against public policy. We decline to extend the
Livingood reasoning to KRS 342.730(1)(c)1. Whether Wells continued in her
employment with Tractor Supply is irrelevant when it comes to the three-multiplier
because the increase in benefits is not tied to continued employment. Due to
Wells’ injury and work restrictions, she was unable to return to the type of work
she performed pre-injury. “To determine if an injured employee is capable of
returning to the type of work performed at the time of injury, an ALJ must consider
whether the employee is capable of performing ‘the actual jobs that the individual
performed.’” Trane Commercial Systems v. Tipton, 481 S.W.3d 800, 804 (Ky.
2016) (citing Ford Motor Co. v. Forman, 142 S.W.3d 141, 145 (Ky. 2004)). Once
Wells was injured and her doctors put her on work restrictions, she was unable to
perform the job she had pre-injury, namely unloading trucks and lifting heavy
boxes. At this point she was entitled to the three-multiplier. Her later termination
is irrelevant.
CONCLUSION
Based on the foregoing, we affirm Wells’ workers’ compensation
award. We decline to extend the holding of Livingood for the purposes of
examining the three-multiplier found in KRS 342.730(1)(c)1.
ALL CONCUR.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE PATRICIA
WELLS:
Walter E. Harding
Louisville, Kentucky Michael D. Lindsey
Bowling Green, Kentucky
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