RENDERED: AUGUST 2, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2023-CA-0713-WC

RONALD LIVERS APPELLANT 

v. 

PETITION FOR REVIEW OF A DECISION

OF THE WORKERS’ COMPENSATION BOARD

ACTION NO. WC-19-74005

WESTROCK; HONORABLE 

AMANDA M. PERKINS,

ADMINISTRATIVE LAW JUDGE; 

AND WORKERS’ COMPENSATION 

BOARD APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND A. JONES, JUDGES.

ACREE, JUDGE: Appellant, Ronald Livers, appeals the Workers’ Compensation

Board’s (Board) May 18, 2023 Order vacating an Administrative Law Judge’s 

(ALJ) award of temporary total disability (TTD) benefits to Appellant. Finding no 

error, we affirm.
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Appellant worked for Appellee, Westrock, as a truck driver for twelve 

years until Appellant suffered a lower back injury. On June 26, 2019, Appellant 

drove an overloaded truck, which broke in two – jolting Appellant upward into the 

air and then slammed him back as the truck frame hit the ground. It is undisputed 

he sustained injuries to his back and buttocks because of this accident. For some 

time, Appellant was unable to perform any work, but once able to perform light 

duty work, he worked as a scale clerk. He worked this light duty job until 

Westrock terminated his employment on March 5, 2021. 

On June 28, 2021, Appellant had a dorsal column neurostimulator 

implanted in his back. He underwent this spinal surgery to improve the injury he 

suffered in the accident. Thereafter, Dr. Jonathan Hodes evaluated Appellant and 

determined he had reached maximum medical improvement (MMI) on November 

2, 2021. Appellant then brought a claim before an ALJ requesting TTD benefits 

from March 6, 2021 (when his employment was terminated) to November 2, 2021

(when he reached MMI). The ALJ awarded these benefits to Appellant, but 

Westrock appealed this award to the Board.

Before the Board, Westrock argued Appellant did not meet the 

requirements for TTD benefits until after his surgery on June 28, 2021. Westrock

asked the Board to vacate the TTD benefits award from March 6, 2021, until the 

day before his spinal surgery – June 27, 2021. Westrock did not challenge the 
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award of TTD benefits from June 28, 2021 to November 2, 2021, when Appellant 

reach MMI.

In its opinion, the Board agreed with Westrock and vacated the ALJ’s 

awarded TTD benefits from March 6, 2021 to June 27, 2021. The Board also 

remanded this case to the ALJ for additional fact finding concerning the type of 

employment Appellant was capable of performing on March 6, 2021. This appeal 

follows.

Pursuant to KRS1 342.0011, “‘Temporary total disability’ means the 

condition of an employee who has not reached maximum medical improvement 

from an injury and has not reached a level of improvement that would permit a 

return to employment[.]” KRS 342.0011(11)(a). “[T]o put it positively, an 

employee is entitled to receive TTD benefits until such time as she reaches 

maximum medical improvement (MMI) or has improved to the point that she can 

return to employment.” Trane Com. Sys. v. Tipton, 481 S.W.3d 800, 803 (Ky. 

2016). The Kentucky Supreme Court went on to explain in Trane:

Initially, we reiterate that “[t]he purpose for awarding 

income benefits such as TTD is to compensate workers for 

income that is lost due to an injury, thereby enabling them 

to provide the necessities of life for themselves and their 

dependents.” Double L Const., Inc. [v. Mitchell, 182 

S.W.3d 509, 514 (Ky. 2005)]. Next, we note that, once an 

injured employee reaches MMI that employee is no longer 

entitled to TTD benefits. Therefore, the following only 

1 Kentucky Revised Statutes.
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applies to those employees who have not reached MMI but 

who have reached a level of improvement sufficient to 

permit a return to employment.

As we have previously held, “[i]t would not be 

reasonable to terminate the benefits of an employee when 

he is released to perform minimal work but not the type 

[of work] that is customary or that he was performing at 

the time of his injury.” Central Kentucky Steel v. Wise, 19 

S.W.3d at 659. However, it is also not reasonable, and it 

does not further the purpose for paying income benefits, to 

pay TTD benefits to an injured employee who has returned 

to employment simply because the work differs from what 

she performed at the time of injury. Therefore, absent 

extraordinary circumstances, an award of TTD benefits is 

inappropriate if an injured employee has been released to 

return to customary employment, i.e. work within her 

physical restrictions and for which she has the experience, 

training, and education; and the employee has actually 

returned to employment. We do not attempt to foresee 

what extraordinary circumstances might justify an award 

of TTD benefits to an employee who has returned to 

employment under those circumstances; however, in 

making any such award, an ALJ must take into 

consideration the purpose for paying income benefits and 

set forth specific evidence-based reasons why an award of 

TTD benefits in addition to the employee’s wages would 

forward that purpose.

Trane Com. Sys., 481 S.W.3d at 807 (alterations in original). Thus, whether 

Appellant is entitled to TTD benefits from March 6, 2021 to June 27, 2021 hinges 

on whether Appellant could return to his customary work.

The Board notes in its opinion that the ALJ determined, in her original 

order, that Appellant had returned to “work for which he had the experience, 

training, and education to perform.” This mimics the above quoted language in 
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Trane. 481 S.W.3d at 807. However, the ALJ made this finding in relation to the 

period in which Appellant returned to work at Westrock as a scale clerk. The 

Board noted the ALJ failed to make this finding as to Appellant’s condition on 

March 6, 2021, and believed the ALJ did not do a complete analysis concerning 

Appellant’s rights to TTD benefits. The ALJ did not make an explicit finding that 

Appellant could return to his customary employment on March 6, 2021.

Despite this, the record does not reveal any changes in Appellant’s 

circumstances to rebut the ALJ’s finding that he could return to customary work 

when he began working as a scale clerk. Per the ALJ’s findings, and the Board’s 

interpretation of them, on March 5, 2021, Appellant worked in his customary 

employment and was not entitled to TTD benefits. On March 6, 2021, the only 

change in Appellant’s circumstances was his employment status; Westrock fired 

him. The record reveals no change in Appellant’s ability to perform his work as a 

scale clerk. 

Westrock claims it fired Appellant from his scale clerk position 

because he brought COVID-19 into the workplace. Appellant alleges this was a 

pretextual reason for firing him and the actual reason was that he was not a good 

scale clerk, a circumstance he attributed to dyslexia. Either reason, if taken as true, 

has no bearing on whether Appellant was capable of performing his customary 

work after being terminated because neither related to his work-related injury. 
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Because of this, it is unclear why the ALJ needs to reiterate her finding that 

Appellant was still capable of returning to his customary work after being fired for 

reasons unrelated to his injury. To the contrary, there is no reason to conclude 

Appellant was incapable of performing his customary work; that is, he could 

perform the work of a scale clerk on March 6, 2021.

Thus, on March 6, 2021, Appellant could return to his customary 

work, per the ALJ’s finding that he had already returned to “work for which he had 

the experience, training, and education to perform.” As such, TTD benefits would 

be inappropriate as “[t]he purpose for awarding income benefits such as TTD is to 

compensate workers for income that is lost due to an injury, thereby enabling them 

to provide the necessities of life for themselves and their dependents.” Trane Com. 

Sys., 481 S.W.3d at 807 (quoting Double L Const., Inc., 182 S.W.3d at 514). On 

March 6, 2021, Appellant was not unemployed due to his work-related injury. 

Instead, Appellant was unemployed because Westrock fired him for reasons 

unrelated to his work-related injury.

Of course, as the Board notes, this analysis completely changed once 

Appellant underwent spinal surgery on June 28, 2021. It is highly doubtful 

Appellant could have returned to any work after surgeons implanted the dorsal 

column neurostimulator in him and before again reaching MMI. Nevertheless, 
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Appellant cannot satisfy the requirements for obtaining TTD benefits prior to this 

surgery, from March 6, 2021 to June 27, 2021.

Accordingly, the Board did not err when it reversed the award of TTD 

benefits from this time period. Appellant is not entitled to TTD benefits from 

March 6, 2021 to June 27, 2021. 

We affirm.

ALL CONCUR. 

BRIEF FOR APPELLANT:

John Edward Ballerstedt, Jr.

Louisville, Kentucky

BRIEF FOR APPELLEE:

Jo Alice Van Nagell

C. Daniel Scott

Lexington, Kentucky