IMPORTANT NOTICE 

NOT TO BE PUBLISHED OPINION 

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." 

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RENDERED: FEBRUARY 19, 2015 

NOT TO BE PUBLISHED 

„Suprtutt (Eourf of tnfurkg 

2014-SC-000103-WC 

NANCY MCDONALD APPELLANT 

ON APPEAL FROM COURT OF APPEALS 

V. CASE NO. 2012-CA-001555-WC 

WORKERS' COMPENSATION NO. 06-00568 

COMMONWEALTH OF KENTUCKY; 

HONORABLE CHRIS DAVIS, 

ADMINISTRATIVE LAW JUDGE; AND 

WORKERS' COMPENSATION BOARD APPELLEES 

MEMORANDUM OPINION OF THE COURT 

AFFIRMING 

Appellant, Nancy McDonald, appeals from a Court of Appeals decision 

which affirmed an Administrative Law Judge's ("AI,J") opinion that held she 

was entitled to permanent partial disability ("PPD") benefits for a twenty-three 

percent whole person impairment beginning on the date of her injury. 

McDonald argues that the ALJ erred by holding that the PPD award should 

begin on the date of her injury because she contends her disability began on a 

different date. For the below stated reasons, we affirm the Court of Appeals. 

McDonald suffered a work-related injury to her right hip and low back on 

July 18, 2004, while employed by Hazelwood Center, a mental health facility 

operated by the Commonwealth. She sought medical treatment and returned 
to work at Hazelwood in a position which required less physical activity. 

McDonald sought workers' compensation for her injury. 

Dr. Thomas Loeb treated McDonald, but found that she did not have any 

permanent disability. He assigned her a zero percent disability rating as of 

September 19, 2006. However, on January 23, 2007, Dr. Loeb reevaluated 

McDonald's condition and assigned her an eight percent disability rating. The 

parties entered into a settlement agreement in July 2007, and McDonald was 

awarded a lump-sum payment. 

Despite being given less strenuous work to perform, McDonald's medical 

condition worsened. She filed a motion to reopen her claim on September 30, 

2010. Following a hearing, the ALJ determined that McDonald was entitled to 

PPD benefits based on a twenty-three percent impairment rating. He awarded 

her PPD benefits to begin on the date of her injury, July 18, 2004. The 

Commonwealth would be credited for all previously paid compensation. 

McDonald filed a petition for reconsideration arguing that the ALJ 

ordered her PPD benefits to begin on the wrong date. She contended that the 

PPD benefits should have been paid from the date her disability began and not 

from the date of her injury. She argued that her disability began sometime 

between September 19, 2006 and January 23, 2007, based upon Dr. Loeb's 

opinion regarding her impairment rating. Her petition for reconsideration was 

denied by the ALJ based on Sweasy v. Wal-Mart Stores, Inc., 295 S.W.3d 835 

(Ky. 2009). Sweasy stated that KRS 342.7301(1), "entitle[s] a partially disabled 

worker to permanent income benefits from the date that the permanent 

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impairment or disability that they compensate arises." 295 S.W.3d at 836. 

Applying that language, the ALJ believed that starting McDonald's PPD benefits 

from the date of her injury was the "better and more uniform policy." The 

Workers' Compensation Board affirmed the MA's order except on one issue 

which is not relevant to this appeal.' The Court of Appeals also affirmed, and 

this appeal followed. 

McDonald argues that the ALJ erroneously found that her disability 

arose on the date of her injury and that he set the wrong date to begin her PPD 

benefits. We will review the ALJ's factual determination to see if it is supported 

by substantial evidence and that it was not unreasonable as a matter of law. 

Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000); Wolf 

Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). The ALJ's 

interpretation of Sweasy is a question of law and will be reviewed de novo. 

Hutchinson v. Kentucky Unemployment Ins. Com'n, 329 S.W.3d 353, 356 (Ky. 

App. 2010). 

"[T]he compensable period for partial disability begins on the date that 

the impairment and disability arise, without regard to the date of [maximum 

medical improvement], the worker's disability rating, or the compensable 

period's duration." Sweasy, 295 S.W.3d at 840. McDonald argues that the 

ALJ erred by holding that her PPD benefits should begin on the date of her 

1The Board reversed the ALJ's order and remanded the matter for him to include 

wording regarding McDonald's entitlement to enhancement of her benefits by the 

two multiplier if her employment were to cease due to the disabling effects of the 

work-related injury. KRS 342.730(1)(c)2. 

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injury because her disability began sometime between September 19, 2006 and 

January 23, 2007. McDonald contends that her permanent partial disability 

could have only arisen between those two dates, because Dr. Loeb found she 

had no impairment on September 19, 2006, but later found that impairment 

existed on January 23, 2007. We disagree. 

McDonald testified, as a part of her original workers' compensation 

claim, that as soon as her work-related injury happened, on July 18, 2004, she 

experienced pain and sought medical treatment the very next day. McDonald 

also has received on-going treatment with a variety of medical professionals 

from the date of her work-related accident. Thus, there is evidence to support 

the ALJ's conclusion that McDonald's disability arose on the date of her 

accident. 

We also note that Sweasy states that the date of the onset of a disability 

be determined "without regard to . . . the worker's disability rating." Sweasy, 

295 S.W.3d at 840. Accordingly, the date Dr. Loeb assigned McDonald a 

disability rating is irrelevant in deciding the time her PPD benefits are to begin. 

The ALJ did not misapply the holding in Sweasy and there is sufficient 

evidence to support his findings. 

Thus, for the above stated reasons, we affirm the Court of Appeals. 

Minton, C.J.; Abramson, Cunningham, Keller, Noble, and Venters, JJ., 

sitting. All concur. 

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COUNSEL FOR APPELLANT, 

NANCY MCDONALD: 

Wayne C. Daub 

COUNSEL FOR APPELLEE, 

COMMONWEALTH OF KENTUCKY: 

Timothy Joe Walker 

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