RENDERED: JUNE 16, 2022

TO BE PUBLISHED

Supreme Court of Kentucky

2021-SC-0286-WC

TRACTOR SUPPLY APPELLANT

ON APPEAL FROM COURT OF APPEALS

No. 2021-CA-0296

WORKERS’ COMPENSATION BOARD

No. 2019-WC-88426

V.

PATRICIA WELLS;

HONORABLE STEPHANIE L. KINNEY, 

ADMINISTRATIVE LAW JUDGE; AND

WORKERS’ COMPENSATION BOARD

APPELLEES

OPINION OF THE COURT BY JUSTICE CONLEY

AFFIRMING 

This case is before the Court on appeal as a matter of right1 by Tractor 

Supply, the Appellant, from the Court of Appeals’ ruling declining to extend the 

holding in Livingood v. Transfreight, LLC, 467 S.W.3d 249 (Ky. 2015) to KRS 

342.730(1)(c)1, colloquially known as the three-multiplier. The only issue 

presented is whether this Court should now decide, as a matter of public 

policy, whether our holding “that the legislature did not intend to reward an 

employee's wrongdoing with a double benefit[,]” Livingood, 467 S.W.3d at 259,

should now be extended to preclude application of the three-multiplier when a 

1 Ky. Const. § 115.
2

claimant has been terminated for misconduct. Having reviewed the statute, the 

decision of the Court of Appeals, and the record, we decline to extend Livingood

to the three-multiplier.

I. Facts and Procedural Posture

Because this appeal presents a narrow legal question, we omit the 

superfluous facts as to the injury of Patricia Wells, the Appellee. It suffices to 

note the ALJ did make a finding of fact that Wells sustained a right shoulder 

and cervical spine work injury on August 16, 2018, and that she retains a 15% 

permanent impairment. This was primarily based on the medical opinion of Dr. 

Ballard, who was the most recent doctor to evaluate Wells prior to the closing 

of evidence and who evaluated Wells on behalf of Tractor Supply. The ALJ cited 

Dr. Farrage’s opinion in support as well. The ALJ made a finding of fact that 

Wells’ pre- and post-injury average weekly wage was not the same or greater 

precluding application of the two-multiplier. Although the ALJ commented that 

Tractor Supply had failed to submit a full 52 weeks of wage records prior to 

Wells’ injury, she calculated the pre- and post-injury wages according to the 

wage records that were submitted. Finally, the ALJ made a finding of fact that 

Wells did not have the physical capacity to perform her pre-injury work, based 

on Dr. Ballard’s opinion, justifying application of the three-multiplier. Wells 

continued to work until January 24, 2019, when, according to Tractor Supply, 

she was fired for allegedly filing false information on a company report.

The ALJ rendered her decision, and Tractor Supply requested additional 

findings of fact from the ALJ considering the holding in Livingood. The ALJ
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determined no additional findings were necessary because that case applies to 

the two-multiplier, KRS 342.730(1)(c)2. On appeal to the Workers’ 

Compensation Board, the Board similarly determined Livingood did not apply 

to the three-multiplier. Tractor Supply appealed to the Court of Appeals.

The Court of Appeals affirmed, holding the two- and three-multipliers 

had distinct purposes—"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.” Therefore, because 

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 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 preinjury. “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 threemultiplier. Her later termination is irrelevant. 

Tractor Supply now appeals to this Court.
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II. Standard of Review

This appeal presents a question of law and there is no appeal of any 

factual findings by the ALJ, therefore our review is de novo. Consol of Ky., Inc. 

v. Goodgame, 479 S.W.3d 78, 81 (Ky. 2015). Appellant asserts that this Court 

should, as a matter of public policy, extend Livingood to the three-multiplier.

But that argument fundamentally mistakes the nature of this Court’s 

authority, and the basis upon which Livingood was decided. We have 

previously explained, 

The Commonwealth's power to legislate public policy in the area of 

employer/employee relations derives from its police power as well as the 

community interest in regulating the safety of the workplace and in 

requiring employers to provide for injured workers and their dependents 

so that they do not become a burden on the community.

Johnson v. Gans Furniture Indus., Inc., 114 S.W.3d 850, 856 (Ky. 2003) (citing 

Workmen's Compensation Board of Kentucky v. Abbott, 278 S.W. 533 (1925)).

This Court is imbued neither with policymaking nor police powers. Instead, our 

function is to interpret what a statute says and apply it to a particular set of 

facts. 

When interpreting a statute, “[a] well-established rule of statutory 

construction is that the courts will consider the purpose which the statute is 

intended to accomplish—the reason and spirit of the statute—the mischief 

intended to be remedied.” City of Louisville v. Helman, 253 S.W.2d 598, 600 

(Ky. 1952) (citations omitted). On the other hand, “[i]t is neither the duty nor 

the prerogative of the judiciary to breathe into the statute that which the 

Legislature has not put there. The humane spirit of the statute does not 
5

warrant its extension beyond its legitimate scope.” Faust v. Commonwealth, 

142 S.W.3d 89, 94-95 (Ky. 2004) (quoting Gateway Constr. v. Wallbaum, 356 

S.W.2d 247, 248–49 (Ky. 1962)). As we recently stated, “Legislative intent is 

paramount when construing a statute.” Martin v. Warrior Coal, LLC, 617 

S.W.3d 391, 394 (Ky. 2021). 

III. Analysis

The pertinent statutory provisions of KRS 342.370(1) read

(c) 1. 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, but this 

provision shall not be construed so as to extend the duration of 

payments; or

2. 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 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.

In Livingood, we concluded 

that the legislature did not intend to reward an employee's 

wrongdoing with a double benefit. We hold that 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 [is] shown to have been an intentional, deliberate action 

with a reckless disregard of the consequences either to himself or 

to another.
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467 S.W.3d at 259. This ruling was based not on any specific language in KRS 

342.730(1)(c)2 but rather on the general thrust of the entire Workers’ 

Compensation statute. “KRS Chapter 342 evinces a legislative intent that an 

employee should not benefit from his own wrongdoing.” Id. at 258. We then 

cited several provisions2 of KRS Chapter 342 to demonstrate this general 

intent. Id. Thus, our holding in Livingood was not a usurping act of 

policymaking by this Court but was grounded in the text of KRS Chapter 342. 

It was necessary to declare this general rule since we determined we had 

erred in our prior interpretation of KRS 342.730(1)(c)2, in the now-overruled 

case of Chrysalis House, Inc. v. Tackett, 283 S.W.3d 671 (Ky. 2009), which held 

when applying the two-multiplier “the cessation of employment at the same or 

greater wage must relate to the disabling injury.” Livingood, 467 S.W.3d at 257. 

Livingood recognized the plain language of KRS 342.730(1)(c)2 did not include 

any “due to an injury” language like that found in KRS 342.730(1)(c)1. Instead, 

KRS 342.730(1)(c)2 declares “During any period of cessation of that 

employment, temporary or permanent, for any reason, with or without cause . . 

.” the two-multiplier shall be applied. In restoring the purpose of KRS 

2 Specifically, we cited to KRS 342.165(2) which “bars compensation where an 

employee knowingly and willfully makes a false representation regarding his or her 

physical condition or medical history in writing at the time of entering employment[,]” 

Livingood, 467 S.W.3d at 258; KRS 342.610(3) which bars compensation where the 

injury, occupational disease, or death was willfully intended by the claimant; KRS 

342.035(3) which bars compensation when a claimant’s injury is aggravated or 

continued by an unreasonable failure to follow surgical or medical advice; KRS 

342.205(3) which bars recovery if a claimant refuses to submit to an independent 

medical exam; and KRS 342.710(5) which reduces compensation by 50% for each 

week a claimant refuses to attend vocational rehabilitation ordered by an ALJ.
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342.730(1)(c)2, however, we also recognized “a literal construction of KRS 

342.730(1)(c)2 would lead to an unreasonable result if an employee like the one 

in Chrysalis House is allowed to benefit from his own wrongdoing.” Livingood, 

467 S.W.3d at 257.

KRS 342.730(1)(c)1 does not provide for consideration of continuing 

employment, or the reasons underlying a termination, when determining 

whether the three-multiplier should be applied. It is concerned with 

compensating a claimant for the injury suffered that has reduced their ability 

to do the same type of work as they did pre-injury. In contrast, 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.

Toy v. Coca Cola Enters., 274 S.W.3d 433, 435 (Ky. 2008). Thus, the twomultiplier only applies when there is a cessation of employment; justifying

Livingood’s holding that a claimant would profit by his or her misconduct if the 

two-multiplier were applied to a claimant whose employment was terminated 

as a result of misconduct. 

Such an unjust profit cannot occur with regard to KRS 342.730(1)(c)1 

because the three-multiplier only ever applies when “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[.]” There is not an incentive 

structure in the three-multiplier analogous to the two-multiplier; thus, the 
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Court of Appeals’ reasoning is sound. The three-multiplier benefit is concerned 

with a finding of disability, and not tied to any condition of employment.

Therefore, application of the general rule that no claimant should profit by his 

or her misconduct serves no substantive purpose regarding the threemultiplier. Wells was unable to return to her pre-injury work after August 16, 

2018, and her firing, even if for misconduct, did not increase or prolong the 

income benefits she would otherwise receive. In fact, applying the Livingood 

rule to the three-multiplier would create a mischievous incentive for employers 

to concoct reasons to fire those employees who are receiving three-multiplier 

benefits to reduce their payments.

Finally, one could argue that an employee might intentionally and 

deliberately, with reckless disregard for himself or others, injure himself; and 

because so, a three-multiplier would be unjust if his injury would otherwise 

call for it. We agree, but only because the General Assembly has already 

provided for that exact scenario in KRS 342.610(3), stating, “Liability for 

compensation shall not apply to injury, occupational disease, or death to the 

employee if the employee willfully intended to injure or kill himself, herself, or 

another.” Thus, we find no statutory basis to extend Livingood to application of 

the three-multiplier. 

IV. Conclusion

Wells suffered a permanent injury in 2018 that physically prevented her 

from performing the same work she performed prior to the injury. She was later 

terminated in 2019 due to an unrelated incident allegedly involving the 
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inclusion of false information on a work report. KRS 342.730(1)(c)1 does not 

provide for consideration of post-injury conduct at work when applying the 

three-multiplier. It calls only for a determination of whether the claimant could 

return to the type of work performed pre-injury. Since the treble increase in 

benefits is not tied to a claimant being employed, the statutory prohibition that 

a claimant should not profit by their misconduct is not applicable—the 

claimant has not gained anything as a proximate result of their misconduct 

that would trigger application of the rule. Thus, nothing in the statute or the 

facts below requires extension of Livingood to KRS 342.730(1)(c)1. The Court of 

Appeals is affirmed.

All sitting. All concur. 

COUNSEL FOR APPELLANT:

Walter E. Harding

Boehl Stopher & Graves, LLP

COUNSEL FOR APPELLEE:

Michael D. Lindsey

ADMINISTRATIVE LAW JUDGE:

Stephanie L. Kinney

WORKERS’ COMPENSATION BOARD:

Michael Wayne Alvey, 

Chairman