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 
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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 preinjury. 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:

Walter E. Harding

Louisville, Kentucky

BRIEF FOR APPELLEE PATRICIA 

WELLS:

Michael D. Lindsey

Bowling Green, Kentucky