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NOT TO BE PUBLISHED OPINION 

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RENDERED: OCTOBER 29, 2015 

NOT TO BE PUBLISHED 

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2014-SC-000462-WC 

ZAPPO S. COM APPELLANT 

ON APPEAL FROM COURT OF APPEALS 

V. CASE NO. 2013-CA-001320-WC 

WORKERS' COMPENSATION NO. 11-93629 

SONIA S. MULL; 

HONORABLE JOHN COLEMAN, 

ADMINISTRATIVE LAW JUDGE; AND 

WORKERS' COMPENSATION BOARD APPELLEES 

MEMORANDUM OPINION OF THE COURT 

REVERSING 

Appellant, Zappos.com, appeals a Court of Appeals decision which 

reinstated an award of temporary total disability ("TTD") income benefits for 

Appellee, Sonia S. Mull. Zappos argues that the Court of Appeals, and 

previously the Administrative Law Judge ("AI.J"), misapplied KRS 

342.0011(11)(a) by holding that Mull was entitled to TTD benefits for a period 

after she voluntarily chose to quit while she was under light duty restrictions. 

For the below stated reasons, we reverse the Court of Appeals. 

Mull worked full time for a company called Travelex and part time for 

Zappos. She began her employment with Zappos in August 2010, working ten 

hour shifts on the weekend. Mull's job responsibilities required her to engage 
in prolonged standing while retrieving boxes from a conveyor, scanning the 

boxes, and putting them into shipping boxes. Mull was trained to perform all 

tasks. The job was fast paced and repetitive. Mull stated that she often 

handled up to 300 boxes per hour. 

At some time in January 2011, Mull began to notice numbness and 

stiffness in her hands. Specifically, on February 5, 2011, she recounted having 

difficulty lifting her-right middle finger when her hand was in a closed fist. 

Mull continued to work hoping that the problems with her hands would 

improve. 

Unfortunately, Mull did not improve and she sought treatment from her 

family physician, Dr. Dennis Allen Sparks, on March 4, 2011. Dr. Sparks 

believed the problem with Mull's hands was related to her work at Zappos. Mull 

reported the doctor's diagnosis to her manager, Sarah Bellah, the next day and 

requested a month off of work. Bellah declined the request and instead 

assigned Mull light duty work. The light duty work involved scanning 

packages. 

Mull continued to work at Zappos performing the light duty work until 

May 15, 2011, when she quit. Mull testified that she quit, not because she 

could no longer perform the light duty tasks, but that she wanted to spend 

more time with her family. 

Mull filed for workers' compensation on August 17, 2011, alleging she 

sustained a repetitive motion injury to her right middle finger during the scope 

of her employment with Zappos. The parties stipulated that Mull suffered a 
work-related injury, but the appropriateness of TTD benefits for the period after 

she quit was contested. After a review of the evidence, the ALJ found that: 

[Mull] requests [TTD] benefits beginning on the date she left her 

employment with the defendant on May 15, 2011, but she 

continued in her concurrent employment as a currency exchange 

clerk. [Mull] agrees that she continued working for the employer at 

light duty through that date. [Mull] was evaluated by Dr. DuBou 

on November 22, 2011, at which time he noted her to not be at 

maximum medical improvement. Dr. McEldowney placed [Mull] at 

maximum medical improvement and placed her under restrictions 

on December 29, 2011. Temporary total disability is defined in 

KRS 342.0011(11)(a) as the condition of an employee who has not 

reached maximum medical improvement from an injury and has 

not reached a level of improvement which would permit a return to 

employment. Temporary total disability is a two pronged test and 

temporary total disability benefits are payable so long as: (1) 

maximum medical improvement has not been reached, and (2) the 

injury has not reached a level of improvement that would permit a 

return to employment. Magellan Health v. Helms, 140 S.W.3d 579 

(Ky. App. 2004). Further, it would not be reasonable to terminate 

temporary total disability benefits for a claimant when he is 

released to perform minimal work, but not the type of work that 

was customary or that he was performing at the time of his injury. 

Central Kentucky Steel v. Wise, 19 S.W.3d 657 (Ky. 2000). A 

worker is entitled to temporary total disability during the 

performance of minimal work as long as the worker is unable to 

return to the employment performed at the time of injury. See 

Double L Construction, Inc. v. Mitchell, 182 S.W.3d 509 (Ky. 2006), 

wherein the Court noted that a worker is entitled to temporary 

total disability benefits if a work related injury results in a 

temporary inability to perform the job in which it occurred. If the 

injury also causes an inability to perform a concurrent job of which 

the employer has knowledge, income benefits are based on the 

wages of both employments by operation of KRS 342.140(5). If the 

injury does not cause an inability to perform a concurrent job, KRS 

342.140(5) is inapplicable and income benefits are based solely on 

the wages from the job in which the injury occurred. Therefore, 

[Mull] is entitled to temporary total disability benefits from May 15, 

2011 [,] through December 29, 2011. 

Zappos filed a petition for reconsideration. In denying the petition, the ALJ 

stated: 

3 
The ALJ sympathizes with [Zappos's] arguments on temporary total 

disability. However, the ALJ believes the law provides that 

temporary total disability benefits are payable so long as maximum 

medical improvement has not been reached and the injury has not 

reached a level of improvement that would permit a return to 

regular and customary employment. In this instance, [Mull] was 

not placed at maximum medical improvement until December 29, 

2011, and was on light duty work restrictions. Therefore, she met 

the two-prong test and her ability to do light duty work is 

irrelevant. 

Zappos appealed to the Board which reversed the ALJ on the granting of 

TTD benefits. The Board held: 

Here, Zappos accommodated Mull's restrictions with a scanning 

position, which she testified was a normal part of her employment 

prior to the injury. Zappos correctly notes Mull acknowledges she 

was capable of continuing to perform the light duty work but 

ceased her employment with Zappos for personal reasons 

completely unrelated to the work injury. Nothing in the record 

establishes the light duty work constituted 'minimal' work and she 

worked regular shifts while under restrictions. She was also '- 

capable of performing, and continued to perform for more than one 

year post-injury, her primary fulltime employment with Travelex. 

Given Mull was capable of performing work for which she had 

training and experience, and voluntarily ceased her employment 

for reasons unrelated to her injury or the job duties, substantial 

evidence does not support the award of TTD benefits and we 

therefore reverse. 

Mull subsequently appealed to the Court of Appeals, which reversed the 

Board and reinstated the award of TTD benefits. The Court of Appeals held 

that the phrase "return to employment," as found in KRS 342.0011(11)(a), "was 

only achieved if the employee can perform the entirety of her pre-injury 

employment duties within the confines of the post-injury medical restrictions." 

Thus, since Mull no longer retained the physical ability to perform any 

activities requiring gripping and grabbing with her right hand, and her pre4 
injury employment required such tasks, the Court of Appeals held she was 

entitled to TTD benefits. We disagree, and reverse the Court of Appeals. 

The Board's review in this matter was limited to determining whether 

the evidence is sufficient to support the ALJ's findings, or if the evidence 

compels a different result. W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687 (Ky. 

1992). Further, the function of 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 to cause gross injustice." Id. at 687-88. Finally, review 

by this Court "is to address new or novel questions of statutory construction, 

or to reconsider precedent when such appears necessary, or to review a 

question of constitutional magnitude." Id. The ALJ, as fact-finder, has the sole 

discretion to judge the credibility of testimony and weight of evidence. 

Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). 

As stated above, pursuant to KRS 342.0011(11)(a), in order for a 

claimant to be entitled to TTD benefits, she must satisfy a two-prong test: (1) 

she must not have reached MMI; and (2) she must not have reached a level of 

improvement that would permit her return to employment. Double L Constr., 

Inc. v. Mitchell, 182 S.W.3d 509, 513 (Ky. 2005). Wise stands for the 

proposition that TTD benefits for a claimant should not be terminated just 

because she is released to perform minimal work if it is not the type of work 

that was customary or that she was performing at the time of his injury. 19 

S.W.3d at 657. However, "Wise does not 'stand for the principle that workers 

5 
who are unable to perform their customary work after an injury are always 

entitled to TTD."' Livingood v. Transfreight, LLC, S.W.3d (Ky. 2015). 

Accordingly, the ALJ must analyze the evidence in the record and determine 

whether the light duty work assigned to the claimant is not minimal and is 

work that she would have performed before the work-related injury. 

In Livingood, the claimant, a forklift driver, could not drive a forklift due 

to his light duty work restrictions. Instead, while on light duty restrictions he 

changed forklift batteries, monitored bathrooms for vandalism, and checked to 

make sure freight was correctly placed around the facility. The ALJ determined 

that since Livingood had performed those tasks before, and the work was not a 

make-work project, he had returned to employment and was not entitled to 

TTD benefits. Id. at . The ALJ's findings were affirmed by this Court. 

In this matter, Mull satisfied the first prong of the TTD benefit test 

because she had not reached MMI. But, the ALJ did not perform an in depth 

analysis of the second requirement, whether the light duty work Mull 

performed was a return to her regular and customary employment. However, 

despite the lack of an in depth analysis the facts of this matter are relatively 

clear, and we must agree with the Board that substantial evidence does not 

support the ALJ's award of TTD. 

Prior to her injury, Mull's job tasks included retrieving a product, 

scanning it, and placing it in a shipping box. Mull was trained in all of these 

tasks. After the injury, Mull was restricted to scanning items. Mull testified 

that scanning was a normal part of her pre-injury employment. The light duty 

6 
work is not a significant diversion from her original employment and there is 

no indication the work was minimal. Mull also received the same hourly wage. 

Mull returned to her regular and customary employment at Zappos and she 

does not satisfy the second requirement to receive TTD benefits. 

Additionally, we note that Mull admitted she voluntarily quit working for 

Zappos because she wanted to spend more time with her family and not 

because she was unable to continue performing light duty work. The purpose 

of TTD benefits is to cover a period of time in which an employee cannot work 

or can only perform minimal work. We acknowledge that a claimant can 

receive TTD for an injury sustained at one job while able to continue working a 

second job. Double L Construction, 182 S.W.3d at 514. But, TTD benefits 

should not be awarded to a claimant who chooses not to work for reasons 

unrelated to her work-related disability. Accordingly, the record does not 

support the ALJ's grant of TTD benefits to Mull. 

Thus, for the above stated reasons, we reverse the decision of the Court 

of Appeals. 

All sitting. Minton, C.J.; Abramson, Barber, Cunningham, Keller, and 

Noble, JJ., concur. Venters, J., dissents.' 

7 
COUNSEL FOR APPELLANT, 

ZAPPOS.COM: 

Donald Cameron Walton, III 

Scott Ellis Burroughs 

COUNSEL FOR APPELLEE, 

SONIA S. MULL: 

James Delano Howes 

8