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RENDERED: JUNE 17, 2021

NOT TO BE PUBLISHED

Supreme Court of Kentucky

2020-SC-0498-WC

PC METRO BOTTLING (PEPSICO) APPELLANT

ON APPEAL FROM COURT OF APPEALS

NO. 2019-CA-1768

V. WORKERS’ COMPENSATION BOARD

NO. 2016-WC-77912

LONNIE FELTNER;

HONORABLE ROLAND CASE, 

ADMINISTRATIVE LAW JUDGE 

AND WORKERS’ COMPENSATION BOARD

APPELLEES

MEMORANDUM OPINION OF THE COURT

AFFIRMING

PepsiCo appeals from the Court of Appeals’ decision affirming the 

Workers’ Compensation Board (the “Board”) determination upholding Lonnie 

Feltner’s award for double benefits pursuant to KRS1 342.730(1)(c)2 resulting 

from a negative change in his average weekly wages (AWW) following his injury. 

For the following reasons, we affirm.

I. Factual and Procedural Background

While working as a bay driver for Appellant PepsiCo in June 2016, 

Feltner injured his left shoulder. Because of his injury, Feltner underwent 

 

1 Kentucky Revised Statutes.
2

surgery for a torn labrum in his left shoulder. Feltner did not return to work 

until April 2017. Upon his return, Feltner resumed his duties as a bay driver, 

which included strenuous physical activities such as unloading the truck and 

stacking PepsiCo products. 

In December 2017, Feltner bid on, and was awarded, a new position as 

an account manager. Feltner testified that he took the new position, in part, 

because the job required far less from him physically. However, following the 

shift in job description, Feltner’s average wages decreased to below his preinjury income. A year later, Feltner sought a resolution to his workers’ 

compensation claim. After conducting a hearing, the ALJ2 concluded that 

Feltner suffered a 6.8% permanent partial disability rating, and that the 

reduction in his AWW triggered KRS 342.730(1)(c)2’s double benefit provision 

for as long his income remained less than his pre-injury average. 

PepsiCo filed a petition for reconsideration and appealed the ALJ award 

when its petition was denied. The Board affirmed, and in turn, so did the 

Court of Appeals. 

II. Standard of Review

Our standard of review in workers’ compensation cases is well settled. 

Appellate courts review the Board’s decision only to correct instances in which 

“[t]he [B]oard has overlooked or misconstrued controlling statutes or precedent 

or committed an error in assessing the evidence so flagrant as to cause gross 

 

2 Administrative Law Judge. The administrative law judge in this case was 

Roland Case.
3

injustice.” Tryon Trucking, Inc. v. Medlin, 586 S.W.3d 233, 237-38 (Ky. 2019) 

(citing W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992)). However, 

because Feltner’s claim is before this Court purely on questions of statutory 

interpretation, we are not bound by either the decision of the Court of Appeals 

or the Board, and our review is de novo. Ford Motor Co. v. Jobe, 544 S.W.3d 

628, 631 (Ky. 2018). 

III. Analysis

At the core of PepsiCo’s appeal is whether KRS 342.730(1)(c)2 requires 

actual termination, or instead whether a downward shift in wages is sufficient 

to trigger the statute’s double benefits provision. The relevant statutory 

language is: 

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. 

KRS 342.730(1)(c)2. PepsiCo argues that the plain meaning of “cessation” 

predicates the relationship between the company and Feltner had to cease 

completely, if only temporarily, for the provision to apply. We disagree. 

In Toy v. Coca Cola Enterprises, we discussed the legislative intent in 

passing KRS 342.730 as having twin goals. The first, being to encourage a 

partially disabled worker to remain “in the habit of working and earning as 

much as they are able[,]” while simultaneously incentivizing employers not to 
4

relegate injured employees to lesser paying positions. 274 S.W.3d 433, 435 

(Ky. 2008); see also AK Steel Corp. v. Childers, 167 S.W.3d 672, 676 (Ky. 2005) 

(stating “one of the primary purposes of Chapter 342 is to encourage an injured 

employee to return to work”). As we discussed in Toy, the obvious legislative 

preference is for workers to return to the same job and wages as they held prior 

to their injury. 274 S.W.3d at 676. However, because partially disabled 

workers will not always be capable of fulfilling the same duties, the legislature 

crafted a scheme in which the trigger for enhanced benefits was wages. Id. 

The result of the legislature’s definitional decision is that employment, as the 

Toy court notes, is not simply decided by asking who signs the injured worker’s 

check. Id. Instead, the appropriate inquiry involves asking whether the 

employee is earning the same or more, on average, as they did prior to being 

injured. Id. 

Our analysis of KRS 342.730 requires us to reject PepsiCo’s proffered 

definition of “cessation,” requiring a severing of the employee/employer 

relationship to trigger double benefits. Our conclusion is driven by our 

understanding of the purpose of KRS 342.730 to encourage the reentry of 

injured workers to the workforce, and the concomitant duty of employers not to 

penalize employees for injuries sustained while on the clock. If we adopted 

PepsiCo’s definition the statute would become largely ineffectual because all 

companies would have to prove to avoid paying out is that the claimant 

remained, in some capacity, on their payroll. We decline to do so. Instead, we 

recognize, as we did in Toy and Childers, that by crafting a rule predicated on 
5

wage comparison, the statute necessarily cannot require completely severing 

the employment relationship. 

Having resolved the definitional question posed by PepsiCo, we must now 

determine whether Feltner was entitled to a double benefit. The relevant facts 

have been stipulated. Prior to being injured, Feltner’s AWW was $1,194.61. 

When Feltner initially returned to work his AWW was $1,237.69; well above his 

pre-injury income. However, Feltner’s wage decreased in December 2017, 

when his job duties shifted, to below his pre-injury AWW and never matched or 

exceeded his pre-injury wages. PepsiCo argues that because Feltner originally 

enjoyed higher post-injury wages, we should turn a blind eye to the downward 

shift in his income after December 2017. Its position is belied by the plain 

language of the statute.

In Ball v. Big Elk Creek Coal Co., we laid out the applicable procedure for 

determining how KRS 342.730(1)(c)2 should be applied. 25 S.W.3d 115 (Ky. 

2000). We reasoned that “pre-and post-injury average weekly wages should be 

compared[.]” Id. at 118. While the statute does not explicitly require weekly 

reviews of a worker’s income, the process must still be responsive to the 

injured employees working conditions. See id. at 117. This position is 

consistent with the plain language and purpose of the statute. As we explained 

in Ball, the award of “income benefits to injured workers is to provide an 

ongoing stream of income to enable them to meet their essential needs and 

those of their dependents.” Id. If employers could sidestep their statutory 

responsibilities by simply taking a “snapshot” of an injured employee’s wages, 
6

KRS 342.730(1)(c)2 would be entirely ineffectual. Consequently, the ALJ in 

Feltner’s case appropriately concluded that Feltner’s wages had decreased after 

December 2017 and awarded him double benefits pursuant to KRS 

342.730(1)(c)2. 

Finally, PepsiCo makes an ancillary argument that our decision here will 

have a chilling effect on employers’ willingness to bring back injured 

employees. We reject that argument. Nothing is inherently “unfair[,]” to 

borrow PepsiCo’s term, about requiring an employer to maintain an employee’s 

pre-injury wages if it wants to avoid the double benefit in KRS 342.730(1)(c)2. 

The employer retains full autonomy over its business decisions, the only issue

being the costs associated with those choices. Regardless, the legislature has 

spoken clearly on the matter, and our role is not to ignore its explicit policy 

preferences. See Toy, 274 S.W.3d at 434 (“[t]he essence of statutory 

construction is to determine and effectuate the legislative intent[]”). 

IV. Conclusion

For the reasons stated above, we affirm the Court of Appeals’ decision.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Catherine Ann Poole

Goodrum & Downs, PLLC

COUNSEL FOR APPELLEE

LONNIE FELTNER:

Ronnie Merel Slone
7

COUNSEL FOR APPELEE,

HON. ROLAND CASE, ADMINISTRATIVE 

LAW JUDGE:

Not represented by counsel

COUNSEL FOR APPELLEE,

WORKERS’ COMPENSATION BOARD:

Michael Alvey