RENDERED: FEBRUARY 11, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-1164-WC

TYSON FOODS, INC. D/B/A EQUITY 

GROUP – KENTUCKY DIVISION, 

LLC APPELLANT 

v. 

PETITION FOR REVIEW OF A DECISION

OF THE WORKERS’ COMPENSATION BOARD

ACTION NO. WC-20-96835

PAUL CHAPLIN; HONORABLE 

THOMAS GEORGE POLITES, 

ADMINISTRATIVE LAW JUDGE; 

AND WORKERS’ COMPENSATION 

BOARD APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: ACREE, GOODWINE, AND L. THOMPSON, JUDGES.

GOODWINE, JUDGE: Tyson Foods, Inc. d/b/a Equity Group – Kentucky 

Division, LLC (“Tyson”) appeals a decision of the Workers’ Compensation Board 

(“the Board”) holding the Administrative Law Judge (“ALJ”) properly awarded 
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Paul Chaplin (“Chaplin”) temporary total disability (“TTD”) benefits from March 

9, 2020 to April 6, 2020. Finding no error, we affirm.

The Board summarized the pertinent facts as follows:

[Chaplin] was injured in a MVA [motor vehicle accident]

on January 21, 2020 while driving his truck hauling 

chicken feed for Tyson. He suffered injuries to multiple 

body parts including his back, face, head, and teeth. He 

received medical treatment at Vanderbilt University, 

where he was hospitalized for four days. Before he could 

return to work, he was required to pass a CDL 

[commercial drivers’ license] physical examination. 

Chaplin stated he failed the first examination because his 

blood pressure was evaluated. He stated, ‘My back was 

hurting so bad that it had my blood pressure up, so she 

failed me for four weeks, but April the 6th I went back to 

–back to see her and she passed me.’ He then returned to 

driving a truck for Tyson on April 6, 2020, but he 

continued to experience a lot of pain. . . .

Chaplin treated at Vanderbilt University Hospital 

on January 21, 2020. Chaplin was diagnosed with 

multiple rib fractures, a T12 compression fracture, L1 

compression fracture, L1 and L2 transverse process 

fractures, and broken teeth. Chaplin was discharged on 

January 25, 2020[.]

Dr. Frank Burke performed an independent 

medical evaluation (“IME”) on May 18, 2020. Dr. Burke 

diagnosed a complex back injury with additional injuries 

at the sacrum/sacrococcygeal area, and facial injuries 

with mastication issues. Dr. Burke stated Chaplin had 

reached maximum medical improvement (“MMI”) and 

assigned a 40% impairment rating consisting of 6% for 

the compression fracture at T12, 37% for the lumbar 

spine, and 5% for impaired mastication, pursuant to the 

5th Edition of the American Medical Association, Guides 

to the Evaluation of Permanent Impairment, (“AMA 
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Guides”). Dr. Burke noted Chaplin had returned to work 

with reported pain. Dr. Burke recommended Chaplin 

follow up with his treating physician to determine future 

treatment options. Dr. Burke felt Chaplin should not lift, 

push, or pull any significant amount of weight on a 

repetitive basis.

Dr. J. Rick Lyon performed an IME on October 8, 

2020 and prepared a report dated November 5, 2020. Dr. 

Lyon noted Chaplin had returned to working full duty. 

Dr. Lyon expected Chaplin would experience difficulty 

performing more than a light duty job. Dr. Lyon 

expected Chaplin would not reach MMI until 12 to 18 

months post injury.

Dr. Lyon testified by deposition on November 17, 

2020. He again stated Chaplin was not at MMI. Dr. 

Lyon noted that the range of motion model would be 

used to rate Chaplin’s spinal injury because of the multilevel fractures. He indicated it takes 12 to 18 months 

following the injury to reach a baseline for pain and 

range of motion. He noted there had been some 

improvement in range of motion from the time of Dr. 

Burke’s evaluation.

In a supplemental report dated March 16, 2021, 

Dr. Lyon indicated he had re-evaluated Chaplin to 

determine an impairment rating on February 15, 2021. 

He assigned a 37% whole person impairment rating 

pursuant to the AMA Guides, with 5% attributable to the 

thoracic spine and 34% attributable to the lumbar spine. 

He opined Chaplin is permanently restricted to a 

sedentary to light-duty job.

. . .

In regard to MMI, [Chaplin] argues

that he did not reach MMI until April 6, 

2020 at which time he returned to work. 

[Tyson] paid TTD from January 21, 2020 to 
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March 9, 2020 in the form of a check issued 

on April 9, 2021 which was received by 

[Chaplin] on April 15, 2021. The most 

credible testimony regarding MMI comes 

from Dr. Burke who placed [Chaplin] at 

MMI on May 18, 2020. However [Tyson] 

returned to work on April 6, 2020. Given 

these facts, it is determined that [Chaplin] 

reached MMI on May 18, 2020 but is 

entitled to payment of TTD benefits to April 

6, 2020, the date he returned to work. 

Record (“R.”) at 571-73. Both parties submitted petitions for reconsideration. The 

ALJ granted the petitions, in part, on grounds unrelated to this appeal. Tyson 

appealed to the Board, arguing the ALJ erred in awarding TTD benefits through 

April 6, 2020 because Chaplin was released to return to work on March 9, 2020. 

The Board affirmed the ALJ’s decision, finding it was supported by substantial 

evidence. 

This appeal followed.

The ALJ, as “fact finder has the sole authority to judge the weight,

credibility, substance, and inferences to be drawn from the evidence.” Holcim v. 

Swinford, 581 S.W.3d 37, 39 (Ky. 2019) (citation omitted). The ALJ may reject 

any testimony and believe or disbelieve various parts of the evidence. Id. 

Furthermore, “[t]he 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 
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error in assessing the evidence so flagrant as to cause gross injustice.” Western 

Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). “[W]here the party 

with the burden of proof was successful before the ALJ, the issue on appeal is 

whether substantial evidence supported the ALJ’s conclusion.” Holcim, 581 

S.W.3d at 39 (citation omitted). “Substantial evidence means evidence of 

substance and relevant consequence having the fitness to induce conviction in the 

minds of reasonable men.” Id. 

The sole issue on appeal is whether substantial evidence supports the 

ALJ’s award of TTD benefits from March 9, 2020 to April 6, 2020. Tyson alleges 

the ALJ erred by relying on Chaplin’s testimony that his high blood pressure, 

which prevented him from passing his first Department of Transportation

examination, was attributable to his injuries where there was no reliable expert 

testimony supporting this assertion.

There is substantial evidence in the record supporting the ALJ’s 

decision. The question before the ALJ was not the cause of Chaplin’s high blood 

pressure but when he reached MMI. Temporary total disability is defined as “the 

condition of an employee who has not reached maximum medical improvement 

from an injury and has not reached a level of improvement that would permit a 

return to employment[.]” KRS 342.0011(11)(a). Under this statute, an employee 

is entitled to TTD benefits until he either reaches MMI or returns to work. 
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Herein, the ALJ considered testimony from Dr. Burke and Dr. Lyon

regarding when Chaplin reached MMI. On May 18, 2020, Dr. Burke determined 

Chaplin had reached MMI and released him to return to work. On October 8, 

2020, Dr. Lyon determined Chaplin had not yet reached MMI and opined that it 

would take twelve to eighteen months for Chaplin to reach a baseline for pain and 

range of motion. The ALJ was convinced by Dr. Burke’s testimony and found 

Chaplin reached MMI on May 18, 2020. However, because Chaplin returned to 

work on April 6, 2020, the ALJ awarded him TTD benefits until that date. 

Because substantial evidence supports this determination, we find no error. 

Based on the foregoing, the decision of the Workers’ Compensation 

Board is affirmed. 

ALL CONCUR.

BRIEF FOR APPELLANT:

Jo Alice Van Nagell

Brian W. Davidson

Lexington, Kentucky

BRIEF FOR APPELLEE PAUL 

CHAPLIN:

Mark D. Knight

Somerset, Kentucky