RENDERED: SEPTEMBER 27, 2018

TO BE PUBLISHED

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2017-SC-000377-WC

ACTIVE CARE CHIROPRACTIC, INC.

V. ON APPEAL FROM COURT OF APPEALS

CASE NO. 2017-CA-00469-WC

WORKERS ’ COMPENSATION BOARD NO. 14-WC-81319

KATHERINE RUDD;

HONORABLE JEANIE OWEN MILLER,

ADMINISTRATIVE LAW JUDGE;

WORKERS ’ COMPENSATION BOARD

AND KENTUCKY COURT OF APPEALS APPELLEES

OPINION OF THE COURT BY JUSTICE VANMETER

AFFIRMING

KRSi 342.730(l)(c)2 states: “ During any period of cessation of

. . .

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[.] ’’ 2 The sole

issue for this Court on appeal, an issue of first impression, is whether the two1 Kentucky Revised Statutes.

2 We note that the General Assembly amended KRS 342.730 this past legislative

session. 2018 Ky. Acts ch. 40, § 13. But these amendments do not affect this case in

any way.multiplier under KRS 342.730(l)(c)2 applies to a claimant ’ s benefits when that

claimant returns to work and later retires for reasons not solely related to the

work-related injury itself. We hold that in such circumstances the twomultiplier must be applied to comply with the unambiguous language of KRS

342.730(l)(c)2. Accordingly, we affirm.

I. FACTUAL BACKGROUND.

The facts in this case are not in dispute. Active Care Chiropractic

employed Katherine Rudd part-time. One day, while taking out the trash at

work, she slipped and fell, injuring her shoulder. After three shoulder

surgeries, she returned to work. About a year after her return to work, she

voluntarily retired, for reasons not solely related to the work-related injury. At

her Formal Hearing Rudd stated:

It was not due to the accident, not directly. I was turning sixty,

and I ’ d never had any medical problems before. This kind of made

me re-evaluate things. I decided I wanted to spend what quality

years I have left doing things that provide the greatest satisfaction,

and decided that being a secretary just wasn ’ t doing it for me

anymore. So I retired.

At Rudd ’ s Benefit Review Conference, the parties agreed that the only

issue before the ALJ was the correct multiplier to be applied to Rudd ’ s benefits.

The ALJ acknowledged that the parties originally agreed that no multiplier

would apply. But Rudd argued that changes in the caselaw placed the modifier

application at issue.

Rudd referred to our recent decision in Livingood v. Transfreight, LLC,

467 S.W.3d 249 (Ky. 2015), which overruled the holding in Chrysalis House,

Inc. V. Tackett, 283 S.W.3d 671 (Ky. 2009), that a work-related disability mustbe the reason for an employee ’ s cessation of employment in order to afford

application of the two-multiplier. Instead, Livingood held that “ KRS

342.730{l)(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. ” 467 S.W.3d at 259 (quoting KRS

342.730(l)(c)2).

Rudd argued that, since her cessation from work was not due to

intentional or reckless misconduct, that being the only restriction on a

claimant ’ s ability to recover under the statute, she should be entitled to the

two-multiplier. In other words, because voluntary retirement constitutes a

“ cessation of employment

... for any reason ” and does not constitute

intentional or reckless misconduct under Livingood, she qualified for the twomultiplier.

The ALJ agreed, concluding she was “ bound by the plain wording ” of the

statute and this Court ’ s holding in Livingood, with the only purported

restriction on application of the two-multiplier being the employee ’ s intentional

or reckless misconduct. The Workers ’ Compensation Board ( “ Board ” ) and the

Court of Appeals affirmed the ALJ ’ s decision. Active Care Chiropractic ’ s

( “ Active Care ” ) appeal to this Court followed. See Ky. Const. § 115.IL STANDARD OF REVIEW.

We review statutory interpretation de novo. Cumberland Valley

Contractors, Inc. v. Bell Cty. Coal Corp., 238 S.W.3d 644, 647 (Ky. 2007). The

well-established standard for reviewing a workers ’ compensation decision 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. ” W. Baptist

Hasp. V. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). 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. at 688.

III. ANALYSIS.

KRS 446.080(1) directs that “ [a]ll statutes of this state shall be liberally

construed with a view to promote their objects and carry out the intent of the

legislature).] ” This Court ’ s goal, in construing statutes, “ is to give effect to the

intent of the [legislature]. We derive that intent

. . . from the language the

[legislature] chose, either as defined by the [legislature] or as generally

understood in the context of the matter under consideration. ” Livingood, 467

S.W.3d at 256 (internal quotations and citations omitted). “ General principles

of statutory construction hold that a court must not be guided by a single

sentence of a statute but must look to the provisions of the whole statute and

its object and policy. ” Cty. of Harlan v. Appalachian Reg ’ I Healthcare, Inc., 85

S.W.3d 607, 611 (Ky. 2002). However, when construing provisions to matchobjectives of whole statutes, “ [w]e have a duty to accord to words of a statute

their literal meaning unless to do so would lead to an absurd or wholly

unreasonable conclusion. ” Livingood, 467 S.W.Sd at 257-58 (internal citations

and quotations omitted). Moreover, “ ‘ it is neither the duty nor the prerogative

of the judiciary to breathe into the statute that which the Legislature has not

put there. ” ’ WUson v. SKWAlloys, Inc., 893 S.W.2d 800, 802 (Ky. App. 1995)

(quoting Gateway Constr. Co. v. Wallbaum, 356 S.W.2d 247, 248-49 (Ky.

1962)).

The plain language of KRS 342.730(l)(c)2 unquestionably supports

Rudd ’ s position: “ During any period of cessation of

. . . employment, temporary

or permanent, for any reason, with or without cause, ” a claimant shall be

awarded permanent-partial disability benefits as modified by the twomultiplier. (emphasis added). Taken at face value, Rudd ’ s argument, that

voluntary retirement and removal from the workforce for reasons not solely

related to the workplace injury qualifies as “ cessation of

. . . employment

. . .

for any reason ” and affords the application of the two-multiplier to benefits

received, is supported by the language of the statute.

Active Care argues that this Court should disregard this unambiguous

language and carve out an exception akin to the intentional misconduct

exception from Livingood. In Livingood, we noted the “ legislative intent in KRS

Chapter 342 that an employee should not benefit from his own wrongdoing. ”

467 S.W.3d at 258. The many examples throughout Chapter 342 barring

compensation due to wrongdoing by the employee exemplify this legislativeintent and support the exception fashioned in Livingood. See KRS 342.035(3)

(denying compensation for unreasonable failure to follow medical advice);

342.165(2) (denying compensation when employee knowingly and willingly

makes a false representation regarding physical condition at time of

employment); 342.610(3) (denying compensation when injury occurs due to

voluntary intoxication or willful intent to injure oneself or another).

In the present case, absent any evidence of Rudd ’ s intentional or reckless

wrongdoing, no exception to the unambiguous language of KRS 342.730(l)(c)2

precludes the recovery of the two-multiplier. Indeed, voluntary retirement

cannot possibly be construed as “ an intentional, deliberate action with a

reckless disregard of the consequences. ” Livingood, 467 S.W.3d at 259.

Instead, voluntary retirement falls squarely within the statute as a “ cessation of

. . . employment

... for any reason, with or without cause).] ” KRS

342.730(l)(c)2.

As stated previously, we have a “ duty to accord to words of a statute

their literal meaning unless to do so would lead to an absurd or wholly

unreasonable conclusion. ” Livingood, 467 S.W.3d at 257-58. In Livingood, we

determined that allowing an employee to “ benefit from his own wrongdoing ”

would lead to such a wholly unreasonable result based upon the whole of

Chapter 342. Id. at 257. Here, however, a literal construction of KRS

342.730(l)(c)2 prescribes that Rudd receive the two-multiplier because

voluntary retirement is a “ cessation of

. . . employment

... for any reason, ” and

does not lead to an absurd or unreasonable result in conjunction with the restof Chapter 342, unlike intentional misconduct, even if the purpose of the

statute is to “ encourage continued employment, ” as Livingood noted in dicta.

Id.

Thus, when an individual voluntarily chooses to retire, a decision made

for reasons not solely related to that individual ’ s work-related injury, that

individual is entitled to the two-multiplier listed in KRS 342.730(l)(c)2. Such a

conclusion complements our decision in Livingood, a case in which we

recognized an appropriate limitation on the use of KRS 342.730(l)(c)2 ’ s twomultiplier in accordance with other provisions of KRS Chapter 342.

rv. CONCLUSION.

A workers ’ compensation claimant is entitled to a two-multiplier under

KRS 342.730(l)(c)2 when that individual voluntarily chooses to retire.

Accordingly, the judgment is affirmed.

All sitting. Cunningham, Hughes, Keller, VanMeter, Venters, and

Wright, JJ., concur. Minton, C.J., dissented with opinion.

MINTON, C.J., DISSENTING: Today the Court introduces a strictly textualist

reading of KRS 342.730(l)(c)(2) to give Katherine Rudd, who voluntarily

removed herself from the workforce for reasons completely unrelated to a workrelated injury, enhanced workers ’ compensation benefits. In my view, the

majority ’ s new approach leads to an absurd result, a result contrary to the

legislative purpose of the workers ’ compensation statutes that we have

recognized in our recent decisions. Respectfully, I must dissent.

7The plain language of KRS 342.730(l)(c)(2) undoubtedly supports Rudd ’ s

and the majority ’ s position: “ During any period of cessation of.

. . employment,

temporary or permanent, for any reason, with or without cause, ” ^ a claimant

shall be awarded permanent-partial disability benefits as modified by the twomultiplier. Taken at face value, Rudd ’ s argument, that voluntary retirement

and removal from the workforce for reasons unrelated to the workplace injury

qualifies as “ cessation of

. . . employment

. . . for any reason ” and triggers

application of the two-multiplier to benefits received, appears to be supported

by the language of the statute.

But KRS 446.080(1) mandates that “ [a]ll statutes of this state shall be

liberally construed with a view to promote their objects and carry out the intent

of the legislature

. . .. ” 4 “ In construing statutes, our goal

... is to give effect to

the intent of the [legislature]. We derive that intent.

. . from the language the

[legislature] chose, either as defined by the [legislature] or as generally

understood in the context of the matter under consideration. ” 5 “ General

principles of statutory construction hold that a court must not be guided by a

single sentence of a statute but must look to the provisions of the whole statute

and its object and policy. ” ^

3 (emphasis added)

.

4 Livingood v. Transfreight, LLC, 467 S.W.3d 249, 256 (Ky. 2015).

5 Id. (quoting Shawnee Telecom Res., Inc. v. Brown, 354 S.W.3d 542, 551 (Ky. 2011)).

6 County of

Harlan v. Appalachian Reg ’ I Healthcare, Inc., 85 S.W.3d 607, 611 (Ky

2002).

8Even more importantly, “ Generally speaking, when interpreting statutes,

this court focuses on ‘ giv[ing] the words of the statute their literal meaning and

effectuat[ing] the intent of the legislature. ’ But even if the language is clear, we

will not promote an absurd result. ” '^ “ We have a duty to accord to words of a

statute their literal meaning unless to do so would lead to an absurd or wholly

unreasonable conclusion. ” ^ Moreover, “ The legislature ’ s intention ‘ shall be

effectuated, even at the expense of the letter of the law. ’ ” ^

“ It has long been established that the purpose of awarding 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. ” lo “ KRS

342.730(1) provides income benefits to replace some of the wages that workers

lose due to the occupational effects of work-related injuries. “ Consistent with

. . . KRS 342.710(l) ’ s goal of encouraging a return to work, KRS 342.730(l)(c)2

focuses on post-injury wages. ” 12 “ The purpose of KRS 342.730(l)(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

7 Mills V. Department of Corrections Offender Information Services, 438 S.W.3d 328, 330

(Ky. 2014) (quoting Samons v. Kentucky Farm Bureau Mut. Ins. Co., 399 S.W.3d 425,

429 (Ky. 2013)).

8 Bailey v. Reeves, 662 S.W.2d 832, 834 (Ky. 1984).

9 Cosby V. Commonwealth, 147 S.W.3d 56, 58-59 (Ky. 2004) (quoting Commonwealth

V. Rosenfeld Bros & Co., 80 S.W. 1178, 1180 (Ky. 1904)).

10 Ball V. Big Elk Creek Coal Co., 25 S.W.3d 115, 117 (Ky. 2000).

11 Toy V. Coca Cola Enterprises, 274 S.W. 3d 433, 434-35 (Ky. 2008).

12 Id. at 435.basic benefit in addition to their wage but assuring them of a double benefit if

the attempt proves to be unsuccessful. ”

In addition to the above-listed purposes of KRS 342.730(l)(c)(2), in

Livingood, we acknowledged “ [KRS 342.730(l)(c)(2) ’ s] obvious purpose of

encouraging continued employment. ”

Awarding an individual who has voluntarily chosen to retire and remove

herself from the workforce a two-multiplier on her permanent-partial disability

benefits is completely inconsistent with the purpose of KRS 342.730(l)(c)(2).

Awarding a voluntary retiree a two-multiplier flies in the face of the purpose of

KRS 342.730{l)(c)(2), which is “ to keep partially disabled workers in the habit

of working and earning as much as they are able. ” !^ Such a windfall does not

“ create[] an incentive for them to return to work, ” i® nor does it “ encourag[e]

continued employment. ” Rather, contrary to these purposes, doubling the

wage-loss benefits of those who choose voluntarily to retire and remove

themselves from the workforce for reasons unrelated to the work-related injuiy

creates the opposite incentive, i.e. to choose to retire rather than to attempt to

work.

The majority ’ s result is not only absurd, but flies in the face of the intent

of the workers ’ compensation statutoiy framework. Livingood is a recent

13 Id. at 435.

1"* Livingood, 467 S.W.3d at 257 (emphasis added).

15 Toy, 274 S.W.3d at 435.

15 Id.

17 Livingood, 467 S.W.3d at 257.

10unanimous decision by this Court that did exactly what I urge that we do

here

— read KRS 342.730(1 )(c)(2) in a way that differs from the plain text to

effectuate the purpose of workers ’ compensation. Instead of the employer

voluntarily retiring from the workforce for reasons unrelated to workplace

injury, as in our case today, the employer in Livingood was let go for, in part,

negligent conduct. He made the same claim Rudd makes here

— the statute

says a double multiplier shall be applied for any cessation of employment

whatsoever? 9

The Court cited all the statutory canons of construction calling for

effectuating the intent of the legislature that I have, and more, in its analysis. 20

The Court then overruled our prior holding in Chrysalis House, Inc. v. Tackett, 21

which stated that a double multiplier shall be applied only if the cessation is

related to the workplace injury.22

Importantly, the Court was very specific as to why it was overruling

Chrysalis House: “ Requiring that the cessation of employment at the same or

greater wage must relate to the disabling injury does not promote the statute's

obvious purpose of encouraging continued employment. Moreover, such a

construction does little to discourage employers from taking workers back after

18 Id. at 253.

19 Id. at 255.

20 Id. at 256-58.

21 283 S.W.3d 671 (Ky. 2009).

22 Livingood, 467 S.W. 3d at 257 (citing Chrysalis House, 283 S.W.3d at 674).

11an injury just long enough to avoid liability for a greater award

. ” 23 In other

words, the Court first identified that the Chrysalis House holding should be

overruled, not because of the language of the statute, but because the holding

did not effectuate the intent of the legislature.

The Court then went on to analyze the actual language of the statute,

finding that the language supported its overruling of Chrysalis House. But

most importantly, we said this: “ Nevertheless, a literal construction of KRS

342.730(l)(c)(2) would lead to an unreasonable result if an employee

... is

allowed to benefit from his own wrongdoing. ” 24 We then went on to find

evidence of legislative intent in other provisions of Chapter 342 that punished

an employee for wrongdoing, and came to the conclusion “ that the legislature

did not intend to reward an employee ’ s wrongdoing with a double benefit. ” 25

Finally, we held “ that KRS 342.730(l)(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. ” 26 The latter

language of that holding, beginning with “ except where the reason is

. . . ”

, was

entirely inserted into the language of the statute by this Court and is nowhere

to be found in KRS 342.730(1) (c)(2).

23 Livingood, 467 S.W.3d at 257.

24 Id.

25 Id. at 259.

26 Id.

12My point with this detailed discussion of what we unanimously said in

Livingood is to show two very pertinent instances in which this Court departed

from the literal language of the same text at issue today to effectuate the intent

of the workers' compensation statute. By the logic of the majority in this case,

Livingood has been clearly overruled because we added language to KRS

342.730(l)(c)(2) that is not there to effectuate the intent of the statute in that

case. 27

The fact of the matter is that the Court in Livingood did not apply a strict

reading of KRS 342.730(l)(c)(2); instead, the Court did literally the same thing 1

am espousing here

— read KRS 342.730(l)(c)(2) to effectuate legislative intent

and not render an absurd result. And the fact that the Livingood Court had to

go outside KRS 342.730(l)(c)(2) to piecemeal language from other provisions to

support its holding supports the assertion that effectuating legislative intent is

more important than following the literal words of the statute, when following

the literal words renders an “ absurd or wholly unreasonable conclusion. ” 28

Not only has the majority overlooked our statutory canons, but it has

also completely contradicted itself in this case when compared to Livingood. For

these reasons, I must respectfully dissent. The majority ’ s result should signal

to the General Assembly that a change is needed to remedy the reach of the

majority ’ s conclusion.

27 I believe Livingood to be the correct decision. Nothing in this dissent should be

construed to make the reader believe that I disagree with Livingood.

28 Bailey, 662 S.W.2d at 834.

13COUNSEL FOR APPELLANT;

Richard Christion Hutson

Whitlow, Roberts, Houston 85 Straub, PLLC

300 Broadway

P.O. Box 995

Paducah, KY 42002-0995

COUNSEL FOR APPELLEE: KATHERINE RUDD

Mark Lane Ashburn

535 Broadway

P.O. Box 268

Paducah, KY 42002-0268

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