                                             RENDERED: FEBRUARY 18, 2016
                                                        TO BE PUBLISHED

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                             2014-SC-000561-WC
                                                     DATE         I 4 0 u,,
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TRANE COMMERCIAL SYSTEMS                                            APPELLANT


                 ON APPEAL FROM COURT OF APPEALS
V.                   CASE NO. 2014-CA-000626-WC
            WORKERS' COMPENSATION BOARD NO. 10-WC-89621


DELENA TIPTON;
HONORABLE THOMAS G. POLITES,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD                                         APPELLEES


               OPINION OF THE COURT BY JUSTICE KELLER

                                  REVERSING

      The sole issue before this Court is whether Delena Tipton was entitled to

temporary total disability (TTD) income benefits after she had returned to work

for Trane Commercial Systems (Trane). The Administrative Law Judge (ALJ)

determined that she was not, a determination affirmed by the Workers'

Compensation Board (the Board), but reversed by the Court of Appeals. Having

reviewed the record, we reverse the Court of Appeals and reinstate the ALJ's

opinion and award.

                              I. BACKGROUND.

      The underlying facts are not in dispute. Tipton began working at the

Trane commercial air conditioning manufacturing plant in 1990. On May 6,
2010, while working in the control department testing air conditioner units,

Tipton fell and fractured her right patella. At that time, Tipton's job required

her to frequently bend, squat, crawl, and kneel in order to connect various

electrical components in the units for testing. Prior to performing this job,

Tipton had worked assembling the units.

      Following her injury, Tipton was off work until March 22, 2011, when

she was released by her treating physician to return to sedentary work activity

with no overtime. Tipton did return to work at a different job, assembling

electrical-circuit boards and earning the same hourly rate of pay as she had

before the injury. This job required no squatting, bending, kneeling, or

crawling, and Tipton could perform it while either sitting or standing. On July

7, 2011, Tipton's physician released her to return to her pre-injury job duties,

but continued the 8 hour-per-day restriction. Tipton, who did not believe she

could perform her pre-injury job duties without significant problems, bid on

and was permanently placed in the circuit board assembly job. At some point

thereafter Tipton began working overtime again, and her hourly pay rate has

increased.

      Trane stopped paying Tipton TTD benefits when she returned to work.

Before the ALJ, Tipton argued that she was entitled to those benefits through

July 7, 2011, when her physician determined that she had reached maximum

medical improvement (MMI) and released her to return to her pre-injury job.

The ALJ denied Tipton's claim for the additional TTD benefits, finding that she

had not reached MMI until July 7, 2011, but that her release and return to


                                         2
"customary, non-minimal work" justified termination of TTD benefits when

Tipton returned to work on March 22, 2011.

      Tipton appealed the ALJ's award of TTD benefits to the Board, and the

Board affirmed. Tipton then sought review before the Court of Appeals, which

reversed the Board. 1 In doing so, the Court cited to its opinion in Bowerman v.

Black Equipment Co., 297 S.W.3d 858 (Ky. App. 2009), for the proposition that

an injured employee who has not reached MMI but has returned to work is

entitled to receive TTD benefits until she returns to the "type of work [she] had

performed . . . when injured or to other customary work."      Id. at 876. Based on

its review of the record, the Court determined that Tipton had not performed

the circuit board assembly job prior to her injury; therefore, it concluded that

her return to work on March 22, 2011 did not terminate her entitlement to TTD

benefits. Trane appeals that determination and conclusion by the Court of

Appeals.

                           IL STANDARD OF REVIEW.

      The issue we must decide is what the phrase "return to employment" as

used in Kentucky Revised Statute (KRS) 342.0011(11)(a) means. Resolution of

that issue requires us to interpret a statute, which we do de novo. Saint

Joseph Hosp. v. Frye, 415 S.W.3d 631, 632 (Ky. 2013).




      1 Tipton also appealed the ALJ's failure to award her enhanced benefits under

  KRS 342.730(1)(c)1, the three-times multiplier, to the Board and the Court of
  Appeals, both of which affirmed the ALJ. Tipton has not filed a cross-appeal and is
  not pursuing that issue before us.

                                          3
                                   III. ANALYSIS.

       "'Temporary total disability' means 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). Or, to put it positively, an employee is entitled to receive

TTD benefits until such time as she reaches maximum medical improvement

(MMI) or has improved to the point that she can return to employment. There

is no dispute that Tipton reached MMI on July 7, 2011. However, the parties

dispute whether Tipton reached the point that she could "return to

employment" when she returned to work for Trane assembling circuit boards.

The ALJ and the Board concluded that her return to work and return to

employment occurred at the same time. As noted above, the Court of Appeals

disagreed. For the reasons set forth below, we disagree with the Court of

Appeals.

      Initially, we note that KRS Chapter 342 ties entitlement to income

benefits to an employee's employment status or ability to perform work in three

pertinent areas: TTD, permanent total disability (PTD), and application of the

three times multiplier in KRS 342.730(1)(c)1. Entitlement to PTD, in pertinent

part, is tied to "a complete and permanent inability to perform any type of

work," KRS 342.0011(11)(c). Entitlement to the three times multiplier is tied to

the inability to "return to the type of work . . . performed at the time of injury."

KRS 342.730(1)(c)1. However, for reasons that are unclear from the statute,

entitlement to TTD is tied to an employee's ability to "return to employment."


                                          4
KRS 342.0011(11)(a). Furthermore, while the legislature chose to define "work"

- "providing services to another in return for remuneration on a regular and

sustained basis in a competitive economy" KRS 342.0011(34) - it did not

choose to define "employment." Since the adoption of these statutory

provisions in 1996, the ALJs, the Board, and the Courts have been called upon

to interpret and apply them numerous times.

      Those interpretations have evolved over time, and we believe that the

case law regarding PTD and the three times multiplier is clear, if not always

applied correctly. To determine if an injured employee is permanently totally

disabled, an ALJ must consider:

      factors such as the worker's post-injury physical, emotional,
      intellectual, and vocational status and how those factors interact.
      It also includes a consideration of the likelihood that the particular
      worker would be able to find work consistently under normal
      employment conditions. A worker's ability to do so is affected by
      factors such as whether the individual will be able to work
      dependably and whether the worker's physical restrictions will
      interfere with vocational capabilities. The definition of "work"
      clearly contemplates that a worker is not required to be
      homebound in order to be found to be totally occupationally
      disabled.

Ira A. Watson Dep't Store v. Hamilton, 34 S.W.3d 48, 51 (Ky. 2000) (citation

omitted). 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." Ford Motor Co. v. Forman, 142 S.W.3d 141, 145 (Ky. 2004).

      On the other hand, the case law regarding what constitutes a "return to

employment" is less clear both in explanation and application. We first


                                        5
addressed "return to employment" in Cent. Kentucky Steel v. Wise,     19 S.W.3d

657 (Ky. 2000). Wise suffered a work-related left arm fracture on April 28,

1997. Id. at 658. His physician released him to return to work on July 11,

1997, with a left arm lifting restriction of five pounds; however, Wise did not

return to work until September 30, 1997, and his physician stated that Wise

reached MMI on October 28, 1997. Id. at 659. Faced with this evidence, the

ALJ awarded Wise TTD benefits from April 28, 1997 through September 30,

1997. Id. Central Kentucky Steel appealed that award, arguing that Wise's

entitlement to TTD benefits ended on July 11, 1997, when he was released to

return to restricted work duties. Id. This Court disagreed, holding: "It would

not be reasonable to terminate the benefits of an employee when he is released

to perform minimal work but not the type that is customary or that he was

performing at the time of his injury" and noting that "Wise did not return to

work until the end of September." Id. Therefore, we concluded that sufficient

evidence of substance supported the ALJ's award of TTD benefits through the

date Wise returned to work. Id.

      We next addressed return to employment in Double L Const., Inc. v.

Mitchell, 182 S.W.3d 509 (Ky. 2005). Mitchell worked full-time as a carpenter

for Double L and part-time as a janitor for Sky Brite.   Id. at 511. While

working for Double L, Mitchell suffered a left eye injury on January 6, 2003.

Id. Mitchell underwent surgery, and, on March 3, 2003, his physician released

him to return to work on light duty. Id. Mitchell then changed physicians, and

underwent two additional surgeries. Id. Mitchell's second physician released


                                         6
him to return to work as a carpenter on August 18, 2003. Id. During the

litigation, Mitchell testified that he had not returned to work as a carpenter and

that he had not missed any of his janitorial work. 182 S.W.3d at 512. The ALJ

ordered Double L to pay Mitchell TTD benefits from the date of injury through

August 18, 2003. Id. Double L argued that it should not have been required to

pay any TTD benefits because Mitchell continued working in his part-time

janitorial job. Id.

      This Court disagreed. In doing so, the Court first held that, "unlike the

definition of permanent total disability, the definition of TTD does not require a

temporary inability to perform 'any type of work."   Id. at 513. The Court then

reiterated the holding from Wise, and concluded that "a work-related injury

results in a temporary inability to perform the job in which it occurred." Id. at

515. Therefore, the Court affirmed the ALJs finding that Mitchell was entitled

to TTD benefits until released to return to work as a carpenter.   Id.

       We next addressed return to employment in FEI Installation, Inc. v.

Williams, 214 S.W.3d 313 (Ky. 2007). Williams, a working foreman for FEI,

injured his elbow on August 24, 2003, and was restricted to one-handed duty

until he underwent surgery on November 17, 2003.       Id. at 315. Following

surgery, Williams's physician took Williams off work completely until March 1,

2004, when he released Williams to return to full-duty work.     Id. at 316. FEI

paid, and the ALI awarded, TTD benefits from the date of surgery through

March 1, 2004. Id. The ALJ denied Williams's claim for TTD benefits from the

date of injury to the date of surgery based on his conclusion that one-handed


                                         7
work was within the scope of Williams's customary work. Id. at 317. This

Court, like the Court of Appeals, concluded that "the overwhelming evidence,

indicated that [Williams's] injury prevented him from performing his customary

work" prior to surgery and that "[i]t was unreasonable to conclude that

[Williams's] customary work came within his restrictions." 214 S.W.3d at 317.

      The Court of Appeals then rendered Bowerman. Bowerman suffered a

back injury on October 14, 2004, while working as a mechanic at Black

Equipment. 297 S.W.3d at 861. He was able to return to light duty work and

worked until April 22, 2005, when his physician took him off work and

prescribed physical therapy. Id. Black Equipment did not pay for all of the

recommended physical therapy and Bowerman sought interlocutory relief.          Id.

at 861-62. The AI,J held an interlocutory hearing on September 21, 2005, after

which Bowerman filed an undated letter from Black Equipment indicating he

had been discharged for failing to report for light duty work.   Id. at 862. The

ALJ entered an interlocutory opinion finding that Bowerman had not reached

MMI and placing the claim in abeyance so that Bowerman could get additional

medical treatment. Id. at 863. However, because she found that Bowerman

was "able to work consistently under normal employment conditions," the AI.,J

denied Bowerman's claim for TTD during the period of abeyance.       Id. In

October 2006, Bowerman moved to remove the claim from abeyance, and the

ALJ reopened proof. Id. at 864. The parties filed additional medical evidence,

all of which covered the period of treatment after the interlocutory hearing.   Id.

The Al.,J then rendered a final opinion in which she found, contrary to her


                                         8
interlocutory opinion, that Bowerman had reached MMI on September 6, 2005,

which was prior to the interlocutory hearing. 297 S.W.3d at 865. She then

awarded Bowerman TTD benefits from April 27, 2005 through September 6,

2005; however, she did not award any TTD benefits for the period the claim

was in abeyance. Id.

      The Court of Appeals reversed the ALJ holding that, absent the

introduction of new evidence, fraud, or mistake, the AL.1 could not alter her

interlocutory findings of fact.   Id. at 867. The Court then held that "[t]he

overwhelming weight of the lay and medical evidence adopted by the ALJ in her

interlocutory opinion compelled an award of ongoing TTD benefits under proper

application of KRS 342.0011(11)(a) and Wise." Id. at 875. In doing so, the

Court noted that the ALJ specifically stated in her interlocutory order that she

believed Bowerman's physician who had taken Bowerman off work on April 22,

2005 and had not released Bowerman to "the type of work he performed when

injured or to other customary work" prior to when he determined Bowerman

had reached MMI. Id. at 865, 876. Based on the preceding, the Court

concluded that Bowerman was entitled to TTD benefits "during abatement of

[his] claim." Id. 876.

      The employee in only one of the preceding cases, Williams, worked while

simultaneously being entitled to TTD. That case, which involved concurrent

employment, is distinguishable on its face. The Court of Appeals in this case

held that Tipton was entitled to TTD while she was working full-time for Trane

and earning the same hourly rate. This holding by the Court of Appeals was


                                          9
based on a misunderstanding of Bowerman and an understandable

misinterpretation of what "return to employment" means.

      As to Bowerman, the Court of Appeals stated that:

      [E]ven though Bowerman had resumed working for Black
      Equipment as of October 25, 2004, his ability to perform the light
      duties assigned to him merely demonstrated that Bowerman was
      capable of returning to "some form of work," as opposed to the
      "type of work he had performed at Black when injured or to other
      customary work," and therefore, did not evince a "return to
      employment" within the meaning of KRS 342.0011(11)(a). Thus,
      Bowerman, indicates that light-duty assignments consisting of
      duties entirely different from pre-injury work duties cannot be
      considered a "return to employment" for the purpose of awarding
      TTD.

Tipton v. Trane Commercial Sys., No. 2014-CA-000626-WC, 2014 WL 4197504,

*6 (Ky. Ct. App. Aug. 22, 2014), as modified (Sept. 12, 2014). However, as

noted above, the Court of Appeals only held that Bowerman was entitled to

additional TTD for part of the period his claim was in abeyance, a period when

he was not working. It did not hold that he was entitled to TTD for the period

before his claim was placed in abeyance and during which he had worked.

      As to "return to employment," we recently addressed this issue in

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

his shoulder on September 16, 2009, while operating a forklift for Transfreight.

Id. at 252. He underwent two surgeries and was off work from November 11,

2009 through March 2, 2010, when he returned to work on light duty.        Id. On

October 5, 2010, Livingood underwent a third surgery and was off work again

until December 13, 2010, when he returned to work without restrictions.      Id.

Transfreight discharged Livingood on December 23, 2010 because he had


                                       10
bumped a forklift he was operating into a pole. 467 S.W.3d at 252. The ALA

denied Livingood's claim for TTD benefits during the time that he worked light

duty. Id. at 253. In doing so, the ALJ noted that Livingood had performed the

majority of his light duty tasks as part of his pre-injury regular-duty job. Id.

      On appeal, Livingood, relying on Wise and Double L Construction, argued

that he was entitled to additional TTD benefits while on light duty because he

was not performing his customary work as a forklift operator.      Id. at 254. We

disagreed and affirmed the ALA, noting that Double L Construction involved

concurrent employment, an issue not present in Livingood's case, and that the

employee in Wise, unlike Livingood, had not returned to work during the

disputed period. Id. Furthermore, in an attempt to clarify the Wise line of

cases, we reiterated our holding from Advance Auto Parts v. Mathis, No. 2004-

SC-0146-WC, 2005 WL 119750 (Ky. Jan. 20, 2005), that " Wise does not 'stand

for the principle that workers who are unable to perform their customary work

after an injury are always entitled to TTD."' Id. at *3.

      We take this opportunity to further delineate our holding in Livingood,

and to clarify what standards the ALJs should apply to determine if an

employee "has not reached a level of improvement that would permit a return

to employment." KRS 342.0011(11)(a). Initially, we reiterate that "[title

purpose for awarding income benefits such as TTD is to compensate workers

for income that is lost due to an injury, thereby enabling them to provide the

necessities of life for themselves and their dependents."   Double L Const., Inc.,

182 S.W.3d at 514. Next, we note that, once an injured employee reaches MMI


                                         11
that employee is no longer entitled to TTD benefits. Therefore, the following

only applies to those employees who have not reached MMI but who have

reached a level of improvement sufficient to permit a return to employment.

      As we have previously held, "[i]t would not be reasonable to terminate the

benefits of an employee when he is released to perform minimal work but not

the type [of work] that is customary or that he was performing at the time of

his injury." Central Kentucky Steel v. Wise,   19 S.W.3d at 659. However, it is

also not reasonable, and it does not further the purpose for paying income

benefits, to pay TTD benefits to an injured employee who has returned to

employment simply because the work differs from what she performed at the

time of injury. Therefore, absent extraordinary circumstances, an award of

TTD benefits is inappropriate if an injured employee has been released to

return to customary employment, i.e. work within her physical restrictions and

for which she has the experience, training, and education; and the employee

has actually returned to employment. We dci not attempt to foresee what

extraordinary circumstances might justify an award of TTD benefits to an

employee who has returned to employment under those circumstances;

however, in making any such award, an ALJ must take into consideration the

purpose for paying income benefits and set forth specific evidence-based

reasons why an award of TTD benefits in addition to the employee's wages

would forward that purpose.

      Applying the preceding to this case, we must agree with the ALJ that

Tipton was not entitled to TTD during the period in question. Tipton's


                                        12
 physician released her to perform light and sedentary work, which Trane

 provided for her. Additionally, although Tipton had not previously assembled

 circuit boards, she had assembled the air conditioning units and had tested

 them. Furthermore, she did not produce any evidence that assembling circuit

 boards required significant additional training or that it was beyond her

 intellectual abilities. In fact, it appears that Tipton was certainly capable of

 and wanted to perform the circuit board assembly job because she bid on and

 was awarded the job after her release to full-duty work. Thus, there was ample

 evidence of substance to support the ALJ's denial of Tipton's request for

 additional TTD benefits, and we reverse the Court of Appeals.

                                  IV. CONCLUSION.

       For the foregoing reasons, the Court of Appeals is reversed.

       All sitting. All concur.



 COUNSEL FOR APPELLANT:

 Donald Cameron Walton III
 Ward, Hocker 86 Thornton, PLLC


" COUNSEL FOR APPELLEE, DELENA TIPTON:

 Larry Duane Ashlock
 Morgan 86 Morgan




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