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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                                                     NOT TO BE PUBLISHED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 pre-




                                        4
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




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