               IMPORTANT NOTICE
          NOT TO BE PUBLISHED OPINION

   THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
   PURSUANT TO THE RULES OF CIVIL PROCEDURE
   PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
   THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
   CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
   CASE IN ANY COURT OF THIS STATE; HOWEVER,
   UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
   RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
   CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
   OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
    BEFORE THE'COURT. OPINIONS CITED FOR CONSIDERATION
\\ BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
    DECISION IN THE FILED DOCUMENT AND A COPY OF THE
                                             .




    ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
    DOCUMENT TO THE COURT AND ALL PARTIES TO THE
    ACTION.
                                              RENDERED: OCTOBER 29, 2015 '
                                                    NOT TO BE PUBLISHED

               $5uprrittr (Court of Tfirtilivettv
                              2015-SC-000120-WC

                                                                    1-14 1-15     ;b.c. •
SONYA LAMB MIDDLETON                                                APPELLANT



                   ON APPEAL FROM COURT OF APPEALS
V.                    CASE NO. 2014-CA-001136-WC
                  WORKERS' COMPENSATION NO. 12-88059



LOWE'S HOME CENTERS, INC.;
HONORABLE WILLIAM J. RUDLOFF,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD                                         APPELLEES



                  MEMORANDUM OPINION OF THE COURT

                                  AFFIRMING

      Appellant, Sonya Lamb Middleton, appeals a Court of Appeals decision

which reversed a Workers' Compensation Board ("Board") opinion affirming her

award enhanced by the three multiplier. KRS 342.730(1)(c)1. The Court of

Appeals held that application of the triple multiplier was unsupported by the

record and based upon a hypothetical situation. Middleton disagrees, and

argues that application of the three multiplier was supported by the record

because she does not retain the physical capacity to return to the type of work

she performed at the time of her work-related injury. For the below stated

reasons, we affirm.
      Middleton has been employed by Lowe's as a "project specialist for

exteriors" for over twelve years. She suffered a work-related injury consisting

of a ruptured disc at the C6-C7 level in 2012. Middleton underwent an

anterior cervical discectomy and fusion which provided her with some pain

relief. However, she still experiences pain that radiates into her cervical region,

mid to upper back and neck area, and both shoulders.

      Middleton's Form 101 describes the physical requirements of her job as

"Miffing; mainly taking samples out of my vehicle and carrying them into

customers [sic] homes; traveling back & forth from Lowe's to customers [sic]

homes; paperwork/ sales order." After the work-related injury and the

surgeries, Middleton returned to her employment with Lowe's. She is able to

perform all of the physical tasks associated with her job, but claims it is

difficult for her. Middleton alleges that when she pushes or pulls a cart, which

she uses to take materials to customers, pain radiates down her left arm. She

also alleges that she experiences a burning feeling in her neck and numbness

on the first and second fingers on her left hand. Her current medications

include Ibuprofen, Levothyroxine, Flexeril, and Imitrex. Dr. James Owen,

Middleton's medical expert, recommended that she "avoid activities such as

extending her arm posteriorly and pulling" because it seemed to exacerbate her

neck pain and cause radiating pain.

      Dr. Owen and Lowe's medical expert, Dr. Bart Goldman, both assigned

her a 27% permanent whole person impairment to the body as a whole based

on the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition.



                                         2
The Al.,J assigned Middleton that impairment rating and then turned to the

application of the multipliers per KRS 342.730(1)(c). That statute states in

pertinent part:

      1. If, due to an injury, an employee does not retain the physical
      capacity to return to the type of work that the employee performed
      at the time of injury, the benefit for permanent partial disability
      shall be multiplied by three (3) times the amount otherwise
      determined under paragraph (b) of this subsection, but this
      provision shall not be construed so as to extend the duration of
      payments; or
      2. 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.

      The AI ,J made the following findings regarding Middleton's eligibility for

the multipliers:

           I saw and heard [Middleton] testify at the Final Hearing and
      make the factual determination that she is clearly a well-motivated
      worker and her sworn testimony was very credible and convincing.

             In this case, I am required to make an analysis under
      Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003). Based upon
      [Middleton's] sworn testimony and the medical evidence from Dr.
      Owen, which is summarized above, I make the factual
      determination that [Middleton] cannot return to the type of work
      which she performed at the time of her work injuries in accordance
      to KRS 342.730(1)(c)1. I base that factual determination on
      [Middleton's] diagnosis being status post C6-7 anterior cervical
      discectomy and decompression with microsurgical technique and
      insertion of anterior interbody Synthes cage, arthrodesis local
      harvested allograft, anterior instrumentation with Synthes plate
      and screws with persistent neck pain, her 27% permanent
      impairment rating, her statement that she has daily pain at her job
      consisting of aching and stabbing and burning pain from the base
      of her neck radiating up the back of her head posteriorly, muscle


                                         3
      spasms between her shoulder blades with burning and pins and
      needles radiating down her left upper extremity, and pins and
      needles and numbness into her left long and index fingers, and
      also the fact that she takes on a daily basis pain medications,
      consisting of Ibuprofen, Levothyroxine, Flexeril, and Imitrex. She
      testified at the Final Hearing that she has a limited range of motion
      in her neck and that her job is getting progressively more difficult
      and painful. Again, I found her testimony to be very credible and
      convincing. In addition, I make the factual determination that
      [Middleton] has returned to work for [Lowe's] earning the same or
      greater average weekly wage than she earned at the time of her
      work injuries per KRS 342.730(1)(c)2. I make the factual
      determination that potentially both the 2 and the 3 multipliers
      could apply in this case and I must determine which is
      appropriate. I also have to make the determination whether
      [Middleton] is unlikely or likely to be able to continue earning the
      wage that equals or exceeds her wage at the time of her work
      injuries for the indefinite future. Based upon [Middleton's] sworn
      testimony and the persuasive and compelling medical report from
      Dr. Owen, I make the further factual determination that under the
      decision of the Court of Appeals of Kentucky in Adkins v. Pike
      County Board of Education, 141 S.W.3d 387 (Ky. App. 2004), the
      Fawbush analysis includes a broad range of factors, only one of
      which is [Middleton's] ability to perform, her current job. Under
      the Adkins case, the standard for the decision is whether
      [Middleton's] injuries have permanently altered her ability to earn
      an income and whether the application of KRS 342.730(1)(c)1 is
      appropriate. I make the factual determination under [Middleton's]
      sworn testimony and the medical report from Dr. Owen that it is
      unlikely that [Middleton] will be able to continue for the indefinite
      future to do work from which to earn such a wage. Based upon all
      of the above-cited evidence, which is summarized above, I make
      the factual determination that the third prong of the Fawbush
      analysis applies here and that [Middleton's] injuries have
      permanently altered her ability to earn an income, that she is
      unlikely to be able to continue for the indefinite future to do work
      from which to earn such a wage. I, therefore, make the factual
      determination that the third prong of the Fawbush analysis applies
      here and that under the application [Middleton] is entitled to the 3
      multiplier under KRS 342.730(1)(c)1.

The ALJ made further findings of fact in an opinion and order on

reconsideration:




                                        4
        [Lowe's] argues that [Middleton] is not entitled to an award of
enhanced permanent partial disability benefits and that the
Administrative Law Judge erred in so deciding.
        [Middleton] testified that after her neck surgery she returned
to work for Lowe's. She testified in detail about the physical
requirements of her current job. She stated that since returning to
work her job has been very physically demanding. She has a
limited range of motion in her neck and has difficulty climbing into
attics, stooping down and crawling. She also has difficulty moving
items weighing 25-30 pounds in and out of her vehicle. She stated
that her ability to physically perform her job has become
progressively more difficult because of having to lift, pull, and
extend and because of the limitations in her neck and left arm.
Those physical activities have become more painful for her. She
testified that she has extreme sharp shooting pains that go into the
back of her skull and pain down her left arm. After driving, she
has a burning sensation going down into her hands and fingers.
She has numbness in the fingers of her left hand. She has been
attempting to modify her job. She has changed her schedule. At
the end of her work day she goes home and takes pain medication
and then rests on the couch with a heating pad or ice pad. She
takes Motrin, Tylenol, and Flexeril to relieve muscle spasms
between her shoulder blades. Due to her painful symptoms, she
has difficulty sleeping at night. She has to take another Flexeril in
the middle of the night for relief. She stated that taking Flexeril
makes her sleepy. She stated that since her deposition the
physical condition of her neck has gotten worse and the pain has
gotten more frequent, causing her to take more pain medication.
She testified that she did not think that she would be able to keep
up her present pace on the job into the foreseeable future, which
will result in her having to take a huge pay cut.

       In Hush v. Abrams, 584 S.W.2d 48 (Ky. 1979), the Kentucky
Supreme Court stated that where the medical evidence clearly and
unequivocally shows the plaintiff's actual bodily condition, [the
plaintiff's] lay testimony is competent on the question of the extent
of disability which as resulted from his bodily condition, and that
where there is medical testimony from which the decision maker
could conclude that the plaintiff did suffer trauma, the decision
maker could then use lay testimony to determine the extent of the
plaintiff's occupational disability.

     Taking all of the above-cited evidence into consideration, I
make the factual determination that the third prong of the
Fawbush analysis applies here and that under that application
[Middleton] is entitled to the 3 multiplier under KRS


                                   5
      342.730(1)(c)1. In making that determination, I also relied upon
      the opinion of the Kentucky Supreme Court in Adams v. NHC
      Healthcare, 199 S.W.3d 163, 168-69 (Ky. 2006), where the high
      court stated that the standard for decision is whether the injury
      has permanently altered the workers' ability to earn an income and
      that the application of KRS 342.730(1)(c)1 is appropriate if the
      plaintiff returns to work at the same or greater wage, but is
      unlikely to be able to continue for the indefinite future to do work
      from which to earn such a wage.

      The Board affirmed the ALJ's findings and Lowe's appealed to the Court

of Appeals. The Court of Appeals reversed the Board holding that applying the

three multiplier to Middleton's award was unwarranted. The Court of Appeals

held that a Fawbush analysis should not have been conducted because there

was no testimony of record that Middleton currently lacks the physical capacity

to perform the full range of her employment duties. The court noted that while

Middleton indicated she would like some accommodations to make her job

easier, she had not asked Lowe's to implement them. The Court of Appeals

also cited to the fact that Middleton only feared she might need to increase the

medicines she takes to continue performing her job, but had not requested or

. been prescribed those drugs. The Court of Appeals concluded:

      In short, Middleton was granted the three times multiplier based
      upon a hypothetical situation that accommodations (when she
      decides to ask for them) and a prescription for pain relief
      medication (when she obtains one from a physician) might entirely
      prevent. This, in turn, is speculation and does not support an
      enhancement pursuant to KRS 342.730(1)(c)1.

Middleton appealed the reversal of the application to this Court.

      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).


                                         6
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). For the below

stated reasons, we affirm the Court of Appeals.

      Middleton argues that the Court of Appeals erred by reversing the portion

of the ALJ's opinion and order that enhanced her award by the three

multiplier. We disagree. As used in KRS 342.730(1)(c)1, the phrase "the type

of work that the employee performed at the time of injury" refers to the specific

jobs or tasks that the individual performed, rather than the title of the position

or the job classification. Ford Motor Company v. Forman, 142 S.W.3d 141, 145

(Ky. 2004). Thus, a return to the same job title is not dispositive in deciding to

apply the three multiplier. Id.

      In this matter, the uncontradicted evidence is that Middleton has

returned, not only to the same job classification, but also performs the exact

same tasks that she did before her work-related injury. While Middleton might

have difficulty performing those tasks, she admits that she can complete them




                                         7
at this time. Thus, the Court of Appeals was correct in holding that KRS

342.730(1)(c)1 does not apply.

      Middleton counters the fact that she is able to perform the same tasks

now as she did before the work-related injury by stating that she is exceeding

the restrictions placed upon her by her physicians. However, it is unclear that

Middleton must significantly exceed any restriction placed upon her to perform

her job. Additionally, while Middleton takes medications for her pain, she does

not have to take them in excess to perform her job.   See Fawbush, 103 S.W.3d

at 8 (holding that the claimant may be eligible to have his award enhanced by

the three multiplier because he had to take higher doses of narcotics than

prescribed to be able to perform his job). Thus, the ALJ erred by finding that

KRS 342.730(1)(c)1 could apply to Middleton's award.

      For the above stated reasons, we affirm the decision of the Court of

Appeals.

      All sitting. Minton, C.J.; Abramson, Cunningham, Noble, and Venters,

JJ., concur. Barber, J., dissents by separate opinion in which Keller, J., joins.

      BARBER, J., DISSENTING: Respectfully, I dissent. Middleton has

worked for Lowe's as an exterior project specialist for more than twelve years.

On January 9, 2012, she sustained a work-related injury resulting in a

ruptured disc at C6-7. After undergoing a cervical fusion, Middleton returned

to work at Lowe's at the same or greater wage.

      The ALJ properly analyzed the case under Fawbush v. Gwinn, 103

S.W.3d 5 (Ky. 2003) and Adkins v. Pike County Board of Education, 141 S.W.3d



                                        8
387 (Ky. App. 2004), in awarding the three multiplier under KRS

342.730(1)(c)1. In Fawbush, this Court held that where KRS 342.730(1)(c)1

and KRS 342.730(1)(c)2 1 could both apply, the ALJ has the authority to

determine which "is more appropriate on the facts. If the evidence indicates

that a worker is unlikely to be able to continue earning a wage that equals or

exceeds the wage at the time of injury for the indefinite future, the application

of paragraph (c)1 is appropriate." Id. at 12. Adkins holds that:

                       If every claimant's current job was certain to
                continue until retirement and to remain at the same or
                greater wage, then determining that a claimant could
                continue to perform that current job would be the
                same as determining that he could continue to earn a
                wage that equals or exceeds his pre-injury wages.
                However, jobs in Kentucky, an employment-at-will
                state, can and do discontinue at times for various
                reasons, and wages may or may not remain the same
                upon. the acquisition of a new job. Thus, in
                determining whether a claimant can continue to earn


1   KRS 342.730(1)(c) provides in relevant part:
               1. if, due to an injury, an employee does not retain the
              physical capacity to return to the type of work that the
              employee performed at the time of injury, the benefit for
              permanent partial disability shall be multiplied by three (3)
              times the amount otherwise determined under paragraph
              (b) of this subsection, but this provision shall not be
              construed so as to extend the duration of payments; or

                2. 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. This provision shall not be construed so as
                to extend the duration of payments.


                                             9
              an equal or greater wage, the AU must consider a
              broad range of factors, only one of which is the ability
              to perform the current job. Therefore, we remand this
              case to the ALI for a finding of fact as to Adkins'
              ability to earn a wage that equals or exceeds his wage
              at the time of the injury for the indefinite future. If it is
              unlikely that Adkins is able to earn such a wage
              indefinitely, then application of Section c(1) is
              appropriate.
Id. at 390.

      The ALJ's January 15, 2014, Opinion and Award sets forth the basis for

his determination to apply the three multiplier:

              [Middleton's] diagnosis being status post C6-7 anterior
              cervical discectomy and decompression with
              microsurgical technique and insertion of anterior
              interbody Synthes cage, arthrodesis local harvested
              allograft, anterior instrumentation with Synthes plate
              and screws with persistent neck pain, her 27%
              permanent impairment rating, her statement that she
              has daily pain at her job consisting of aching and
              stabbing and burning pain from the base of her neck
              radiating up the back of her head posteriorly, muscle
              spasms between her shoulder blades with burning and
              pins and needles radiating down her left upper
              extremity, and pins and needles and numbness into
              her left long and index fingers, and also the fact that
              she takes on a daily basis pain medications....

      In his January 31, 2014, Opinion and Order on Reconsideration, the ALJ

further explained that:

              [Middleton] testified in detail about the physical
              requirements of her current job. She stated that since
              returning to work her job has been very physically
              demanding. She has a limited range of motion in her
              neck and has difficulty climbing into attics, stooping
              down and crawling. She also has difficulty moving
              items weighing 25-30 pounds in and out of her vehicle.




                                           10
                 She stated that her ability to physically perform her
              [2 ]



             job has become progressively more difficult because of
              having to lift, pull and extend and because of the
              limitations in her neck and left arm. Those physical
              activities have become more painful for her. She
              testified that she has extreme sharp shooting pains
              that go into the back of her skull and pain down her
              left arm. After driving, she has a burning sensation
              going down into her hands and fingers. She has
              numbness in the fingers of her left hand. She has been
              attempting to modify her job. She has changed her
              schedule. At the end of her work day she goes home
              and takes pain medication and then rests on the
              couch with a heating pad or ice pad. She takes Motrin,
             Tylenol and Flexeril to relieve muscle spasms between
             her shoulder blades. Due to her painful symptoms,
              she has difficulty sleeping at night. She has to take
             another Flexeril in the middle of the night for relief.
              She stated that taking Flexeril makes her sleepy. She
              stated that since her deposition the physical condition
             of her neck has gotten worse and the pain has gotten
             more frequent, causing her to take more pain
             medication. She testified that she did not think that
             she would be able to keep up her present pace on the
             job into the foreseeable future, which will result in her
             having to take a huge pay , cut.



2 Middleton described the materials that she has to unload from her vehicle and take

into customers' homes:
              A: I have two large window samples. I have four corner
              window samples. I have railing systems, aluminum railing
              systems. I have composite decking material samples that I
              carry in and out of the home, roofing samples, gutter
              samples. I'm trying to think if that's all. I think that's all the
              samples that I carry in my car.

             Q: I'm assuming you don't carry samples of regular wooden
             treating [sic] decking?
             A: I do, yes, sir, and fencing samples, the pickets cut down
             into smaller sections, so the customer can see the
             differences.

Middleton also explained that after she carries the materials back to her vehicle, she
usually has to rearrange things which involves pulling the materials back out and
redistributing them.


                                              11
                   I saw and heard ... Middleton testify at length at
            the Final Hearing. ... Her testimony about her physical
            pain and symptoms ring true.
                   Dr. Owen stated in his report that restrictions
            should be placed upon Mrs. Middleton's work activities
            as a result of her neck injury and cervical fusion,
            being avoidance of activities, such as extending her
            arm posteriorly and pulling, which seem to exacerbate
            her neck pain and cause radiating pain. Dr. Goldman
            stated in his report that Mrs. Middleton's sensory
            examination in the left upper extremity is consistent
            with a C7/T1 radiculopathy on the left and that she
            also has 2 centimeters of atrophy in her left forearm,
            as compared to her right forearm.

      The Board affirmed the award of the three multiplier. The Court of

Appeals reversed, holding that "[for KRS 342.730(1)(c)1 to apply at all, the

claimant must lack the capacity to perform the pre-injury type of employment

on the date of the award, not sometime in the future." However, the statute

does not speak in terms of lacking capacity on the date of the award. Rather,

KRS 342.730(1)(c)1 provides that the three multiplier applies, "[i]f, due to an

injury, an employee does not retain the physical capacity to return to the type

of work that the employee performed at the time of injury...." Retain is defined

as "No hold in possession or under control; to keep and not lose, part with, or

dismiss." Black's Law Dictionary (10th ed. 2014); See Merriam-Webster

Dictionary OnLine        /                               I   la tina> (visited October

14, 2015) ("to continue to have or use (something)").

      The Court of Appeals concluded that Middleton was awarded the triple

multiplier "based upon a hypothetical situation" which accommodations and

prescription pain medication might prevent, but that this was speculation and



                                        12
did not support an enhancement under KRS 342.730(1)(c)1. I disagree. As the

Court of Appeals noted, Middleton did ask about making the samples she has

to carry smaller and more lightweight. She also asked about using a laser

measuring device instead of a tape measure which would reduce or eliminate

her need to crawl. Management thought those were good ideas. Moreover,

Middleton explained that by the end of the work day her pain is much greater,

that she has extreme muscle spasms, and that it has become more difficult for

her to do her job in the past year, because of the pain in her neck and arm.

She testified that she goes home, takes Ibuprofen and applies heat, then ice.

She also takes Flexeril at bedtime, but cannot take it while she is operating the

truck. Most of the time, she takes another Flexeril in the middle of the night.

      As the Board explained, Middleton's testimony established that she was

struggling to perform her current job which was physically taking its toll. "[Hier

testimony supports a conclusion she will soon be unable to perform her

current job and also earn a wage which equals or exceeds her wage at the time

of the injury. As substantial evidence supports this determination, it cannot be

disturbed ...." I agree. As was his prerogative, the ALJ was persuaded by

Middleton's testimony. "A worker's testimony is competent evidence of his

physical condition and of his ability to perform various activities both before

and after being injured." Ira A. Watson Dep't Store v. Hamilton, 34 S.W.3d 48,

52 (Ky. 2000). "The determination of which multiplier to apply is within the

discretion of the AL I; and in the absence of clear error, that decision will not be




                                         13
overturned." .EPI Corp. v. Boling, No. 2014-SC-000037-WC, 2014 WL 5410318,

at *3 (Ky. Oct. 23, 2014). I would reverse the decision of the Court of Appeals.

      Keller, J., joins.




COUNSEL FOR APPELLANT,
SONYA LAMB MIDDLETON:

Michael Faulkner Eubanks


COUNSEL FOR APPELLEE,
LOWE'S HOME CENTERS, INC.:

James Burke Cooper


COUNSEL FOR AMICUS CURIAE,
THE KENTUCKY CHAPTER OF AMERICAN
FEDERATION OF LABOR AND CONGRESS
OF INDUSTRIAL ORGANIZATIONS (AFL-CIO):

Jeffery Roberts




                                        14
15
