SAFE ZONE v. PERRY (2026)

An Administrative Law Judge (“ALJ”) awarded Donnell Perry benefits for work-related injuries he sustained after being struck by a car while crossing the road on foot. The Workers’ Compensation Board (“Board”) affirmed the ALJ and the Court of Appeals, in turn, affirmed the Board. Having carefully reviewed the law, record, and briefs, we affirm the decision of the Court of Appeals.

FACTS AND PROCEDURAL HISTORY

Perry was employed by Safe Zone as a traffic control flagger beginning in July 2021. His job duties included directing traffic around road construction sites, setting up and removing traffic cones, barricades, and signs, and informing construction crews about any traffic-related safety issues. On March 8, 2023, Perry reported to Safe Zone for work at 7:00 a.m. and worked at three different locations in Jefferson County, Kentucky, that day. He received his work assignments via cellphone and was transported to each worksite by onsite supervisors. Perry worked at the first worksite for approximately eight hours before being assigned to a second worksite where he worked for a couple of hours. He was then asked to report to a third location near Dixie Highway where Louisville Gas & Electric Co. employees were working to remove fallen trees and repair downed power lines. Perry's job duties at the third site involved the placement of signs to close the road.

After Perry had been at the worksite for two to three hours, he received permission from the onsite supervisor to go to a convenience store across Dixie Highway to purchase a phone charger and cigarettes. Notably, it was important for Perry to keep his cellphone charged because he received work communications from Safe Zone. As he was crossing Dixie Highway to return to the worksite, Perry was struck by a car that was operating without headlights and sustained severe injuries.

Perry was transported to the University of Louisville Hospital, where he underwent a blood alcohol test, which showed 47 mg/dL of ethanol in his system. He remained in the hospital for one week, and he received various treatments, including the placement of two screws in his left ankle and a rod in his left leg. Perry was initially prescribed a walker and now walks with a cane. He is currently unable to stand for long periods of time due to pain. Perry also underwent surgery consisting of the removal of a small portion of his intestine due to the accident.

Dr. Jeffrey Fadel evaluated Perry at his counsel's request and issued a report on November 27, 2023. Dr. Fadel diagnosed a work-related right lung pneumothorax and left tibia comminuted and segmental fracture. He further noted that the work accident required two small bowel enterotomies. Dr. Fadel assessed an eleven percent impairment rating for the left ankle and tibia conditions. He placed Perry at maximum medical improvement (“MMI”) on October 15, 2023. Dr. Fadel opined Perry could not perform his pre-injury work and recommended restrictions consisting of no standing in one location for more than 30 minutes without a 10-minute rest period. Dr. Fadel further placed restrictions on Perry's climbing of stairs and ladders and limited his ability to carry over twenty-five pounds in weight for short distances.

Dr. Daniel Wolens reviewed various medical and administrative records and issued a report on September 13, 2023. He noted that Kentucky law sets the ethanol concentration for driving under the influence at 80 mg/dL, and Perry's blood tested positive for ethanol at a level of 47mg/dL when he was tested at the hospital following the accident. Dr. Wolens further observed the anesthesia record referenced the fact that Perry drank a six-pack of beer per day and had smoked marijuana and used cocaine the day before the work accident. Dr. Wolens estimated Perry's blood alcohol level was between 56.7 and 68.3 mg/dL at the time of the accident and opined Perry likely fell within the higher end of the range. For the purposes of his evaluation, Dr. Wolens assumed Perry did not have alcohol in his stomach at the time of the work accident and concluded Perry's ethanol level fell within the range where physical impairment and mental function were expected.

Perry filed a Form 101 seeking workers’ compensation benefits on August 1, 2023. On August 15, 2023, Safe Zone filed a Form 111 notice of claim denial and special answer, and a Form SVE notice of safety violation, alleging Perry's claim was barred because he was voluntarily intoxicated and had violated KRS ¹ 189.570 by failing to cross the road in a safe and legal manner. Alternatively, Safe Zone argued any award Perry might receive should be reduced by fifteen percent pursuant to KRS 342.165(1) for failing to follow his employer's orders or safety policies.

The ALJ conducted a Benefit Review Conference on December 11, 2023, at which the parties identified the contested issues as to work-relatedness and causation on the basis of voluntary intoxication and safety violations, temporary total disability (“TTD”) benefits, permanent partial disability (“PPD”) benefits, permanent total disability (“PTD”) benefits, multipliers, medical benefits, and whether Perry retains the physical capacity to return to the type of work performed at the time of injury. On April 16, 2024, the ALJ issued an Opinion, Award, and Order finding Perry sustained compensable work-related injuries in the accident. The ALJ rejected Safe Zone's argument that Perry's claim was barred because of voluntary intoxication and that his claim should be barred or reduced by fifteen percent for crossing the road in an illegal manner.

The ALJ determined Perry's average weekly wage at the time of the accident was $569.55 and awarded TTD benefits at the rate of $379.70 from March 9, 2023, through October 15, 2023, based upon Dr. Fadel's finding of MMI. The ALJ also awarded PPD benefits based upon the eleven percent impairment rating assessed by Dr. Fadel, and she found Perry did not retain the physical capacity to return to his pre-injury work. The ALJ additionally awarded medical benefits pursuant to KRS 342.020 for treatment of his left lower extremity and declined to award PTD benefits.

Safe Zone filed a petition for reconsideration, which the ALJ denied in an order entered on May 10, 2024. On appeal, the Board rejected Safe Zone's arguments on work-relatedness, voluntary intoxication, and safety violations, and affirmed the ALJ on these issues. However, the Board also remanded to the ALJ for the limited purpose of providing the calculations she utilized for the award of PPD benefits, including the application of any multipliers contained in KRS 342.730(1)(c)1. The Court of Appeals affirmed the decision of the Board. This appeal followed.

LAW AND ANALYSIS

A. Standard of Review

“An appellate court reviews questions of law and the application of law to facts under the de novo standard.” Lexington Fayette Urb. Cnty. Gov't v. Gosper, 671 S.W.3d 184, 199 (Ky. 2023). But as to questions of fact, the standard of review is whether the finding was “clearly erroneous,” meaning “unreasonable under the evidence presented.” Letcher Cnty. Bd. of Educ. v. Hall, 576 S.W.3d 123, 126 (Ky. 2019).

When the sufficiency of evidence is contested on appeal, the test for whether the ALJ's decision is clearly erroneous depends on whether the decision favors the party with the burden of proof or goes against the party with the burden of proof. Gosper, 671 S.W.3d at 199. We explained the differing tests as follows:

When the decision of the fact-finder favors the person with the burden of proof, his only burden on appeal is to show that there was some evidence of substance to support the finding, meaning evidence which would permit a fact-finder to reasonably find as it did.

If the fact-finder finds against the person with the burden of proof, his burden on appeal is infinitely greater. It is of no avail in such a case to show that there was some evidence of substance which would have justified a finding in his favor. He must show that the evidence was such that the finding against him was unreasonable because the finding cannot be labeled “clearly erroneous” if it reasonably could have been made.

Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986). Logically, a factual finding may not be deemed “clearly erroneous” if supported by substantial evidence of record—that is, substantial evidence compels affirmation. Whittaker v. Rowland, 998 S.W.2d 479, 481-82 (Ky. 1999). “In short, appellate courts may not second-guess or disturb discretionary decisions of an ALJ unless those decisions amount to an abuse of discretion.” Bowerman v. Black Equip. Co., 297 S.W.3d 858, 866 (Ky. App. 2009).

Final decisions of the Court of Appeals in a workers’ compensation proceeding may be appealed to this Court as a matter of right under Section 115 of the Kentucky Constitution. Vessels ex rel. Vessels v. Brown-Forman Distillers Corp., 793 S.W.2d 795, 798 (Ky. 1990). RAP ² 49(K) specifies further review in this Court “shall be prosecuted in accordance with the rules generally applicable to other appeals pursuant to RAP 30, 31, 32 and 60.” While the right of appeal to this Court is constitutionally mandated, the scope of our review is generally limited to the determination of “new or novel questions of statutory construction, or to reconsider precedent when such appears necessary, or to review a question of constitutional magnitude.” W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 688 (Ky. 1992). As such, this Court will not simply “third guess” the decisions of the Board and the Court of Appeals upon the same evidence. Id.

B. Current Version of KRS 342.610(4) Excludes Alcohol Use

Safe Zone first argues the Court of Appeals erred by interpreting KRS 342.610(4) to exclude alcohol use. We disagree.

Enacted in 2018, the current version of KRS 342.610(4) creates a presumption that detectable levels of certain voluntarily ingested substances will bar recovery for work-related injuries and states as follows:

If an employee voluntarily introduced an illegal, nonprescribed substance or substances or a prescribed substance or substances in amounts in excess of prescribed amounts into his or her body detected in the blood, as measured by a scientifically reliable test, that could cause a disturbance of mental or physical capacities, it shall be presumed that the illegal, nonprescribed substance or substances or the prescribed substance or substances in amounts in excess of prescribed amounts caused the injury, occupational disease, or death of the employee and liability for compensation shall not apply to the injury, occupational disease, or death to the employee.

(Emphasis added).

Prior to 2018, KRS 342.610(3) relieved an employer from liability when a worker's injury was proximately caused by voluntary intoxication and provided, “[l]iability for compensation shall not apply where injury, occupational disease, or death to the employee was proximately caused primarily by voluntary intoxication as defined in KRS 501.010, or by his or her willful intention to injure or kill himself, herself, or another.” KRS 342.610(3). KRS 501.010(4) defines “voluntary intoxication” as “intoxication caused by substances which the defendant knowingly introduces into his body, the tendency of which to cause intoxication he knows or ought to know, unless he introduces them pursuant to medical advice or under such duress as would afford a defense to a charge of crime.”

Safe Zone correctly notes the pre-2018 version of KRS 342.610(3) undeniably encompassed voluntary intoxication due to alcohol use. However, in two unpublished decisions, the Court of Appeals has interpreted the present version of KRS 342.610(4) to exclude alcohol because it is neither “an illegal non-prescribed substance” nor “a prescribed substance” within the meaning of the current statutory provision. Viars v. Cumberland Millwork & Supply, Inc., No. 2021-CA-1178-WC, 2022 WL 333251, at *4 (Ky. App. Feb. 4, 2022) (“We note that KRS 342.610(4) seems to omit alcohol.”); MMJ Masonry, Inc. v. Silva, No. 2025-CA-0164-WC, 2025 WL 2679624, at *3 (Ky. App. Sept. 19, 2025) (“As alcohol is neither a prescribed nor an illegal substance, it does not fit within the purview of KRS 342.610(4).”).

In the present matter, the Court of Appeals also interpreted KRS 342.610(4) to exclude alcohol intoxication, relying heavily on MMJ Masonry and quoting from the decision at length. Safe Zone v. Perry, No. 2024-CA-1299-WC, 2026 WL 627373, at *3-4 (Ky. App. Mar. 6, 2026). We agree the reasoning of MMJ Masonry is sound and likewise adopt the Court of Appeals’ analysis in this matter below as our own, edited with the facts of the instant appeal as follows:

Since the passage of House Bill 2 in 2018, “voluntary intoxication” is defined in KRS 342.610(4), which removed all references to KRS 501.010[.]

Therefore, under the statutory language of KRS 342.610(4) in effect at the time of [Perry's] injury, “voluntary intoxication” encompasses only “illegal, nonprescribed substance or substances” or “prescribed substance or substances in amounts in excess of prescribed amounts[.]” As alcohol is neither a prescribed nor an illegal substance, it does not fit within the purview of KRS 342.610(4). “[W]here a statute is amended or re-enacted in different language, it will not be presumed that the difference between the two statutes was due to oversight or inadvertence on the part of the Legislature. On the contrary, it will be presumed that the language was intentionally changed for the purpose of effecting a change in the law itself.” City of Somerset v. Bell, 156 S.W.3d 321, 326 (Ky. App. 2005) (quoting Eversole v. Eversole, [169 Ky. 793] 185 S.W. 487, 489 (Ky. 1916))․

The fact remains that no provision within KRS 342.610 addresses intoxication through the consumption of alcohol․

[MMJ Masonry, 2025 WL 2679624,] at *4.

Additionally, we note and quote a portion of the concurring opinion of former Workers’ Compensation ALJ, now Court of Appeals Judge Allison Jones, who wrote “separately to suggest that the General Assembly may wish to reexamine its most recent revision of KRS 342.610(4) [referring to the statute's 2018 version] in light of the outcome of this case.” Id. at *4 (Jones, A., J., concurring). Judge Jones makes the valid point that “when an employee appears for work in a severely compromised state, climbs scaffolding while intoxicated, and is injured as a result, common sense suggests that workers’ compensation should not reward such recklessness.” Id. This Court knows, however, that courts do not sit as a superlegislature. In Judge Jones's words:

The temptation is to strain the current statutory text to reach that outcome [desired by the employer]. But doing so would be rewriting, not interpreting. The language says what it says, and our role is to apply it. If the result here is unsatisfactory as a matter of policy, the remedy lies not with the courts but with the General Assembly.

Id.

The current Legislative Session again provides an opportunity to consider revising KRS 342.610(4). In fact, we judicially notice that on January 15, 2026, several legislators introduced House Bills 402 and 403, both of which propose amending KRS 342.610(4). However, neither bill adds alcohol back to the statute as an intoxicant, the consumption of which by an employee who is injured would absolve the employer of workers’ compensation liability. For the present, the plain meaning of the Kentucky Legislature's words permits a worker to seek benefits even if he or she is under the influence of alcohol at the time of injury.

Safe Zone, 2026 WL 627373, at *4.

The Court of Appeals correctly applied the plain, ordinary meaning of the current version of KRS 342.610(4). In opposition to the plain language reading of the text, Safe Zone vehemently contends the intent of KRS 342.610(4) is to address voluntary intoxication due to substances “that could cause a disturbance of mental or physical capacities” and cites various interpretative principles to support its assertion that the lack of a specific reference to alcohol does not compel the exclusion of same from the scope of the statute.

Safe Zone's reading of the statute is untenable, however, because it would have this Court ignore the legislature's removal of the reference to the definition of voluntary intoxication under KRS 501.010 as well as the deliberate choice to modify the word “substances” with the words “illegal” and “prescribed.” Just as the rules of interpretation do not permit a court “to insert words or add a provision [to an unambiguous statute] even if it may be just or desirable to do so[,]” Lee v. Dept. of Corrections, 610 S.W.3d 254, 262 (Ky. 2020), there is no interpretative principle which

require[s] us to utterly ignore the plain ․ meaning of words in a statute. In fact, [t]he plain meaning of the statutory language is presumed to be what the legislature intended, and if the meaning is plain, then the court cannot base its interpretation on any other method or source. We ascertain the intention of the legislature from words used in enacting statutes rather than surmising what may have been intended but was not expressed. In other words, we assume that the [Legislature] meant exactly what it said, and said exactly what it meant. Only when [it] would produce an injustice or ridiculous result should we ignore the plain meaning of a statute.

Revenue Cabinet v. O'Daniel, 153 S.W.3d 815, 819 (Ky. 2005) (internal quotations and citations omitted).

Neither is this Court willing to accept Safe Zone's argument that a plain language interpretation of KRS 342.610(4) will lead to absurd results or that the statute is otherwise based on an arbitrary distinction between alcohol and illegal or prescription drug abuse. An absurd result is tantamount to “a wholly unreasonable conclusion[,]” Bailey v. Reeves, 662 S.W.2d 832, 834 (Ky. 1984), and “also against general common sense.” Hill v. Thompson, 297 S.W.3d 892, 896 (Ky. App. 2009).

We acknowledge that, at first blush, a distinction between voluntary intoxication due to alcohol and illegal or prescription drugs appears to be “a needless refinement.” State v. Steimel, 155 N.H. 141, 921 A.2d 378, 385 (2007) (quoting People v. Ritchie, 130 Cal.App.3d 455, 459, 181 Cal.Rptr. 773 (1982)). However, in certain legal contexts, such a distinction may be rationally justified. For example, an employer may punish illegal drug use in the workplace more severely than alcohol use. Copeland v. Philadelphia Police Dep't, 840 F.2d 1139, 1147 (3d Cir. 1988) (“[O]ne group commits a criminal offense merely by possessing or using illegal drugs whereas the second group engages in an activity—the consumption of alcohol—that is not per se unlawful.”). Similarly, the Americans with Disabilities Act, 42 U.S.C.³ § 12114(a) “treats drug addiction and alcoholism differently, and an alcoholic is not automatically excluded from ADA protection because of current use of alcohol,” while current illegal drug use categorically prohibits an individual from the benefits of such coverage. Mararri v. WCI Steel, Inc., 130 F.3d 1180, 1185 (6th Cir. 1997).

In light of the foregoing authorities, we cannot conclude the exclusion of alcohol from the scope of KRS 342.610(4) is absurd, unreasonable, or unjust. Although Safe Zone “and others for that matter—may question the efficacy and wisdom of [the legislature's] approach [to voluntary intoxication in the workers’ compensation context] ․ that is a policy decision that our legislature can make by duly-passed statute and neither the executive nor the judiciary can reject it outright on ‘best practices’ grounds.” Cameron v. Beshear, 628 S.W.3d 61, 79 (Ky. 2021) (Hughes, J., concurring).

C. Worker's Award Was Not Subject to Deduction For Safety Violation

For its second and final contention of error, Safe Zone argues the Court of Appeals erred by failing to subject Perry's award to a fifteen percent penalty pursuant to KRS 342.165(1). In support of its claim, Safe Zone contends Perry violated KRS 189.570 by crossing the road in an illegal and unsafe manner. We disagree.

KRS 342.165(1) provides as follows:

If an accident is caused in any degree by the intentional failure of the employer to comply with any specific statute or lawful administrative regulation made thereunder, communicated to the employer and relative to installation or maintenance of safety appliances or methods, the compensation for which the employer would otherwise have been liable under this chapter shall be increased thirty percent (30%) in the amount of each payment. If an accident is caused in any degree by the intentional failure of the employee to use any safety appliance furnished by the employer or to obey any lawful and reasonable order or administrative regulation of the commissioner or the employer for the safety of employees or the public, the compensation for which the employer would otherwise have been liable under this chapter shall be decreased fifteen percent (15%) in the amount of each payment.

“[T]he goal of the penalty provision contained in KRS 342.165 is to promote workplace safety by encouraging workers and employers to follow safety rules and regulations.” Apex Min. v. Blankenship, 918 S.W.2d 225, 228 (Ky. 1996). As the party seeking to reduce the injured worker's award pursuant to KRS 342.165(1), Safe Zone had the burden to prove its affirmative defense. See Whittaker v. Hardin, 32 S.W.3d 497, 499 (Ky. 2000). Because Safe Zone failed to carry its burden, the question on appeal is whether the evidence compels a different result. Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky. App. 1984). “Compelling evidence” has been defined as evidence so overwhelming no reasonable person could reach the same conclusion as the ALJ. REO Mechanical v. Barnes, 691 S.W.2d 224, 226 (Ky. App. 1985).

To establish Perry's commission of a safety violation, Safe Zone relies upon KRS 189.570(16), which prohibits pedestrians from being upon a highway while under the influence of alcohol “to a degree which renders himself a hazard,” and further claims the unrebutted medical evidence established impairment sufficient to render Perry a hazard. On the contrary, we do not view the evidence of record to compel a finding in Safe Zone's favor.

The record reflects that the level of ethanol in Perry's bloodstream was well below the 80 mg/dL legal limit for operating an automobile, and there is no evidence he had consumed alcohol during the workday. At the time of the accident, he was wearing his personal protective equipment, including the reflective clothing required by Safe Zone. Perry testified he looked and saw no approaching traffic prior to attempting to return to the worksite. He further testified the vehicle which struck him was not operating its headlights. In addition, the police report stated the driver of the vehicle that struck Perry was inattentive and had admitted to speeding in excess of 10 to 15 mph over the posted 40 mph limit.

We further observe that other evidence on Perry's intoxication level was conflicting. Although Dr. Wolens opined Perry's ethanol level was within the range where physical impairment and mental function could be expected, the responding officer neither made any reference to Perry's alleged intoxication following an investigation nor did he record any behavior on Perry's part which could have contributed to the accident. The ALJ, as fact-finder, was not persuaded by Safe Zone's proof on Perry's level of intoxication relative to the requirements of KRS 189.570(16), and we perceive no basis to disturb her findings on this issue.⁴ “[A]n ALJ has sole discretion to decide whom and what to believe, and may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same adversary party's total proof.” Gosper, 671 S.W.3d at 198 (quoting Bowerman, 297 S.W.3d at 866). It is not the province of a reviewing court to substitute its judgment for that of the ALJ as to the weight of evidence on questions of fact. Id. at 199.

CONCLUSION

For the foregoing reasons, the decision of the Court of Appeals is hereby affirmed.

FOOTNOTES

1.   Kentucky Revised Statutes.

2.   Kentucky Rules of Appellate Procedure.

3.   United States Code.

4.   Having determined the conflicting evidence did not compel a finding in Safe Zone's favor on the issue of whether Perry violated KRS 189.570(16), we decline to separately address its argument that the Court of Appeals erred by failing to place the burden on Perry to rebut its evidence of intoxication and hazardous behavior.

OPINION OF THE COURT BY JUSTICE NICKELL

All sitting. All concur.