REC E I v E D a HHS a" ; u : J P 8 2320 CLERK or 0 T S O. ECOUu—— b I .:|‘ ”DRE“ : COURT éuprrmr (Court of 532nm v No 2020 SC 275 CHERYL GATES Apps/hm v On Appeal from Court of Appeals Nos 2018-CA 1027 2018 CA 1114 1&0 GER, at 41 Apps/lee: APPELLEE BRIEF OF ATTORNEY GENERAL DANIEL CAMERON Res ec ys b rtedb / 3% S CHAD MEREDITH (No 92138) Jaw/tater General MATl‘I-IEWF KUHN (No 94241) Repay So/zatar General BRETT R NOLAN (No 95617) Spear! Dagmar: Comm] Office of the Attorney General 700 Capital Avenue Smte 118 Frankfort, Kentucky 40601 (502) 696-5300 CoumelforAlTomgI General Cameron Ceruficate of Service I certrfy that a copy of this bnef was served on October 8, 2020, by first class mail to Jeffrey A Roberts 509 Main Street, Murray Kentucky 42071 Sharlott Higdon P O Box 995 Paducah Kentucky 42002, Robert L Smasher, Workers’ Compensation Board, Department of Workers’ Claims, 500 Mero Street, Third Floor, Frankfort, Kentucky 40601, Hon Jeff V Layson, Administrative Law Judge Department of Workers Clams 500 Mere Street, Third Floor Frankfort, Kentucky 40601 and Clerk, Kentucky Court of Appeals 360 Democrat Dnve, F entuc 601( o a!“ i 1/ CouflrelfirAttomgy General Camemtz
Transcript
RECE IvEDa HHSa" ; u : J
P 8 2320CLERK or 0 T
S O. ECOUu—— b I .:|‘
”DRE“ : COURT
éuprrmr (Court of 532nm vNo 2020 SC 275
CHERYL GATES Apps/hm
v On Appeal from Court of AppealsNos 2018-CA 1027 2018 CA 1114
1&0GER, at 41 Apps/lee:
APPELLEE BRIEF OF ATTORNEYGENERAL DANIEL CAMERON
Res ec ys b rtedb
/ 3%S CHAD MEREDITH (No 92138)Jaw/tater General
MATl‘I-IEWF KUHN (No 94241)Repay So/zatar General
BRETT R NOLAN (No 95617)Spear!Dagmar: Comm]
Office of the Attorney General700 Capital Avenue Smte 118Frankfort, Kentucky 40601(502) 696-5300
CoumelforAlTomgI General Cameron
Ceruficate of Service
I certrfy that a copy of this bnef was served on October 8, 2020, by first class mail to JeffreyA Roberts 509 Main Street, Murray Kentucky 42071 Sharlott Higdon P O Box 995 PaducahKentucky 42002, Robert L Smasher, Workers’ Compensation Board, Department ofWorkers’ Claims,
500 Mero Street, Third Floor, Frankfort, Kentucky 40601, Hon Jeff V Layson, Administrative LawJudge Department ofWorkers Clams 500 Mere Street, Third Floor Frankfort, Kentucky 40601 andClerk, Kentucky Court ofAppeals 360 Democrat Dnve, F entuc 601(
o a!“ i 1/CouflrelfirAttomgy General Camemtz
STATEMENT CONCERNING ORALARGUMENT
There are a dozen 01 so appeals in this Court raismg the constitutionality
of KRS 342 730(4) four of which are fully briefed or nearly fully briefed
Doizatban v Town 2’? Comfy! Food Mart, No 2020 SC 24 (Ky); Adam; o Excel
Mzizmg, LLC No 2020 SC 137 (Ky) Dowel! 22 Matt/yew: Conframng, No 2020
SC 170 (Ky) Bean 9 Col/tor Elev Sm; No 2020 SC 277 (Ky) Because the
Court’s resolution of those appeals will almost certainly resolve this matter,
Attorney General Cameron does not request oral argument in this appeal
Parkern Weaver C91 Coal LLC (Doflkz Mme) 529 S W 3d 759 (Ky 2017)11 12 14 18 20
Ballon 1) Enter Mznzng Co LLC 512 S W 3d 724 (Ky 2017) 12
Cal/away Cy; Shaggy”: Dep f a Wooda/l S W 3d 2020 WL 5806818 (KySept 24 2020) 13
Corninmzwea/tb a Howard 969 S W2d 700 (Ky 1998) 13 20
SteueizLee Eater; I) Vamey 36 S W 3d 391 (Ky 2000) 13
O’Bglafl a Z2]; Eagbrm No 2018 CA 1284 2020 WL2298392 (Ky AppMay 8 2020) appeal doaéez‘eel No 2020 SC 262 (Ky) 14
Donatbaa 22 T0121]: 69’ Comm) FoodMart N0 2018 CA 1371 2019 WL6998653 (Ky App Dec 20 2019) @pealdaeleetea’ No 2020 SC 24 (Ky) 14
Hellerv Doe é}! Doe 509 U S 312 (1993) 16
Two/Pew Cg) Coal 22 Feline; 582 S W 3d 42 (Ky 2019) 16
Mathew: a Dzaz, 426 U S 67 (1976) 16
Vmofl Mmmg, he 22 Gardaer 364 S W 3d 455 (Ky 2011) 16 17 18
Payne 21 Teaaeme 501 U S 808 (1991) 19
Helmet 0 TM P022267 Eaters Inc No 2019 CA 1757 2020 WL 2095875 (KyApp May 1 2020) appeal doe/éeted No 2020 SC 236 (Ky) 19
II KRS 342 730(4) is not special legislation 21
KRS 342 730 21 22
Galloway C9! Sawfly D91) 2‘ a Woodall S W 3d 2020 WL 5806818 (KySept 24 2020) 21 22
Creme 0 Caldwell 186 S W 648 (Ky 1916) 21
KRS 342 750 21
Bean 1) Col/2e; Elee Sen) No 2020 CA 321 2020 WL2603597 (Ky AppMay 22 2020) 22
Bowl/Jail a Team «’7‘ Cay/My Foea’Man‘ N0 2018 CA 1371 2019 WL6998653 (Ky App Dec 20 2019) appealdeeketea’ No 2020 SC 24 (Ky) 22
Um» ofCumberland: a Peary/backer 308 S W 3d 668 (Ky 2010) 22
CONCLUSION 22
KRS 342 730 22
1V
COUNTERSTATEMENT OF THE CASE1
This workers’ compensation appeal challenges the constitutionality of
KRS 342 730(4)—a 2018 statute that sets the outer age limit beyond which an
1ndiv1dual cannot receive workers’ compensation Income benefits Under the
statute, an 1njured worker cannot receive workers” compensanon income benefits
after reaching the age of70 or four years after his or her mjury, whichever ls later
Id Cheryl Gates, who was 66 years old at the nine of her work related injury 1n
2015, argues that applying this statute to her Violates the state and federal
constitutions
This IS not the first nme that KRS 342 730(4) has been called into
question This statute and its predecessors have been challenged in court many
times, several ofwhich are relevant here
In Parker a Webster Coma) Coal LLC (Dofzkz Mme) 529 S W 3d 759 (Ky
2017), this Court invalidated the prewous versron of the statute Id at 770 That
ver51on, which had been in effect since 1996, stated “All income benefits payable
pursuant to this chapter shall terminate as of the date upon which the employee
qualifies for normal old age Seoul Securrty renrement benefits or two (2)
years after the employee’s injury or last exposure, whichever last occurs ” Id at
766 This prov151on therefore made qualifying for normal old age Soc1al Secunty
1 The Attorney General does not accept Ms Cates’s statement of the case SeeCR 76 12(4) (d) (iii)
1
retirement benefits one ofthe triggers for endingworkers’ compensation income
benefits This was designed to prevent “duplication of benefits” (2 e , receivmg
workers’ compensation income benefits and normal old age Soc1al Security
retirement benefits at the same time) and to save money for the workers’
compensation system See 2d at 768 The Court found this prowsron to be
constitutionally infirm because “it treats injured older workers who qualify for
normal old age Social Security retirement benefits differently than it treats
injured older workers who do not qualify ” Id In this regard, the Court noted
that Kentucky teachers are not eligible for normal old age Social Security
retirement benefits, but instead receive a public pensron Id The Court also
concluded that the statute was unconstitutional spec1al legislation under Sections
59 and 60 of Kentucky’s Constitution because it ‘ favors those who W111 not
qualify for normal old age Soc1al Security retirement while discriminating against
those who do qualify ” Id at 770
In response to Parker, the General Assembly replaced the invalidated
statute Wlth the current versron of KRS 342 730(4), which no 10nger makes
qualifying for normal old age Soc1al Security retirement benefits one ofthe bases
for ending workers’ compensation income benefits Instead, the new statute pegs
continuing eligibility for workers’ compensation income benefits to age The
current statute, enacted as part of 2018 House Bill 2, reads
2
All income benefits payable pursuant to this chapter shall terminateas of the date upon which the employee reaches the age of seventy(70), or four (4) years after the employee’s injury or last exposure,whichever last occurs
2018 Ky Acts Ch 40 (2018 House Bill 2) § 13(4) The General Assembly
expressly made this prov1510n retroactive to pending workms’ compensation
matters Id § 20(3)
This new statute, it shOuId be emphasized, is more favorable to injured
workers than the prior statute invalidated in Parker As summarized above, the
old statute cut offworkers’ compensation income benefits once aworker became
eligible for normal old age Socml Security retirement: benefits, which occurs
sometime between the age of 65 and 67 depending on the indiVidual’s date of
birth,2 or two years after the worker’s injury, whichever is later The new statute,
by contrast, ends workers’ compensation income benefits at age 70 or four years
after the worker’s injury, whichever is later The new statute therefore prOVides
injured workers With several more years ofbenefits than the prev10us statute did
And by making the new statute retroactive to pending claims, the General
Assembly ensured that there would be as small of a statutory gap as pOSSible
between Parker, which became final on November 2, 2017, and the new statute,
which became effective onjuly 14 2018
2 Soaal Security Administration, Full Retirement Age, aaazlab/e at
https //www ssa gov/planners/retire/retirecharthtml (last ViSited Oct 5 2020)
42 U S C § 416(1)
3
A workers’ compensation claimant nevertheless challenged the new
statute on the ba51s that the Legislative Research Commission did not codify the
prOVis1on making KRS 342 730(4) retroactive 1n the Kentucky ReVised Statutes
The Court unanimously rejected this argument in Holam I) Suzzlghrd, 581 S W 3d
37 (Ky 2019), holding that “the newly enacted amendment applies retroactively”
because “the legislature has made a declaration concerning [its] retroactiv1ty ” Id
at 44 The Court however noted that the constitutionality of [KRS 342 730(4)]
IS not at issue before us in this case ” Id
Thus began another round of litigation about KRS 342 730(4) This time
courts are addressmg the question left open in H0167”! Is KRS 342 730(4)
constitutional?
This is where Ms Cates enters the picture She injured her shoulder On
August 15, 2015 (well before Parker came down) while working for Appellee
Kroger On February 9, 2018, an administrative law judge found that Ms Cates’s
Injury “resulted in a permanent impairment mung of 16 percent ” nger a Cater,
Nos 2018 CA 1027 2018 CA 1114 2020WL2511433 at*1 (Ky App May 15
2020) (attached at Tab 1) As to the duration of Ms Cates s benefits the
administrative law judge concluded that, in light of Par/(ear, “the ver510n of KRS
4
342 730(4) effective April 4 1994 controlled 3 Id The Workers Compensation
Board affirmed Id
Both Ms Cates and Kroger filed a petitiOn for rev1ew Wlth the Court of
Appeals, which held that, under Hat/am “we are compelled to conclude that the
amended verSIOn of KRS 342 730(4) retroactively applies to Cates claim as the
Legislature expressly prOVided therefor ” Id at >|<2 The Court of Appeals also
rejected Ms Cates’s argument that KRS 342 730(4) is unconstitutional It
reasoned that the “prevention of duplication of benefits constitutes a rational
bas1s for treating injured elderly claimants differently from injured younger
claimants in the amended KRS 342 730(4) Id at *4 The Court ofAppeals also
rejected Ms Cates’s special legislation argument Id
Ms Cates filed a notice of appeal to this Court See CR 76 25(12) In her
notice of appeal, she purported to ‘add]] the Attorney General “as a party Since
the constitutionality of the statute is at issue in this claim ”4 Upon recemng notice
3 For claimants younger than age 65 at the time of their injunes, the 1994 versionof KRS 342 730(4) requ1red an annual ten percent reduction in workers’compensation income benefits beginning at age 65 and continuing until age 70See ”7);!” a Ibo/d I725 969 SW2d 695 696 97 (Ky 1998) (upholding the 1994vers1on of the statute)4 This was improper Under Kentucky law “[a]11 that is required is the AttorneyGeneral be given the @pon‘umg to intervene and be heard on the matter ”Commofiwealz‘la a Ham/ton 411 S W 3d 741 751 (Ky 2013) (emphaSis in original)Rather than name the Attorney General as an appellee in her notice of appeal,Ms Cates should have served her notice of appeal on the Attorney General and“spec1f[1ed] the challenged statute and the nature of the alleged constitutionaldefect KRS 418 075(2) At that point, the ball would have been in the Attorney
5
of Ms Cates’s constttuttonal challenge the Attorney General filed a motion to
enter appearances In this appeal, which the Court granted
ARGUMENT
KRS 342 730(4) comes to this Court with a “strong presumptton of
constitutlonality See [Wynn 0 [bold Inc 969 SW2d 695 696 (Ky 1998) This
means that a “Violation of the Constltutton must be clear, complete and
unmistakable In order to find the law unconshtutional ’ K} Indm U121 Customary,
Inc n K} UM: Co 983 S W2d 493 499 (Ky 1998) The Court must resolve any
doubt 1n favor of consututlonality rather than unconsuruuonality ” Tera/Perry
Cy C0412) Fem” 582 S W 3d 42 46 (Ky 2019) (citation omltted)
This Court ls not the first to pass on the constitutionality of the current
ver51on ofKRS 342 730(4) This issue has been exhaustlvely lingated tn the Court
of Appeals That court has repeatedly found the statute to be constitutional
C959} 0 McCreagz C91 Farm! C! No 2020 CA 88 2020 WL 5742856 at *1 *3
(Ky App Sept 25 2020) (attached at Tab 2) ann n Bag/m Paradm anzz‘nre
Inc No 2020 CA 201 2020 WL 5083424 at *2 *5 (Ky App Aug 28 2020)
appeal docketed No 2020 CA 648 (Ky) (attached at Tab 3) Dame/Z n D4101 No
2020 CA 451 2020 WL 4507352 at *2 *6 (Ky App July 10 2020) appeal
General’s court to decide how to proceed However, because the AttorneyGeneral ulttmately chose to exerc15e his discretlon to partlctpate In this appeal,Ms Cates’s error proved harmless
6
doekez‘ea’ No 2020 SC 364 (Ky) (attached at Tab 4) Mal/2m a Pawn/yer: Pam/mg
Co No 2018 CA 644 2020 WL 3605844 at *3 *4 (Ky App June 26 2020)
appeal doeéez‘ea' No 2020 SC 341 (Ky) (attached at Tab 5) Many a Paeear N0
2020 CA 440 2020 WL 3401145 at *1 *3 (Ky App June 19 2020) appeal
acceded No 2020 SC 328 (Ky) (attached at Tab 6) Beat: 0 Collzer Elee fem No
2020 CA 321 2020 WL 2603597 at *4—*11 (Ky App May 22 2020) appeal
doekez‘ea’ No 2020 SC 277 (Ky) (attached at Tab 7) 0739a” 12 Zzp Exprers No
2018 CA 1284 2020 WL 2298392 at *3 *5 (Ky App May 8 2020) appeal
doaéez‘ed No 2020 SC 262 (Ky) (attached at Tab 8) FordMoz‘or Co a Pzekelz‘ Nos
2018 CA 415 2018 CA 551 2020 WL 2298434 at *2 *4 (Ky App May 8
2020) appeal doe/(2am No 2020 SC 218 (Ky) (attached at Tab 9) Heltoa a 7M
Power; Eatery Inc No 2019 CA 1757 2020 WL 2095875 at *2 *3 (Ky App
May 1 2020) appeal doekez‘ed No 2020 SC 236 (Ky) (attached at Tab 10) Adams
12 Ewe/Mafia; LLC N0 2018 CA 925 2020 WL 864129 at *2 *3 (Ky App
Feb 21 2020) appeal doaéez‘ed No 2020 SC 137 (Ky) (attached at Tab 11)
Donal/ma a Team @CMMIUI FoodMan‘ No 2018 CA 1371 2019 WL 6998653 at
*3 (Ky App Dec 20 2019) appeal doe/email No 2020 SC 24 (Ky) (attached at
Tab 12) A11 told nearly every judge on the Court ofAppeals has concluded that
KRS 342 730(4) 18 c0ns11tutlonal No judge has said otherwise
Against this unanmmus consensus, Ms Cates clams that KRS 342 730(4)
wolates the equal protecflon provmons 1n the Kentucky and federal
7
constitutions and the special legislation protections tn Kentucky’s Constitut10n
[Br at 4—21] For the reasons that follow, the Court should reject Ms Cates’s
arguments and uphold KRS 342 730(4) as constitutional
I KRS 342 730 (4) does not create an unconstitutional classrfication
Ms Cates argues that KRS 342 730(4) unconstitutionally treats similarly
Situated people differently As she puts it, KRS 342 730(4) “suffers from the
same or similar defects” as the ver31on of the statute found unconstitutional in
Parker [Bi at 6] Her equal protection argument should be rejected
To put Ms Cates’s arguments in context, it’s helpful to briefly trace the
history of KRS 342 730(4) The statute invalidated in Parker arose from a 1996
special se351on of the General Assembly called by Governor Patton This speCial
sess1on resulted in a package of workers’ compensaiion reforms designed “to
curtail the estimated cost to employers of one billion dollars per year ”James M
Kemp & Laurie G Kemp, Kentucky Worker-3’ Compemaizwz Law Update IssuerFamg
Employers, Employeer, Medzm/ Prowo’err, Insurers and Praetmoflerr or Home lel 1
Commuter to Evolve 26 N Ky L Rev 67 67 (1999)
Six years after this legislative overhaul, this Court rejected an equal
protection challenge to the 1996 version of KRS 342 730(4) McDowell o Jackson
571er RECC 84 S W 3d 71 74—77 (Ky 2002) Applying ranonal basrs rewew
McDowell explained that seventeen states and the District of Columbia offset
then workers’ compensation benefits against soc1al secur1ty benefits in some
8
manner and the constitutionality of these prOViSions has been largely upheld
against equal protection challenges ” Id at 75 (Citations omitted) The Court also
noted that, in chbardnm a Bela/yer, 404 U S 78 (1971), the United States Supreme
Court rejected an equal protection challenge to a federal statute that “prov1des
an offset for social security disability benefits against state workers’
compensation benefits ” McDowell, 84 S W 3d at 75 (emphaSis omitted) McDowell
could “perceive no distinction between an offset of state workers’ compensation
benefits against Soc1al Security disability benefits and a ieverse offset of soc1al
security retirement benefits against state workers’ compensation benefits ” Id at
76 (internal Citation omitted)
McDowell also found support in the Court’s prev10us decis1on to uphold
the constitutionality of the 1994 version of KRS 342 730(4), which required “an
annual 10% reduction in income benefits beginning at age 65 and continuing
through age 70 ” Id As McDowellrecounted, in WM 2} Ibold, Inc, the Court held
that ‘avotding duplication of income benefits and reducing the overall cost of
maintaining the workers’ compensation system, thereby improvtng the economic
climate for all Citizens of the state, prowde[s] a rational ba31s for any perceived
discnrninatlon in the statute Id (Citing Wm, 969 S W2d at 697); we alto Lem,
Inc a Crabz‘ree 966 S W 2d 951 955 (1998) Edward; I} Inmmlle Ladder 957
S W 2d 290 296 (Ky App 1997) McDowell concluded that [t]he same rationale
9
applies to this challenge to the 1996 version of KRS 342 730(4) 5 McDowell 84
S W 3d at 76
After McDowell, the Court again cons1dered the constitutionality of KRS
342 730(4) in Kat/J a Hippie Plantar 178 S W 3d 463 (Ky 2005) The claimant
there tried to distingUish McDowell on the bass that it did not apply to an
indiv1dual With a permanent partial disability Id at 465 In rejecting this
distinction, K6227] found that “[t]he pnnc1ple of terminating workers’
compensation benefits when workers become eligible for normal old age soc1al
security benefits is not new to Kentucky Nor is the concept of coordinating
different forms ofwage loss protection or of av01ding making it more profitable
to be disabled than not Id at 468 (internal Citation omitted) The Court thus
held that [a]lthough KRS 342 730(4) discriminates against workers who are
eligible for both workers’ compensation disability benefits and normal soc1al
security retirement benefits, it advances a legitimate state interest in coordinating
forms of income replacement benefits and av01ding a duplication of benefits ”
Id In other words ‘KRS 342 730(4) is rationally related to a legitimate state
5 McDowell also noted that the 1994 version of KRS 342 730(4) was not the firstKentucky statute to offset workers’ compensation income benefits uponeligibility for normal old age Seeial Security retirement benefits McDowell, 84S W 3d at 76 A 1980 statute did this as well zd and was upheld by the Court ofAppeals in Brooks 11 Island Cree/é Coal C0 678 S W 2d 791 792 (Ky App 1984)
10
interest” and “1s constitutional when applied to e1ther total or partial disability
awards ” Id
This was the state of the law when Parker invalidated the 1996 statute
Importantly, Parker did not overrule the reasoning in McDowell or Kat/2 To the
contrary, Parker spec1fically reaffirmed that there are in fact rational bases for
treating injured older workers differently than their younger counterparts
The rational bases for treating younger and older workersdifferently is (1) It prevents duplication ofbenefits; and (2) it resultsin sayings for the workers’ compensation system Undoabfea'y 50% ofthese are mama] bases for treating those who, based on their age, have
qualified for normal Social Security retirement benefits differentlyfrom those who, based on their age, have yet to do so
Parker, 529 S W 3d at 768 (empha51s added) In other words, Parker was careful
to leave untouched the rationale from McDowell and Kerr/9 The Parker dissenters
agreed that the reasoning of McDowell and Keri/J survived Parker Id at 771 72
Mnton, C] , concurring in part and dissenting In part) (“The majonty opinion
1n fact agrees that the prevention of duplicate benefits and the continued
solvency of the workers’ compensation system are mdeed rational bases for
treating those who have qualified for normal social security retirement benefits
differently from those who have yet to do so )
Instead of repudiating the rationale from McDowell and Keel/J, Parker
invalidated the 1996 ver510n of KRS 342 730(4) for a different reason “[I]he
equal protection problem wuh KRS 342 730(4),” Parker held, “is that it treats
11
injured older workers who qualify for normal old age Social Security retirement
benefits differently than it treats injured older workers who do not qualify”
Parker 529 SW3d at 768 In this regard the Court explained that Kentucky
teachers are not eligible for normal old age Social Security retirement benefits
and that, as a result, “while teachers will receive all of the workers compensation
income benefits to which they are entitled, nearly every other worker in the
Commonwealth will not ” Id The ineligibility of Kentucky teachers for normal
old age Social Secunty retirement benefits was the linchpin of Parker’s holding
Id (“The statute does prevent duplication of benefits, but only for non teachers
because, while nearly every other worker is foreclosed from receiving “duplicate
benefits,’ teachers are not ”)
This history of the 1996 ver51on of KRS 342 730(4) confirms that the
current version of the statute readily surVives scrutiny under the federal and state
equal protection clauses
Rational b21515 rev1ew governs the question of whether KRS 342 730(4)
creates an unconstitutional classification See Parker, 529 S W 3d at 767; see also
341/021 12 Eater Mmmg Co LLC 512 S W3d 724 728 29 (Ky 2017) (applying
rational b21813 rewew to a statute that cla551fied persons based upon age) “mo
comply W1tl1 federal equal protectiOn requirements, the clasmfication must be
ratiOnally related to a legitimate state interest, and to comply With Kentucky’s
equal protection requirements, the classification must be supported by a
12
‘reasonable baSIS’ or a ‘substantial and justifiable reason ’” Cal/away Cg)! 55677150!
Bop t o Woodall S W 3d 2020 WL 5806818 at *3 (Ky Sept 24 2020)
(Citation omitted) Under rational basis reView, a statute surVives scrutiny if there
merely is “any reasonably conceivable state of facts that could prOVIde a rational
bass for the claSSification ” Commonwealth 12 Howard, 969 S W 2d 700, 703 (Ky
1998) The General Assembly has no bUiden in this inquiry It “need not ‘actually
articulate at any time the purpose or rationale supporting its classflicaflon ”’ Steven
Lee Emery 1/ Vanity 36 S W 3d 391 395 (Ky 2000) (citation omitted) The C0urt
must uphold the statute even if it is based solely on “rational speculation
unsupported by ev1dence or empirical data ” Howard, 969 S W 2d at 703 (citation
omitted) Thus, for Ms Cates’s equal protection challenge to KRS 342 730(4) to
succeed, she must “negauve every conceivable basis which might support [the
statute], Whether or not the bans has a foundation in the record ” See Zuckeman
0 Boom 565 S W 3d 580 596 (Ky 2018) (Citation omitted) we alto Cal/0222591 C91
2020 WL 5806818 at *3 ( [O]ur General Assembly under the Equal Protecti0n
Clause, has great latitude to enact legislation that may appear to affect similarly
situated people differently ” (citation omitted))
Under this deferential standard, Ms Cates cannot establish that KRS
342 730(4) impermissibly discriminates based upon age This Court has
repeatedly held that treating injured older workers differently from injured
younger workers is rationally related to the legiUmate government interests of
13
preventing the duplication of benefits and saying money for the workers’
compensation system War: 969 S W 2d at 697 McDowell 84 S W 3d at 74—76
Keri/J 178 S W 3d at 468 Parker 529 S W 3d at 768 This pomt is so well
established that Parker found it ‘ [u]ndoubtedly” true that “these are rational
bases for treating those who, based on their age, have qualified for normal Soc1al
Security retirement benefits differently from those who, based on their age, have
yet to do so ” Id Ms Cates offers no valid reason to depart from these holdings
and to overrule Wm, MeDoa/ell, Kath, and Parker
Ms Cates’s assertion that the new vers1on ofKRS 342 730(4) has the same
problem as the statute invalidated in Parker cannot stand up to scrufiny As
explained above, Parker focused on the prior statute’s differential treatment of
workers based upon their eligibility for normal old age Social Security retirement
benefits and concluded that this created an unjusufiable claSSification between
Kentucky teachers and nearly everyone else See Parker, 529 S W 3d at 768; tee alto
O BUM}! 2020 WL 2298392 at *5 ( Parker did not hold that my age limitation
applied to the administration of workers’ compensation income benefits is
unconstitutional ”) By contrast, the new version of KRS 342 730(4) does not
even mention eligibility for Social Security retirement benefits, instead focusmg
on whether a claimant has reached the age of70 See Doaaz‘aarz, 2019 WL 6998653,
at *3 (“[D]1sparate treatment [under KRS 342 730(4)] is no longer linked to Soc1al
14
Security benefits ”) For this Simple reason, KRS 342 730(4) comports With
Parker
It is true that the new ver31on of KRS 342 730(4) allows injured workers
to receive workers’ compensation income benefits for a period oftime while they
also receive normal old age Soc1al Security retirement benefits As explained
above, workers become eligible for nonnal old age Social Security retirement
benefits between the age of 65 and 67, but do not lose eligibility for workers’
compensation income benefits under the new statute until, at the earliest, age 70
This means that KRS 342 730(4) eliminates the payment of some but not all
duplicative benefits But this imperfect fit is largely a function of Parka, which
made it impermiSSible for the General Assembly to class1fy mdiViduals based
upon eligibility for normal old age Soc1al Security retirement benefits The
General Assembly cannot be faulted for adopting what it Viewed as the next best
option to accomplish its policy goals
In addition, neither the federal nor the state equal protection clause
requires a perfect fit between a statute 3 means and the ends that the statute seeks
to accomplish See bicker/ma, 565 S W 3d at 596 (“[C]ourts are compelled under
rational basis rev1ew to accept a legislature’s generalizations even where there is
an imperfect fit between means and ends ” (Citation omitted» As the United
States Supreme Court has instructed, “[a] c1asstficatton does not fail rational
hams rev1ew because it ‘is not made With mathematical meety or because in
15
practice it results in some inequality ”’ Heller v Doe é}! Doe, 509 U S 312, 321
(1993) (citation omitted) This reflects the fact that the legislature addresses
“practical” problems that “may justify, if they do not reqmre, rough
accommodations illogical, it may be, and unsc1entific ” Id (citation omitted)
As this Court recognized last year in upholding another prows10n in KRS
Chapter 342 under rational ba51s rev1ew, “the task of classifying persons for
benefits ineV1tably requires that some persons who have an almost equally strong
claim to favored treatment be placed on different SldeS of the line ” Hiram, 582
S W 3d at 48 (cleaned up) (quoting Mar/Jew; a Dzaz, 426 U S 67 83 84 (1976))
In fact, KRS 342 730(4)’s fit between the means and the ends is, in one
important respect, an improvement over the prior statute As Parker recognized,
the prior statute allowed Kentucky teachers to continue receivtng workers’
compensation income benefits while “nearly every other worker” in the
Commonwealth stopped receivmg such benefits upon qualifying for normal old
age Socral Security retirement benefits Parker, 529 SW3d at 768 The new
statute eliminates this under inclusweness by ensuring that teachers and non
teachers in Kentucky are treated alike
In arguing that KRS 342 730(4) creates an unconstitutional classification,
Ms Cates relies upon V2520” Mmmg, 1716 a Gardner 364 S W 3d 455 (Ky 2011)
[Br at 6 7] But that case does not render KRS 342 730(4) unconstitutional See
Feltrzer, 582 S W3d at 46 n2 (discussmg how ratiOnal ba51s rev1ew is a case
16
spec1fic standard) Cal/02224}! C9; 2020 WL 5806818 at *4 (concluding that V2520”
Mmmg does not “compel” striking down a workers’ compensation statute in a
different context) mez Mmmg mvalidated a prOViSion of KRS Chapter 342
because it treated coal miners who contracted pneumoconiosrs differently from
other workers who contracted the disease The Court reasoned that “there is no
‘natural’ or ‘real’ distinction between coal workers’ pneumoconioms and other
forms of pneumoconiOSis ” V2520}: Mmmg, 364 S W 3d at 472 The Court
emphasrzed that “pneumoconiOSis is pneumoconiosrs is pneumoconiosis ” Id at
458 (Citation omitted) However, the Court acknowledged that “because nearly
all legislation differentiates in some manner between different classes of perSOns,
neither the federal nor state constitutions forb1d such claSSification per se” and
that workers’ compensation statutes are subject only to rational bas1s rev1ew Id
at 465 66 Thus, V1510” Mmmg does not undermine the fact that this Court has
held on four occasions in ”@1271, McDowell, Kai/9, and Parker that there is a
rational ba81s for treating injured older workers and injured younger workers
differently Wlth respect to the duration of workers compensation income
benefits
Ms Cares focuses in particular on Vmon Mmmg’s statement that “[i]n
con81denng an equal protection challenge, a court does not engage in accounting
of debits and credits ” Id at 474 This statement, Ms Cates argues, undercuts the
Court’s repeated holding that limiting the duration of workers’ compensation
17
income benefits for older workers is rationally related to the legitimate
government interest of creating sav1ngs for the workers’ compensation system
[Br at 7, 14—15] Paley itself refutes this interpretation of Vanna Mmmg Parker
quoted V1510” Mmmg’s “debits and credits’ language, Par/ear, 529 S W 3d at 769,
but nevertheless held that it was “[u]ndoubtedly” true that creating “sayings for
the workers’ compensation system is a “rational bas[1]s for treating those who,
based on their age, have qualified for normal SOCial Secunty retirement benefits
differently from those who, based on their age, have yet to do so,” 2:! at 768
V2520” Mmmg made its “debits and credits” statement in the context of
rejecting an argument that because coal miners received “preferential treatment”
in one respect, it was constitutional to treat them unfavorably in another respect
VmanMmmg, 364 S W 3d 473 74 As the Court explained, “one type ofdisparate
trea11nent [z e, a credit] does not constitute a rational basis Oi substantial and
justifiable reason for another form of disparate treatment [2 e , a debit] ” Id at
473 No such trade off is at issue here Thus, the passage from 17252072 Mmmg that
Ms Cates relies on is inapposite
At bottom, Ms Cates’s arguments reduce to a request that the Court
overrule the rational basrs rewew holdings in Wm, McDowell, Kali/5, and Parker
Stare dearly, of course, is not absolute But it is “the preferred course because it
promotes the evenhanded, predictable, and consistent development of legal
princ1ples, fosters reliance on judicial decisrons, and contributes to the actual and
1 8
perceived integrity of the Judic1al process ” Payne 0 Termeme, 501 U S 808, 827
(1991)
Respecting tiara deem: is particularly important here in light of the General
Assembly’s reliance on this Court’s prior dec131ons in crafting the new ver51on of
KRS 342 730(4) For more than 20 years pnor to Parker, Kentucky law limited
the duration of workers’ compensation income benefits for those who were
eligible for normal old age Soc1al Security reurement benefits Parker invalidated
this longstanding policy ch01ce, which prompted the General Assembly to
restore the status quo ante as best as It could 6 See Heifer 2020 WL 2095875, at
*3 (‘ The Kentucky Legislature needed to act quickly to return the workers’
compensation system to the status quo ”) In domg so, the General Assembly
naturally and correctly relied upon what this Court said in Parker It took as
a given this Court 8 statement that there are ‘[u]ndoubteclly” rational bases for
“treating those who, based on their age, have qualified for normal SOCial Security
retirement benefits differently from those who, based on their age, have yet to
6 Ms Cates claims in passrng that KRS 342 730(4) Violates procedural dueprocess because it allegedly has the effect of taking away benefits that wereawarded to Cares by the AL] [Br at 21 22] But applying the current statutegives Ms Cates more, not less, workers compensation income benefits At thetame of her injury, Parker had not been dec1ded and, thus, the old ver51on ofKRS342 730(4) sull applied Under that statute, Ms Cares would have received twoyears of benefits because, at age 66, she already was eligible for normal old ageSocral Security retirement benefits However, under the new statute, Ms Cates isentitled to four years ofworkers’ compensation income benefits
19
do so ” Parker, 529 SW3d at 768 Because the General Assembly carefully
followed this Court’s roadmap from Parker in enacting KRS 342 730(4) the
Court should be espec1ally wary of backtracking on Parker
In any event, none ofMs Cates s cntJCisms prOV1de a compelling reason
to overturn Wynn, McDowell, Kezz‘b, and Parker Ms Cates argues that the Court
should reVISit these holdings because older indiViduals “can no longer surVive on
just retirement and/or Soaal Security benefits ” [Br at 12] But that is a policy
argument that should be directed to the General Assembly Rational ba51s reView
does not permit “court room fact finding,” nor does it allow the Court “to judge
the wisdom, fairness or logic of the legislative choices ” See Howard, 969 S W 2d
at 703 (Citation omitted)
Ms Cares also asserts that it: is unfair to View normal old age Soc1al
Security retirement benefits as an offset for workers’ compensation income
benefits Her reason IndiViduals who keep working after they begin receiVing
Social Security retirement benefits continue to receive income from their work
[Br at 10—11] Here again this is a policy argument reserved for the General
Assembly See Howard 969 S W 2d at 703 What should or should not be counted
as an offset for workers’ compensation income benefits is purely a question of
policy that requires weighing the particulars of workers’ compensation income
benefits under KRS Chapter 342 against normal old age Social Security
retirement benefits That is a qu1ntessential legislative determination
20
II KRS 342. 730(4) is not specral legislation
Ms Cates next argues that KRS 342 730(4) constitutes spec1al legislation
in wolauon of Sections 59 and 60 of the Kentucky Consutution [Br at 6, 17
18 21]
This Court recently clarified the governing test for spec1al legislation
challenges In Galloway) Camry, the Court returned its junsprudence to the “proper
interpretauon [of Kentucky’s spee1al legislann promsrons] as understood in
1891 Cal/away} C91 2020 WL 5806818 at *5 Under this framework the Court
“Simply? asks whether the statute “applies to particular places or persons as
distinguished from classes of places or persons ” Id at *6 (quoting Greene 0
Caldwell 186 SW 648 654 (Ky 1916))
Cal/away! Caz/a9} applied this test to uphold a prows10n of Kentucky’s
workers’ compensation act That prowsion allows a worker’s estate to recover
lump sum death benefits if the worker died Within four years and as a “direct
result 01’ a work related injury Id at *3 (discussmg KRS 342 750(6)) The Court
had no difficulty upholding this statute under Sections 59 and 60 It reasoned
Applying the correct test, we hold that KRS 342 750(6) does not Violate
Sectlons 59 and 60 for the simple reason that the statute does not apply to a
partlcular 1ndiv1dual, object or locale It applies statemde to all employers and
employees ” Id at *11
21
Under this straightforward analy81s, KRS 342 730(4) also comports Wlth
Sections 59 and 60 KRS 342 730(4) is a statute of general applicability As the
Court of Appeals recognized (albeit pn'or to Cal/away Cough), KRS
342 730(4) “places a limit on the amount of benefits every injured worker is
awarded, not just a select group of indiv1duals ” Beam, 2020 WL 2603597, at *8,
we aim Domz‘bzm 2019 WL 6998653 at *3 (similar) Consequently KRS
342 730(4) readily surv1ves scrutiny under the test laid out in Callowqy Cozmgy
This COflClUSIOIl becomes even clearer when KRS 342 730(4) is compared
to the statute at issue in Umangi qf Czlmbeilmza’r v Pang/backs), 308 S W 3d 668
(Ky 2010) we aim Callawqy C91 2020 WL 5806818 at *10 n 19 (nonng that
Panama/ear applied the wrong test but reached the correct result “Since the statute
applied to [a] particular object”) The statute there created a scholarship for
which students at any a unglep/Jafimgl 55/9001were eligible Panama/ear, 308 S W 3d
at 685 (noting that the statute “restnct[ed] scholarships to those attending a
spec1fic pharmacy school’) Here, by contrast KRS 342 730(4) applies equally to
every0ne who receives workers’ compensation income benefits as well as to
everyone who has those benefits limited by operation of KRS 342 730(4)
CONCLUSION
The Court should uphold KRS 342 730(4) as constitutional
22
Respectfully submitted by,
S CHAD MEREDITH (No 92138)501252107" GeneralMATTHEW F KUI—lN (No 94241)Dept/g: 501mm" GeneralBRETTR NOLAN (No 95617)513.9624! Lzz’zgatzon Comm!
Office of the Attorney General700 Capltal Avenue Smte 118Frankfort Kentucky 40601(502) 696 5300
Comm!for/122017291 General Cameron
23
APPENDIX
2020 WL 2511433 C A I Ma 15 2020
WL5742856 { An Sent 25 2020
2020 WL 5083424 (Ky App Aug 28 2020) appealdoekez‘ea’ No 2020 CA 648 {
4 Dame/l a Daze}: No 2020 CA 451 2020 WL 4507352(Ky App Ju1y10 2020) appeal doekez‘ed 2020 SC 364
(K >5 Mal/211M Pablzslyere szlmg Co No 2018 CA 644 2020
Only the Westlaw citahon is currently available “I Kroger petitions and Cheryl Gates cross petitions this
Court to review a June 8, 2018, Opinion of the Workers’
Unpubhshed op1n10n See KY ST Compensanon Board (Board) affirming the Administrative
RCP Rule 76 28(4) before mtlng Law Judge 5 (ALT) award of permanent partial disability
NOT TO BE PUBLISHED benefits to Gates We vacate and remand Appeal No
Court oprpeals of Kentucky 2018 CA 001027 WC and affirm Cross Appeal No 2018
CA 001114 WC
KROGER’ Appellant On August 15 2015 Gates was employed by Kroger when
V she sustained a work related shoulder injury As a result,
Cheryl GATES, Honorable JeffV Cates filed a claim for workers’ compensation benefitsLayson, Administrative Law Judge, and Following a hearing, the ALJ rendered an Opinion, Award
, and Order on February 9, 2018 Therein, the AL] determined
Workers Compensation Board’ Appellees that Cates work related injury resulted in a permanent
Cheryl Gates, Cross Appellant Impalrrnent rating of 16 percent The ALJ awarded CatesV permanent partial disability benefits As Cates was how
on July 17 1949 the AL] concluded that the permanent
Kroger; Honorable JeffV Layson’ partial disability benefits would be subject to Kentucky
Admlm'stratlve Law Judge, Workers’ Revrsed Statutes (KRS) .342 730(4) The ALJ noted that KRSCompensation Board; and Daniel 342 730(4) was recently declared unconstitutional by the
Supreme Court in Parke: v Ii’ebslev County Coal LLC, 529
Cameron, Attorney General S W 3d 759 (Ky 2017) and believed that the version ofKRS
of Kentuckyl, Cross Appeflees .142 730(4) effective April 4 1994 controlled
NO 2018 CA 001027 WC KRS 342 730(4) was amended in 1996 to mandate that all
NO 2018 CA 001114 WC income benefits shall terminate as of the date upon which
i the claimant qualifies for regular Social Security retn ement
MAY 15, 2020; 10 00 A M benefits The Kentucky Supreme Court recently ruled that
this provision ofthe statute was unconstitutional in the case
CROSS PETITION/PETITION FOR REVIEW OF A of Pal/(cl v ”blaster Count} Coal 529 S W3d 739 (Ky
DECISION OF THE WORKERS COMPENSATION 2017) As aconsequence ofthat decision the award ofPPD
BOARD ACTION NO WC 17 01236 benefits in this case is for a period of425 weeks
Attorneys and Law Firms When a statute is ruled to be unconstitutional, the courts
treat it as if it had never been enacted Leglslanve Research
BRIEFS FOR APPELLANT/CROSS APPELLEE Commrsswn v Fischer 366 S W ad 905 (Ky 20l2) If
KROGER Sharlott K Higdon, Paducah, Kentucky the unconstitutional statute was enacted by amendment of
an existing statute, the pro-amendment version is the law
BRIEFS FOR APPELLEE/CROSS APPELLANT CHERYL Moseley v Commonwealth Dept oleghways 489 S W 2d
GATES Jeffery A Roberts Mmray Kentucky all (Ky 1972) Accordingly the award of permanent
BEFORE JONES TAYLOR AND K THOMPSON partial disability benefits in this case shall be subject to the
JUDGES provisions ofKRS 342 730(4) in effect as ofApril 4 1994
Opinion, Award, and Order at 10
OPINION Both Krogel and Cates sought review with the Boatd While
the matter was pending before the Board, the Kentucky
General Assembly amended KRS 342 730(4) on July 14
2018 Under the amended KRS 342 730(4), income benefits the Legislature expressly provided therefor Thus, the Board
would terminate when the employee reached the age of ened by concluding otherwise
seventy or upon four years afier the employee’s injury,
whichever occurred later in time The Legislature also
expressly provided that the amended KRS 342 730(4) should No 2018 CA 001114 WC
apply renoactlvely to all claims that had not been “fully and
finally adjudicated” and had an lnjury/dlsease date on 01 after Cates contends that retroactive application of the amended
December 12, 1996 version of KRS 342 730(4) is unconstltutional Gates alguesthat the amended KRS 342 730(4) Violates due p1ocess,
By Opinion entered June 3, 2013 the Board affirmed the equal protection, and is arbitrary Gates believes that theALJ 5 opinion The Board rejected Kroger’s argument that amended KRS 342 730(4) lmpl‘OperIy treats some olderthe amended KRS :42 730(4) renoactively applied to CeteS’ workers differently and constitutes an arbitrary classificationaward of income benefits
Flrst, retroactivity of the changes to KRS :42 730(4) by
Gates and Kroger filed petitlons in this Court for review By [House Bill] HE 2 is arbitrary and Vlolatlon of the due
Order entered January 25 2019 the Court of Appeals, sua process and equal protection provisions of the Kentucky
sponte, placed these appeals and othel appeals in abeyance Constitution, BSPCCifllly as applied to Cates
pending the Supreme Court’s deciSlon in two appeals Lamer
v Universzly of Louisville Appeal No 2018 SC 000685
WC2 311d H0101"? V S‘wmford Appeal N0 2018 SC 000627 Cates was injured on August 15 2015 just a few weeks
WC 130th appeals centered “P011 whether the amended KRS afier her 66 birthday The ALI lendered his decision on:42 730(4) should be given retroactive application February 9, 2018 Kroger has kept appealmg this case for
the sole purpose of keeping it alive until after July 14,
*2 The Supreme Court eventually rendered an Opinion 2018 the effectwe date ofHB 2’s changes to the Workers[‘]
in HOICW 1’ Sll‘hlfO’d 581 S W3d 37 (Ky 2019) and Compensation Act (1) BB 2 changed the law on July 14determined that the amended KRS 342 730(4) applied 2014, nearly 3 years afier Cates[’] injury To demonstrate
1'etrcactlvely to pending 63555 as the Legislature had how the legislature has treated similarly situated workersexpressly provided thelefor The Court declined to reach the differently, let’s compare Gates to hypothetical Claimant
constitutionality 0f KRS 342 730(4) because the Attorney X, another 66 year old (the same age of Cates) injured
General was not worldly notified of the constitutional on August 15, 2015 (the same day as Cates) whose claimchallenge per KRS 418 075 was decided by the AL] on February 9 2018 (the same
day as the ALJ decision in Gates) and awarded the exact
After the Opinion in Holczm was rendered the Court same benefits as Cates However Claimant X’s case was
0f Appeals returned these appeals to the active docket not appealed Clearly, ClaimantX and Cates are Slmllarly
for a dealsion on the merits We shall initially address situated ClaimantX would receive the fill] $113,616 12 ofKroger’s arguments ralsed in its petitlon (Appeal N0 2018 benefits awarded by the ALI and get the full 425 weeks ofCA 001027 WC) and then address Cates’ arguments raised in the award, whereas Gates will only get 4 years ofhel- award
her Gloss petitlon (Cross Appeal No 2018 CA 001114 WC) and lose $58 407 36 Clearly the disparate treatment of
for leview similarly situated lndividuals by the retroactive applicationof the changes to [KRS] 347 730(4) violates Section 1 2
and 3
No 2018 CA 001027 WC
Kroger argues that the amended KRS 34? 730(4) Secondly, retroactivity for certain changes to the workers[ ]retroactlvely applles to lunlt the duration of Cates’ lncome compensation statutes by 1-13 2 and not others is also
benefits Followmg the holdlng ln Holcim, 581 S W3d 37arbitrary and Vlolatlon of the due pr0cess and equal
we are compelled to conclude that the amended “#510“ protection provisions of the Kentucky Constitution Thereof KRS 342 730(4) retroactively applies to Cates clalm as are no references by the Legislature in BB 2 for any
“emergency” need for retroactive application as set forth in Cates Brief at 8 11
Section 20 subparagraph 3, or for that matter, any provision
of H8 2 being an “emergency” As such, the subject It is generally understood that legislative enactments are
provision should not be permitted to be retroactive and presumed to be constitutional Brooks v Island Creek Coal
should only apply to cases involving injurres occurring on Co 678 S W2d 79] 792 (Ky App 1984) To comply
or after July 14, 2018 In fact, while Section 20 states that with the equal protection clause and due process clause, our
some portions of BB 2 are remedial, it does not indicate Supreme Court recognized that “[a] statute involvrng the
that the changes to KRS 342 730(4) are even remedial regulation of economic matters or matters of social welfare
[must be] rationally related to a legitimate state objective ”*3 Next the classification of lunited retroactivrty violates ”5W1 v [bold Inc 969 S W 2d 695 696 (Ky 1998)
the provisions of the Kentucky Constitution prohibiting
special legislation The amendment to KRS 342 730(4) By its plain terms KRS 342 730(4) terminates income
applies to injured older workers but “Qt all injured benefits eitherwhen the claimantreaches seventy years ofage
workers In fact, H3 2 made changes to other subsections or four years after injury, whichever occurs later in time It
on KRS 342 790’ but those changes are not (16513,“th is patently clear that KRS 342 730(4) treats injured elderly
to be retroactive and only apply to mjuries on or after claimants differently from injured younger claimants3 TheJuly 14, 2018 As such, the retroactive application ofKRS
342 730(4) is special legislation in violatron of Sectron 59 reason f0: this disparate treatment rests upon the elderly
and 60 of the Kentucky Constitution Therefore, it should claimants entitlement to 500131 security benefits and thenot be permitted to be retroactive and should only apply to correspondmg objective ofpreventing duplication ofbenefits
See Parker 329 S W 3d at 768 Minn 969 S W2d at 697cases mvolvrng mjurres occurring afier July 14, 2018
In addition, the retroactrvity of KRS 342 7.) 0(4) is *4 Prevrously, the Supreme Court has upheld theunconstitutional because it violates due process under the constitutionality of a workers compensation statute limiting
14[th] Amendment to the United States Constitution In income benefits to claimants based upon age
Goldberg r Kell) 397 U S 254 262 90 S Ct 1011
1017 25 L Ed 2d 287 (1970) the United States Supreme Keepmg m mmd ,fl‘at the plums? °f w°rkersCourt held that a person receiving welfare benefits under compensation legislation rs to maintain a stream 0fstatutory and administrative standards defining eligibility income to drsabled workers and then dependents, we are
for them has an interest in those benefits that is safeguarded persuaded that avordmg a duplicatron Of income benefitsby procedural due process 18 a legitimate state objectrve and sound public policy
See Brooks v Island Creek Coal C0 supra At a time
Clearly workers[’] compensation in Kentucky has when workers become eligible for other forms of income
statutory and administrative standards defining eligibility replacement, “Gt only does KRS ’42 730(4) help “Cidfor those compensation benefits making it more profitable to be disabled than not, it
also serves to reduce the overall cost of maintaining the
It is true that to have property interest in a benefit, a workers’ compensation system, thereby improving the
clarmantmusthavemorethan an abstractneed ordesrre for economrc climate for all the citizens of the state We,
it or a unilateral expectation ofit Instead, they must have a therefore, conclude that KRS 342 730(4) complies with the
legitimate claim ofentitlement to it (See BoardofRegents requirements of due process and equal protection and is
ofState Collagen Roth 408 U S 564 577 923 Ct 2710 constitutional
2709 33 L Ed 2d 548 (l972)[)] "31m 969 S W261 at 697
Cates received an award from an AL] 80’ she has a Upon the same reasoning, we believe that the prevention of
legitimate 01mm ofentrtlement to the awarded benefits duplication ofbenefits constitutes a rational basis for treating
KRS 342 730(4) as effective July 14 2018[ i has the effect injured elderly claimants difierently from rnjured younger
of taking away benefits that were awarded to Cates by the 012111113113 m the amended KRS 342 73 0(4) AS a ratronalAL] The ALI awarded benefits to Cates based on the law basrs exists, we conclude the classification contained in the
in effect at the time ofherrnjury and at the timeofthe ALI 5 amended KRS 342 730(4) does not violate the constitutional
guarantees of equal protection or due process nor does it assertion, Cates did not haveavested right to income benefits
create an arbitrary classification unhampered by any version of KRS 342 730(4) or by the
version ofKRS .342 73 0(4) effective in 1994 Therefore, we
Cates further asserts that the amended KRS 342 730(4 hold that no vested right of Cates was adversely im aired byP
Violated the constitutional prohibition as to special legislation the retroactive application ofKRS 342 730(4)
contained in the Kentucky Constitution Sections 59 and 60 In
suppmttheieof, Cates maintains that KRS .142 730(4) applies *5 Cates further asserts that the amended KRS 342 730(4)
to oldei in ured workeis but not to younger in ured workers, is unconstitutional because the General Assembly did notJ .1thus creating the unconstitutional special legislation comply With the dictates of Section 46 of the Kentucky
Constitution Cates maintains that theHB 2(KRS :42 730(4))
The Kentucky Supreme Court defines “[s]pecial legislation was not iead three times as mandated by Section 46
[as] arbitrary and irrational legislation that favors the
economic self interest of the one or the few over that of the The legislative record ('2) for HB 2 shows that HE 2many” Zuckei man v Bevm, 565 S W3d 580, 599 (Ky 2018) received three readings in the House of Representatives
(citation omitted) It has been recognized that “[a] statute on Feb 15, 16, and 20, 2018, respect1vely After the third
which relates to persons or things as a class is a geneial law, reading on February 20’ 2018’ a floor amendment was
while a statute which relates to particular persons or things of made to H3 2 that was passed, floor amendment 2 (3) HBa class is special 5, Id (citations omitted) 2 then moved to the Senate H3 2 ieceived its first and
second reading in the Senate on March 19 and 20, 2018
Here, the amended KRS 342 730(4) limits the duration It was rep0ited favorably fiom committee With a senate
of income benefim for injured workers who are seventy committee substitute on March 21 2018 H3 2 received
years old or older if their injury/disease occurred after “5 third reading In the Senate on March 22’ 2018“ and ItDecember 12, 1996 Consequently, we conclude that KRS was passed With Senate Committee Substitutel and Senate
342 730(4) similarly treats older workers as a class And, as Floor Amendment 1 Senate Committee Substitute l “nth
hereinbefore determined, there exists a reasonable basis for Senate Floor Amendment 1 was sent back to the House
the classification Thus, we conclude that the amended KRS The House passed the Senate Committee Substitutive and342 730(4) does not constitute special legislation floor amendment on March 27, 2018 There is no notation
in the legislative record ofthe House havmg any readings
Cates also maintains that retroactive application of the OfHB 2 aftei it came I)?“ from the Senate With a Senateamended KRS J42 730(4) infringes upon her right to recover Committee Substitute bill With Senate Floor Amendment
income benefits and unconstitutionally impairs her vested 1’ much less 3 readings
rights to those benefits We disagree Cates’ Brief at 13 14 So, alter amendments to HE 2,
Gates argues that the Kentucky House of Representatives
It is true that the “rights of the parties In iespect to was constitutionally required to conduct an additional three
compensation for injuries [become] fixed and vested on the readings to comply with Kentucky Constitution Section 46
date of the inju1y” SchIma'l v South Cent Bell 340 S W 3d591 594 (Ky App 2011) (quoting Thomas v Clummles In Bevm v Commonwealth 8.1 re] lies/rem, 563 S W3d 74
Geek Coal C0 179 S W2d 882 883 (Ky 1944)) Heiein (Ky 2018) the Kentucky Supreme Court held thatabill may
it is undisputed that Cates’ work related injury occurred on be amended Without three additional readings so long as the
August 15 2015 On that date the version ofKRS 342 730(4) amendments related to the ongmal “3X" and We “theW
In force prov1ded that income benefits terminated when Of course, legislators may amend the text ofa bill betweenthe claimant qualified for normal old age soc1a1 security
its readings Without running afoul of § 46 Ordinarily,retirement benefits” or two years after the claimant’s LnJury,
the rev1sed text is some variation of the original text andwhichever occurred later in time Under the amended KRS
remains conSistent With the theme reflected in the title342 730(4), income benefits termmate when the claimant
of the bill The complete elimination of all the words ofreaches seventy yeais old or four years aftei the claimant s
the prior readings and their total replacement With wordsinJuiy, whichever occurs later in time Therefore, Cates is
bearing no relationship to the title of the bill is a faractually entitled to benefits of a longer duration under the
d d fKRS 342 730 4 A d tr t C t , different matter With respect to § 46 compliance Home;
amen e versmno ( ) 11 con ary o 365 v Board of Coma); Comm'Is Flank)»: County 19 Ohio
St 3d 1 482 N E 2d 575 579 (1985) ( [A]mendments Consequently we do not believe that Section 46 of the
which do not vitally alter the substance of a bill do not Kentucky Constitution was violated
trigger a requirement for three considerations anew ofsuch
amended bill But, when the subject or proposition of the We vrew any remamrng contentions 0f error as moot or
bill is thereby wholly changed, it would seem to be proper “hm“ “1"”to lead the amended bill three times, and on differentdays ,,) (quotation marks and citations omitted) Magee v In sum, we hold that Cates failed to demonstrate the amended
Boyd 173 So 3d 79, 114 (Ala 201:)( [Ill is clear that the versron of KRS .142 730(4) 15 unconstitutional Therefore,
substrlute version ofH8 84 was not read ‘on three different 1n accordance With For it)“ 379 S W 3d 739’ the amended
days’ in each house However we hold thatanamended bill version 0f KRS 347 730(4) retroactively applies to Cates’
or a substitute bill, if germane to and not inconsistent with claim Upon remand, the AL] shall determine Cates’ incomethe general purpose ofthe original bill does not have to be benefits m accordance with the newly amended version of
read three times on three different days to comply with § KRS 342 730(4)
63 [Alabama’s the three readings requirement ]”) State v.Ryan, 92 Nch 6.)6 I 39 N W 235, 238 (1912) (allowing For the foregorng reasons, we vacate and remand Appeal No
amendments to be mtroduced after the legislative session 2018 CA 001027 WC and affirm Cross Appeal No 2018
ends so long as “the amendment is germane to the subject CA 001114 WC
of the original bill and not an evident attempt to evade the
Constitution’) State v. Hacker 36 Fla 358, 1880 767 770
(1895) (explaining that three re readings are unnecessary ALL CONCUR
when the amendments in question are “made germane to
[the bill’s] general subject either to the body of the bill or A“ Citations
to its title )
6 1d at 91 92 There is no argument that the amendments Not Reported m S W RP“ 2020 WL 2511433
to HR 2 were unrelated to the substance or title thereof
Footnotes
1 Andy Beshear is no longer the Attorney General of Kentucky Daniel Cameron was sworn in as the current Attorney
General of Kentucky on December 17, 2019 Under Kentucky Rules of Civil Procedure 76 24(c)(1) Danrel Cameron is
automatlcaiiy substituted as a party
2 By Order entered March 14 2019 the Supreme Court dismissed Lanier v Unwersrty of Loursvrlle Appeal No 2018
80 000685 WC
3 This difference in treatment under Kentucky Revised Statutes 342 730(4) was aptly explained by the Supreme Court in
Parker v Webster County Coal LLC (Dank! Mme) 529 S W 3d 759 768 (Ky 2017) as foIIOWS
[U]nder the statute a worker who is injured more than 425 weeks (or 520 weeks under certain Circumstances) before
he or she reaches normal Social Security retrrement age will receive all of the permanent partial disability income
benefits to which he or she is entitled A worker who IS injured less than 425 weeks before he or she reaches normal
Social Security retirement age Will not receive all of the permanent partial drsabrlrty income benefits to which he or she
Coffey v McCreary County Fiscal Court Not Reported in S W Rptr (2020)W_____.—_—————-——-———-————————-———2020 WL 5742856
2020 WL 5742856 BACKGROUND
Only the Westlaw citatlon is currently availableOnNovember 27, 201 8 a defective hydraulic liftwas lowered
Unpublished opinion SeeKYST onto Coffey‘s foot She alleged a safety violation by her
RCP Rule 76 23(4) before citing employer, McCreary County Fiscal Court Subsequently,McCreaiy County alleged a safety violation by Coffey BefOie
NOT TO BE PUBLISHED the final hearing Cofiey filed a “Notice of Constitutional
Court oprpeals 0f Kentucky Challenge on February 26, 2019, asserting the retroactive
application of the current verSion of KRS 342 730(4) is
Klmbefly COFFEY’ Appellant unconstitutional A final hearing was held on June 4 2019
V.
MCCREARY COUNTY FISCAL The ALJ issued an opinion on August 5 2019 In that
opinion, the AL] determined Cofiey sustained a permanent
COURT’ Hon Grant S Roark’ total disability stemming from McCreary County's violation
Administrative Law Judge; and Workers’ of a safety regulation Regarding Coffeys constitutionalCompensation Board, Appellees challenge the AL] stated it had no authority to rule on
constitutional issues, limited her award based on the statute,
NO 2020 CA 0088 WC and pieserved the issue for appellate ieview The Boaid made
i the same determination, and this appeal followed
SEPTEMBER 25, 2020 10 00 A M
PETITION FOR REVIEW OF A DECISION OF THESTA REVIEW
WORKERS COMPENSATION BOARD ACTION NO NDARD 0F
WC 16 91920 The Court ieviews questions of law such as the
constitutionality of statutes, using the de novo standard U SttA “new and Law Fm“ Bank Home Mortgage v Schieckei 455 s w 3d 382 334 (Ky
BRIEF FOR APPELLANT Mark D Kni In Somerset 2014)Kentucky
I a ;BRIEF FOR APPELLEE Mame Smith Frankfort ANALYSIS
Kentucky
BEFORE CLAYTON CHIEF IUDGE ACREE Coffey argues the retroactivity ofthe current version ofKRS
’ ’ 342 730(4) is unconstitutional and that she is entitled to fullLAMBERT JUDGES
benefits for life because the retroactiVity provmon is an
unconstitutional expostfacto law We disagree
OPJNION Our Supreme Court in Hakim v Sivinford held that the statute
ACREE JUDGE is retroactive but did not addiess the constitutionality of the
stamtesretroactive application 58] S W3d 37 44 (Ky 2019)
1 Kunbei1y Cofi‘ey appeals fiom an opinion of (‘the constitutionality ofthe statute is not at issue before us”)
the Workers’ Compensation Board which upheld an Coffey 1313065 the issue squarely before this court
administrative law judge's (ALI) order awarding her
permanent total disability benefits and medical benefits, but C053)? claims the “3th 15 unconstitutional because it
limited her award according to the newly enacted Kentucky violates the Contract Clauses 0f the United States and
Revised Statute (KRS) 342 730(4) We affirm Kentucky Constitutions This is the second time the issue
was raised in this forum Adams v Excel Mmmg LLC, No
Coffey v McCreary County Fiscal Court, Not Reported in S W Rptr (2020)
2020 WL 5742856
21’ 202ml We believe that Opinion, albeit unpublished, Asignificantconsiderationinthis step oftheanalysis is thedEdezuately addresses this issue, an we repeat that analysrs extenttowhich the industy subject to the contracthas been
er regulated in the past The rationale for this rule is thusly
tat d O h is 11 th b tt
The prohibition against ex p031 flute laws found in the :tat:restri:fi::1 2:311:12: fl:m 31:13:31:$chUnited States Constitution and the Kentucky Constitution State b inakin, acontract about them ,, ponly applies to criminal matters Nicholson v Judicial Rel & y g
Id at 370 (CltaIIOIIS omitted) Here, we conclude the newRemoval Comni'n 56ZSW2d 306 308 (Ky 1978) However, law substantiall im airs Cofie 's benefits A]thou h the
Section 19(1) of the Kentucky Constitution and Article I , y p y gworkers compensation scheme is handy regulated, past
Section 10, Clause 1 ofthe United States Constitution prohibit1 h h a] bl t f it ts Th C ff verSions ofKRS 342 730(4) have allowed a benefit recrpient
awsw lo impair e0 iga iono con ac ISIS o eys to receive benefits for life In fact, the 1994 version of theargument She claims retroactive application of this statute
frin es on her ri hts to recover workers’ com ensation statute would have allowed Coffey to receive benefits for life,
m g g p although they were subject to reduction from time to timebenefits pursuant to the statute in effect at the time of herinjury In other words she agreed to take PM in Kentucky's The current verSion terminates benefits once Cofl‘ey reaches
0 fworkers’ compensation scheme and demands she receive the 7 years 0 age
benefits to which she was entitled at the time she was injured The second stage ofthe analysis involves a determination
Mt pursuant to the new retroactive regulation of whether the newly imposed conditions that impair the
*2 [A] constitutional prohibition against impairina the contract can be justified by a significant and legitimate
obligation of contracts is not an absolute one to be 5223:3251: ;?::ngai::dpfl:s:mt::thim;f:biz:
read with literal exactness The Contract Clause does not and general socigal or economic problem y g
t::\::::n:t:1e 32:5:nacil2i:egm:;or:eo;i:lati:::::1:: Id. at 371 (citations omitted) Significantly, the Kentucky
its people y ary gu Supreme Court found that limiting the duration of benefits is
t t blMme v. Bd ofDirectors for Commonwealth P0313800”daiy justified byalegi ima epu ic purpose The Court concluded
that limtting the duration of benefits solves two economicEduc Piepam' Tuition Ti Fund, 559 S W 3d 354, 368 “(Ky 2018) (citation omitted) When deteriniriino whether a problems (I) it prevents duplication of benefits, and (2)
1e islative act violates the contract im aimentbclause we it results in savings for the workers’ compensation system ’utiglize the followm standard p ’ Paikei v ll’ebster County Coal LLC (Doliki Mme), 529
g S W 3d 759 768 (Ky 2017) This is evident from the fact that
(1) whether the legislation operates as a substantial aduration limitation ofbenefits has beenmefi'eetin Kentucky
impairment of a contractual relationship; (2) if so, then since the 1996 “mo“ ofKRS 3’42 730(4)
the inquiry turns to whether there is a significant andth d ta f th h
legitimate public purpose behind the regulation, such as The 1r 5 ‘ch o e may“ examines w ether Thethe remedying of a broad and general social or economic adjustment of the rights and respon5ibihties ofcontracting
problem and (3) if as in this we the government parties [is based] upon reasonable conditions and [is] of a
is a pality to the cdntract, we examine whether that character appropriate to the public purpose justifying [the
impairment is nonetheless permissible as a lecitimate legislation's] adoption Analysis under this prong varies° d d th th t
exercise ofthe state's sovereign powers," and we determine ‘73:: if :21: 2:151:15: 28:: 15:1):ny to the C2313:
if the impairment is “upon reasonable conditions and of a custom in reviewin egnomiEZn::;:igalpi:I-ty,lation
character appropriate to the public purpose justifying its my g gu ’adoption” courts properly defer to legislative judgment as to the
Id at 369 necessity and reasonableness of a particular measure ”
3 Mme, 559 S W3d at :72 (citations omitted) The
‘Th f‘ st Ste is determinin ‘wh the th state law has contracts at issue here are not between individuals and the
in fife no amid as a substantialgim aeirmZnt :f a contractual State’ but between an employee, an employer, and 3 workers’”mg“; , ” 1d. at 369 70 (citaticfns omitted) compensation insurance provider We, therefore, defer to the
Coffey v McCreary County Fiscal Court Not Reported in S W Rptr (2020)_____—___._—.___—___—___———2020 WL 5742856
We believe retroactive application of hRS 342 730(4) is the statute and concluded the statute was constitutional We
reasonable and appropriate As previously stated, limiting held as follows
the duration Of benefits has been a part Of the workers” The legislators enacted this veision in lesponse to Parkercompensation system since 1996 Parker, supra, found the We are also cognizant of the strong presumption of
particular manner of [Imitation which applied at that time constitutionality afforded to legislative acts Brooks v
to be unconstitutional The Kentucky Legislature had to Island Creek Coal Co 678 S W 7d 791 792 (Ky
act quickly to ietum the workers’ compensation system to App 1984) (citations omitted) Accordingly we find
the status quo Had the legislature not acted 50’ employees the statute, as enacted, does not heat similarly situated
With pending workers’ compensation claims between the persons difi'erently The statute allows for the benefitsrendering of Parker and the effective date of the current to terminate upon reaching the age of 70 or four years
version ofKRS 342 730(4) could have claimed entitlement to after the employee's injury whichever occurs last This
some amount 0f benefits for hfe This would have placed a stipulation rationally relates to the government‘s basis forgreat financial burden on the workers’ compensation system, the legislation to save taxpayer dollars allocated to the
employers, and insurers Holczm v Stamford holds that the workers’ compensation system It places a limit on the
Kentucky Legislature specifically intended that the curient amount of benefits eveiy person is awarded not just a
version 0f KRS 342 7" 0(4) apply retroactively 581 S W 3d select group of individuals Therefore, we find the statuteat 44 And this Court is bound by that decision CI fife/Men constitutional
COWD’F’SMICOWN Hodge,591 S W 3d 424 426(Ky App 1d. at *3 For these same reasons, we conclude the current2019) Consequently, the statute's limitation as to duration versron ofKRS 34,, 730(4) is constitutional
applies to Coffey
Coffey makes one additional argument challenging the
constitutionality of the statute, which has also been addressed CONCLUSION
previously by this Court She contends the age limitation is ‘unconstitutional based on the foregoing, we affirm the Board 5 final opinion
in this case
This issue is currently pending before the Kentucky SUpreme
Court as a matter of right appeal flom this Court's deciSion
in Donal/ran l Town and Country Food ”at! No 2018 ALL CONCUR
CA 001371 WC 2019 WL 699865) (Ky App Dec 20
2019) In that case, this Court applied the rational basis test to A“ 0mm“
Not Reported in S W Rptr 2020 WL 5742856
Footnotes
1 ThIS case is currently on appeal to the Kentucky Supreme Court No 2020 SC 0137 WC
Flynn v Buyers Paradise Furniture, Inc, Not Reported in S W Rptr (2020)
2020 WL 5083424
XIV, and Ky Const § 3 He specifically contends that of our state or federal constitutions Adams v Excel Vining
any age limitation applied to the administration of workers LLC No 2018 CA 000925 WC 2020 WL 864129 (Ry App
compensation income disability benefits is unconstitutional Feb 21 2020) (unpublished) Therein, the Com considered
For the following reasons, we disagree arguments nearly identical to those in the present case, and
ultimately concluded, inter aha
As noted by the Board in its opinion aflirming the AL], HouseBill (HB) 2 became effective on July 14’ 2018, while Flynn‘s The contracts at issue here are not between individuals and
case was pending before the ALI Section 13 of that bill the state, but between an employee an employer, and aamended KRS 342 730(4) to include the following workers’ compensation insurance provider We, therefore,
will defer to the Judgment of the legislature We believe
*2 All income benefits payable pursuant to this chapter retroactive application of KRS 342 730(4) is reasonable
shall terminate as of the date upon which the employee and appropriate As previously stated, limiting the duration
reaches the age of seventy (70), or four (4) years after the of benefits has been a part of the workers’ compensation
employee's injury or last exposure, whichever last occurs system since 1996
In like manner all income benefits payable pursuant to this Id at *3 Although not binding on this Court, we adopt the
chapter to spouses and dependents shall terminate as of sound reasoning advanced in Adams
the date upOn which the employee would have reached age
seventy (70) or four (4) years after the employee's date of Lastly, Flynn gives short shrifi to his argument that
injury or date of last exposure whichever last occurs retroactive application of KRS 342 730(4) constitutes an
But for KRS 342 730(4), Flynn would have been entitled to arbitrary exercise of power under Section 2 of the Kentucky
receive 425 weeks ofPPD benefits See KRS 342 730(1 )(d) Constitution However, for the following reasons, the General
Due to the application of KRS 342 730(4) however Flynn Assembly's amendment of KRS 342 730(4) is rationally
asserts that his income benefits have been reduced by 243 related to a legitimate government interest and is, therefore,
weeks, or 57% ofPPD benefits, based solely on his age, not not arbitrary
his injury
B Whether KRS 342 730(4) violates equal protection
A Retroactivity of KRS 342 730(4) Prior to the 2018 amendments IxRS 34?. 730(4) stated in
The Kentucky Supreme Court recently addressed the pertinent part
retroactivity of KRS 342 730(4) in Hakim v SWIM/bid, 581S W 3d 37 (Ky 2019) The issue in Swmford concerned the All income benefits payable pursuant to this chapter shall
Legislative Research Commission's failure to include HE terminate as ofthe date upon WhiCh the employee qualifies2‘s language indicating retroactivity in the official codified for normal Old age Social Security retirement benefitsversion of the KRS 1d at 42 44 The Court ultimately held underthe United States Social Security Act, 47 U S C sees
that KRS 34?. 730(4) shall be applied retroactively to those 301 to 1397f or two (2) years after the employee 5 injury
cases which “have not been fully and finally adjudicated ” or last exposure, whichever last occursId at 44 Applying Sivmfora’ Flynn's award is subject to *3 In Parkerv Webster CormeCoal, LLC (Don/a Mme), the
the limitation provided therein However, the Court did Kentucky Supreme Court held this provision unconstitutional
not address the statute's constitutionality due to Appellee because ‘t “013th principles Of equal protection 529Swinford‘s failure to properly preserve the issue In the S W 3d 759 (Ky 2017) In 50 holding, the Court specificallypresent case, Flynn has properly preserved his constitutional concluded as follows
challenges Therefore, we will address the constitutionality of The problem with KRS 342 730(4) is that it invidiously
the amended verSion ofKRS 342 730(4) on the meritsdiscriminates against those who qualify for one type of
‘ retirement benefit (social security) from those who do notAs to ietroactrvrty speCifically, Flynn s argument is confined qualify for that type 0fretirement benefit but do qualify for
mostly to an application of Section 19(1) of the Kentuckyanother type of retirement benefit (teacher retirement)
Constitution and Article 1, Section 10, Clause 1 of the
United States Constitution, which prohibit the impairment
of contract obligations A panel of this Court recently held
that KRS 342 730(4) does not violate the contract clauses
Flynn v Buyers Paradise FurnitureI Inc , Not Reported in S W Rptr (2020)
2020 WL 5083424
Donatlian 2019 WL 6998653 at *3[W]hile teachers will receive all of their workers’
compensation benefits to which they are entitled, nearly 4 We adopt the holding and reasoning advanced in
every other worker in the Commonwealth will not Donalhan However, we believe that additional analysisI”: at 768 69 (footnote omitted) proves instructive due to Flynn's distinctive argument in
the present case—that any age limitation applied to the
This decision prompted the General Assembly, through HE administration of workers’ compensation income disability2, to cure the constitutional infirmity diagnosed in Parker benefits is unconstitutional
As prevrously cited Section 13 of that bill amended KRS
34" 730(4) to include the followmg Age based classifications are rarely even constitutionallyAll income benefits payable pursuant to this chapter suspect much less stuck down on equal protection grounds
shall terminate as of the date upon which the employee See, e g, illassachzrsetls Board ofRetirement v ”ng0, 427
US 307 (1976) (holding that Massachusetts mandatOiyreaches the age of seventy (70), or four (4) years alter the
. retiienient age fOi state police officers did not Violate theemployee 5 injury or last exposure, whichever last occurs ,
Inlike manner all income benefits payable pursuantto this oflicers ”gm to equal protection) As one scholar has
chapter to spouses and dependents shall terminate as of observed
the date upon which the employee would have reached age For decades both the legal academy and the courts
seventy (70) or four (4) years alter the employee‘s date Of have assumed that unlike claSSIfications based on raceinjury or date of last exposure, whicheverlast occurs or gender classifications based on age do not offend
We recently addressed the constitutionality of this amended constitutional equal protection guarantees Consistent Wlth
version of KRS 3-12 730(4) 111 Donal/2a» v Town 6. Cozmny a.“ assumption, chronological age is seen as an expedient
Food Mart No 7018 CA 001371 WC 2019 WL 6998653 and acceptable proxy for a variety of underlying human
(Ky App Dec 20, 2019?; see also Bean 1’ Collier Elev characteristics that policymakers wish to target fOi public
Set-v, No 2020 CA 00032] WC, 2020 WL 2603597 (Ky policy interventions, and age based criteria continue to be
App May 22 2020) Both cases upheld the constitutionality entrenched in U S public policy
of the amended version of the statute And although both Nina A Kuhn, Rethmlmg [he CDIISHIullonalll) of 4ge
cases are unpublished, and are thus not being relied on herein DISC) immune» A Challenge to a Decades Old Consensus,
as binding authority, we are cognizant of these cases and 44 U C Dams L Rev 213 215 (2010) (footnote omitted)
their relevance to our analysis Mindful of CR 3 76 28(4)(c),we find it important to specifically acknowledge that we are In fact, oui laws are rife with numerous examples ofeconomic
aware ofDonathan and its status at this point pending in our and non economic age based restimuons/classifications
Supreme Court Donathan specifically reasoned as followsF01 example, one must be twenty one to consume alcohol
Applying the rational basis test, we find this version ofthe legally and sixty five to become eligible for generalstatute constitutional The legislators enacted this verSion Medicare Chronological age criteria employed in statutesin response to Parke, We are also cognizant Ofthe strong can also dictate the ability of an individual to invoke
presumption of constitutionality afforded to legislative statutory protection from employment discrimination, theacts 3,00)“. u Island Creek Coal Co , 673 s w 2d 791, criteria for retaining a driver's license, or even the
792 (Ky App 1934) (citations omitted) Accordingly, we extent to which patients may communicate privately with
find the statute, as enacted, does not treat similarly Situated physicians
persons dlfi‘erenfly The statute allows for the benefits Id (footnotes omitted), see also id at 227 n 79 (collecting
to terminate upon reaching the age of 70, 01 four years cases applying Mars“! in lower courts)
afier the employee's injury, whichever occurs last This
stipulation rationally relates to the government's basis for Howevei, even age based ”Studio“ cannot be arbitrarythe legislation to save taxpayer dollars allocated to the 393 KY Const § 2 F31” from arbitrary, it '5 rational toworkers compensation system It places a unfit on the conclude that workers’ compensation claimants 70 years or
amount of benefits every person is awarded, not just a older have exited or will soon exit the workforce It is also
select group of individuals Therefore, we find the statute likely that they have obtained or qualify for some type 0fconstitutional retirement device/derivative income or asset that is non wage
WESTLAW (C) 2020 Thomson Reuters No claim to original U 8 Government Works 3
Flynn v Buyers Paradise Furniture, Inc , Not Reported in S W Rptr (2020)
2020 WL 5083424
based (1 e pension RA 401(k) savings account, etc) And protection violanon here, there is also no violation of Section
while Social Security income benefits are certainly included 39 See also Bean, 2020 WI" 2603597’ at *7 8
in this category, the amended version of KRS 342 730(4)
no longer discriminates between Social Security recipients
and non Social Security recipients Thus, curtailing workers’ [[1 CONCLUSION
compensation income benefits at age 70 is not arbitrary
Rather, the amended version omens 342 730(4) is rationally *5 Accordingly, the ALJ preperly applied the amendedrelated to the legitimate legislative objective of avoiding version of KRS 342 730(4) retroactively In applying thethe payment of duplicafive income benefits and maintaining relevant authorities and otherwise finding no constitutional
adequate funding ofthe workers’ compensation system infirmity, we hereby aflirm the Board, affirming the decisionissued by the ALJ
Lastly, Flynn angles that the amended version of KRS
342 730(4) violates the prohibition against special legislation
pursuant to Section 59 of the Kentucky Constitution See LAMBERT, JUDGE, CONCURS
Parker, 529 S W3d at 770 However, he has failed to
advance his argument any further than merely claiming error TAYLOR JUDGE CONCURS INRESULT ONLY
Therefore, we have not been provided a sufiicient basis for
review Moreover, because the special legislation analysis All Citationsemployed in Parker so closely mirrored lts equai protection Not Reported in S W RP" 2020 WL 5083424
analySJS, we sunllarly hold that because there is no equal
Footnotes
1 Kentucky Revised Statutes
2 This case is currently pending before the Kentucky Supreme Court See Donathan v Town & Count/y Food Mart, No
202OWL 4507352 A discussion of the evidence is unnecessary because it is
Only the Westlaw citation is currently available Irrelevant to the issue raised on appeal Sufiice it to say that
Darnell was born in 1956, she filed her Form 101 on July
Unpublished opinion See KYST 17 2018 allegin a March 16 2016 work injury and there
RCP Rule 76 28(4) before clung is no dispute regarding the ALJ’s ultimate determination
consistent with the allegations of Darnell’s Form 101, that
NOT TO BE PUBLISHED Darnell was indeed permanently and totally disabled due to a
Court ofAppeals of Kentucky March 16 2016 work injury
Debra Sue DARNELL: Appellant As indicated the controversy surrounding this appeal
V involves the application ofthe newly enacted version 01°1st
342 730(4) to Dameil 5 award After the date of Darnell’s
Saputo DAIRY’ Hon Greg Harvey’ alleged work injury parks, 1 Webster CIy Coal LLC(Dot1kiAdmuusttatlve Law JUdge and Workers lime) 529 SW3d 759 (Ky 2017) was decided by the
Compensaton Board, Appellees Kentucky Supreme Couit There it was determined that the
versmn of KRS 342 730(4) in effect at the time of her injuiy
NO 2020 CA 000451 we was unconstitutional because it violated piinciples of equal
l protection That version provided in relevant part
JULY 10,2020, 1o 00 AMAll income benefits payable pursuant to this chapter shall
PETITION FOR REVIEW OF A DECISION OF THE terminate as ofthe date upon which the employee qualifies
WORKERS COMPENSATION BOARD ACTION NO for normal old age Social Security retirement benefits
we 16 39179 undertheUnited States Social Security Act 42 U S C sees
30] to 1397f, or two (2) years after the employee 5 injury
Attorneys and Law Firms or last exposure, whichever last occurs
BRIEF FOR APPELLANT Jeffery A Roberts, Murray When the Kentucky Supreme Court deemed this prov1510n
Kentucky unconstitutional in Parker, it did so on narrow grounds
BRIEF FOR APPELLEE SAPUTO DAIRY Stephanie D The Court noted this provision had been unsuccessfiilly
Ross, Ft Mitchell, Kentucky challenged before by litigants who had argued it violated the
so called “jural rights doctrine,” principles of due process,
BEFORE KRAMER LAMBERT AND TAYLOR, and equal protection But, equal protection was the only
JUDGES reason the Parker Court cited in favor of its conclusion
that the provision was unconstitutional Summarizrng its
conclusmn in that regard, the Court explained
OPINION The problem with KRS 342 730(4) is that it invidiously
KRAMER, JUDGE discriminates against those who qualify for one type of
retirement benefit (social security) from those who do not
*1 Debra Sue Darnell appeals from the Workers’ qualify for that type ofretirement benefit but do qualify for
Compensation Boaid which affirmed a January 25, 2019 another type ofretirement benefit (teacher retirement)
ordei of an administrative law Judge (ALI) granting her Parkei,529 s W3d at 769 (footnote omitted)
permanent total disability (PTD) income and medical benefits
for an injury she sustained to her sacral iliacjoint in the course On July 14, 2018, shortly before Darnell filed her Form 101,
and scope ofher work for appellee Saputo Dairy The entirety the General Assembly reSponded to Parker by enacting a
ofher appeal asserts for the several reasons discussed below, new version ofKRS 342 730(4) through its passage ofHouse
that the ALI improperly determined the most recent version Bill 2 This version provided a new benefit ceiling stating in
ofKRS 1 342 730(4) limited the duratiOn ofher award Upon relevant part that payments of income benefits were limitedreview, we affirm to “the date upon which the employee reaches the age of
_—______—_—_—.—________WESTLAW CC) 2020 Thomson Reuters No claim to original U 8 Government Works 1
Darnell v Dairy Not Reported in S W Rptr (2020)
2020 WL 4507352
seventy (70), or four (4) years alter the employee 5 injury or 342 730(4) IS retroactive, the Kentucky Supreme Court has
last exposure, whichever last occurs KRS 342 730(4) already resolved that issue See Holcmi, 581 S W 3d 37
*2 During the administrative proceedings below, Darnell Next, Darnell argues the new and current version of KRS
contested the retroactive application of the new version 342 730(4) is invalid special legislation” that violates
of KRS 342 730(4) to her claim, arguing the July 2018 Sections 59 and 60 of the Kentucky Constitution because
amendment to KRS 342 730(4) could not have retroactive it applies to injured older workers, but not all injured
effect because the General Assembly had not specifically workers And, for the same reasons, Dameil argues it
stated it was designed to have retroactive eEeth and because violates principles ofequal protection
it impaired the vested rights of injured workers FurtherDarnell argued that ifthe new and current versi0n of kRS With that said, this Court largely addressed those points
342 7J0(4) did not apply to her claim, other porhons ofthe act in Donal/Jan v Town and Country Food Mart, No 2018
or prior versions of KRS 342 730(4) that could otherwise CA 001371 WC 2019 WL 6998553 (Ky APP Dec 20take effect instead efi‘ectively entitled her to uncapped 2019) Although Donathan is unpublished and remains
workers’ compensation benefits for the fill] duration of her pending, we believe it fiilfills the requirement of CR 3
disability, 1 e , her lifetime 76 28(4)(c) for citation and guidance We find its reasoning
persuasive in the context of Darnell s arguments Although
But, in the January 25, 2019 order and award at issue herein, unpublished, we quote Donathan because it explains this area
the ALJ determined KRS 342 730(4) was intended to have ofthe law
retroactive effect Accordingly, the AL] limited Daniell’sbenefits to the date Darnell turned seventy years ofage In determining the constitutionality of a statute, courts
apply three different scrutiny levels strict, intermediate,
Darnell then appealed to the Board, arguing the ALI and rational basis Visual; Mining Inc v Gardner, 364
incorrectly applied KRS 342 730(4) retroactively to her S WM 455 465 66 (Ky 20”) The scrutiny level appliedclaim During the pendency of her appeal, however, the depends on the classifications made in the statute and
Kentucky Supreme Court rendered Holczm v Slt’llzfmd the interests 355‘:th [‘1 at 463 (citation omitted) said581 S W 3d 37 (Ky 2019), which continued the ALJ’s or intermediate scrutiny applies if a statute makes a
interpretation and application of KRS 342 730(4) Id at classification because of a suspect or quasi suspect class
41 44 Accordingly the Board afiiimed Id at 466 (citation omitted) If the statute merely afiects
social or economic policy, it is subject to the rational basis
We now turn to the substance of Darnell’s constitutional test Id (citation omitted)
arguments First, Darnell observes that when the General *3 Here, workers’ compensation benefits concern socialAssembly enacted House Bill 2 into law, it specrfied that some
and economic policy, thereby requiring the rational basrs
parts Of that legislation (such as the new and 6“”th verSion test Pallet 529 S W 3d at 767 (citation omitted) Courts
°f KRS 342 “0‘4” we“ “mg?“ m ”an“: ”imam” will uphold Home ifitpasses the rational basis test, whichwhereas other parts Of that legislation were desrgned only requires a “rational basis” or “substantial and justifiable
to operate prospectively Citing this fing Darnell appears to reason” supporting the classifications created Id (Citationassert that this disparity Violates constitutional pnncrples omitted) “Proving the absence of a rational basis or of a
substantial andjustifiable reason for a statutory provision isBut, Darnell cites no authority favorrng her posrtlon that ,,
a House Bill containing both prospective and retroactive asteep burden, however, It IS not an insurmountable oneId (citation omitted)
provrsrons is somehow unconstitutional House Bill 2
merely demonstrates that the General Assembly exercised Donathan argues KRS 342 730(4) is unconstitutional
its PICYOEafiVB to amend Kentucky’s workers’ compensation because of a perceived discrimination between oldersystem in different ways to address different problems and younger injured workers This argument triggers the
rational basis analysis based on the alleged discriminationDarnell’s next argument questions whether the General being age related
Assembly effectively enacted retroactive changes to KRS
342 730(4) through House Bill 2 In determining that KRS
that relates to classes of persons or subjects” In: ThereParker determuied the state’s interest in age related is a “simple, two part test for determining whether a law
disparate “came": 15 to (I) prevent duplication 0f constitutes general legislation in its constitutional sense (I)
benefits, and a) result m savings for the workers’ equal application to all in a class, and (2) distinctive and
compensation system Id at 768 The Kentucky natural reasons inducing and supporting the classification ”Supreme Court rejected the state’s argument the interest Id at 600 (citations omitted)
satisfied the rational basis test and ruled the 1996
version unconstitutional The Court held the statute *4 AS indicated above, KRS 342 730(4) does not
unconstitutional because it treated workers who qualified impermissiny differentiate between injured workers, it
for Social Security differently than those who did not The places a limit on the amount of benefits every injured
Court made the distinction that teachers who suffer work worker is awarded, not just a select group of individuals11318th injuries are not subject to KRS 342 730(4) because Moreover, there is a “diStlnCthB and natural reasons: that KRS
they do not participate 1” Social Security, as they have their 342 730(4) prov1des a cutoffand ceiling for benefits at eitherown retiiement program Therefore, the Court found the the age of seventy or four years alter the injury, whichever
statute unconstitutional based upon there being no rational is later At that age, injured workers are typically eligible
basis for treating other workers differently than teachers m for other income replacement income, such as old age Social
the commonwealth Security retirement benefits or, for teachers, a public pension
Here, the disparate treatment is no longer linked to Treating younger and older “31'ka differently in this
Social Security benefits Instead, the current and applicable zespect serves the rational legislative purposes 0f preventing
version ofKRS :42 730(4) states “[a]ll income benefits “pleat?“ °f bend?“ and mamtmmg the when” 0f weshall terminate as of the date upon which the employee workers compensauon system Parker, 529 S W 3d at 768
reaches the age of seventy (70), or four (4) years after the, ,, Darnell also asserts an ostenSible ‘due process argument
employee 5 injury or last exposure, whichever last occursShe contends
Applying the rational basis test, We find this version of theIn Goldberg v Kelly 397 U S 254 262 90 S Ct 1011
statute constitutional The legislators enacted this vers10n1017 25 L Ed 2d 287 (1970) the United States Supreme
in response to Parker We are also cognizant of the strongCourt held that a person receivmg welfare benefits under
presumption of constitutionality afl'orded to legislativeacts Brooks v Island Geek Coal Co , 678 S W 2d 791’ statutory and administrative standards defining eligibility
792 (Ky App 1984) (citations omitted) Accordingly, we for them has an interestmthose benefits that is safeguarded
find the statute, as enacted, does not treat similarly situated by procedural due process
persons difi'erently The statute allows for the benefits Clearly, workers’ compensation in Kentucky has statutory
to terminate upon reaching the age 0f 70’ or four years and administrative standards defining eligibility for thoseafler the employee’s injury, whichever occurs last This compensation benefits It is true that to have a property
stipulation rationally relates to the government’s basis for interest in a benefit, a claimant must have more than an
the legislation to save taxpayer dollars allocated to the abstract need or desire for it or a unilateral expectation of
workers’ compensation system It places a limit on the it Instead, they must havealegitimate claim ofentitlement
amount 0f benefits every person is awarded, not just a to it (See Board of Regents of State Colleges v Roth,select group of individuals Therefore we find the statute 408 U S 564 577 92 S Ct 2701 2709 33 L Ed 2d 548
constitutional ( l 972))
Id at *3
Darnell received an award from an Administrative Law
‘ Special legislation” is “arbitrary and irrational legislation Judge So, she has a legitimate claim of entitlement to the
that favors the economic self interest of the one or the few awarded benefits KRS 342 730(4) as efi‘ective July 14,
over that of the many ” Zucke) man 1’ Bevm, 565 S W 3d 2018, has the effect oftaking away benefits fiom Darnell
380 599 (Ky 2018) (citation omitted) In other words
special legislation ‘ applies exclusively to special or particular Darnell’s argument has no merit True, Darnell was awarded
places, 01 special and particular persons, and is distinguished workers’ compensation benefits And, Darnell is correct that
from a statute intended to be general in its operation, and aperson receiving benefits under statutory and administrative
standards has an interest in those benefits that cannot legislative act violated the contract impairment clause, we
be terminated in the absence of procedural due process are to utilize the following standard
Goldbelg 397 US at 267 90 S Ct at 1020 But despite
Damell’s frequent references to it,avio[ation of “procedural (1) whether the legislation operates as a substantial
due process” is not implicated in her argument She is not impairment Of a contractual relationship; (2) if so,
complaining that the workers’ compensation benefits she was then the inquiry turns to whether there is a significant
awarded were terminated because, indeed, they were not and legitimate public purpose behind the regulation,
Setting a51de its verbiage, the substance of her argument is 5‘10“ as the remedying Of a broad and general ”cm
that she would have been awarded more benefits if an earlier or economic problem, and (3) if: as in this case, the
version of KRS 342 730(4), rather than the current one, had government is a party to the contract, we examinebeen applied to her claim “whether that impairment is nonetheless permissible as
a legitimate exercise of the state’s sovereign powers,’
Essentially, Darnell’s complaint is that the retroactive and we determine ifthe impaiiment is “upon reasonableapplication of the current veision of KRS 342 730(4) conditions and of a character appropriate to the public
infiinged upon her rig/it to recover workers’ compensation purposejustifying its adoption ”
benefits pursuant to the statute in effect at the time of her Id at 369
injury In other words, she agieed to take part in Kentucky’s
workers’ compensation scheme and demands she receive the “The {fist step is determining whether the state law
benefits she was entitled to at the time she was injured and has, in fact, operated as a substantial impairment of
not pursuant to the new retroactive statute, which, taking the a contractual relationship 1d at 369 70 (citations
substance of her argument objectively, she believes to be an omitted)
invalid expostfacto lawA significant consideration in this step of the analysis is
And incidentally, that is exactly Darnell 5 next aignmcnt, the extent to which the industry subject to the contract
which she frames as a challenge under Section 19(1) of the has been regulated in the paSt The rationale for this rule
Kentucky Constitution and Article 1, Section IO, Clause 1 is thusly stated ‘One whose rights, such as they are, are
of the United States Constitution which prohibit laws that subject to state restriction, cannot remove them from the
impair the obligation of contracts power ofthe State by making a contract about them ”
With that said, this Court addressed and rejected that same Id at 370 (citations Omitted) Here we believe the new
point in the recent case ofAdams 1’ Excel Mining LLC, No law substantially impairs Appellant’s benefits Although2018 CA 000925 WC 2020 WL 864129 (Ky App Feb 21 the workers compensation scheme is heavin reoulated
2020) (unpublished), which we deem persuasive and believe past versions 0f KRS 342 730(4) have allowed a benefit
offcis sound guidance on this issue consistently with the recipient to receive benefits for life In fact, the 1994requirements of CR 76 23(4)“) In Adams, we explained in version that was to be applied allowed Appellantto receive
relevant part benefits for life, although they were subject to reduction
from time to time The current veision terminates benefits
*5 Despite the seemingly unequivocal language of once Appellantieaches 70 years of age
the federal and state Contract Impainnent Clauses,
[a] constitutional prohibition against impairing the The second Stage Of the analysrs involves aobligation of contracts is not an absolute one to be determination ofwhetherthe newly imposed conditions
read with literal exactness The Contract Clause does that impair the contract can bejustified by a significant
not prevent a state fiom enacting regulations or statutes and legitimate public purpose Among the purposeswhich are reasonably necessary to safeguard the vital that justify such impairment is legislation aimed at the
interests of its people ,, remedying of a broad and general social or economic
problem
Lime v Bd ofDirector 5for Cotiimamveaith Postsecondaiy
Educ Piepaid Tuition 77“ Fund, 559 S W3d 354 368 Id at 371 (Citations omitted) The Kentucky Supreme
(Ky 2018) (citation omitted) When detennining whethera Court has found that limiting the duration 0f benefits lsjustified by a legitimate public purpose The Court found
that limiting the duration of benefits solves two economic workers’ compensation ”Stem to the status quo Had the
problems “(1)itprevents duplication ofbenefits, and (2) it leglslature not acted, employees who Std] had workers’
results in savings for the workers’ compensation system” compensation Claims Whmh were not final between theParker, 529 S W3d at 768 This is evident from the fact rendering of Parker and the efi‘ective date of the current
some version of limiting the duration of benefits has been version 0f KRS 342 730(4) would be entitled to somein effect in Kentucky since the 1996 version of KRS amount ofbenefits for life This would have placedalarge
J42 730(4) financial burden on the workers’ compensation system
employers, and insurers Holcrm, supra, holds that the
The third stage of the analysis examines whether Kentucky Legislature specifically intended that the current
the adjustment of “the rights and responsibilities of VBI‘SiOIl OfKRS 342 730(4) apply retroactively AS wehavecontracting parties [is based] upon reasonable conditions found it is constitutional, we conclude that it applies in this
and [is] of a character appropriate to the public purpose case
justifying [the legislation’s] adoption ” Analysis under 14'. at *2 3
this prong varies depending upon whether the State is
a party to the contract When the State itself is not Our analysis set forth above disposes of the substance of
a contracting party, “[a]s is customary in reviewing Darnell’s argument. There is no reason to depart fiom the
economic and social regulation, courts properly sound reasoning in Adams
defer to legislative judgment as to the necessity and
reasonableness ofa particular measure In conclusion, Darnell has set forth no basis for holding KRS
342 730(4) unconstitutional Moreover, the Board did not
*6 Mme 539 S W 3d at 373 (citations omitted) The err in determining the AL] properly applied that statute tocontracts at issue here are not between individuals and Darnell’s award Thus, we AFFIRM
the state, but between an employee, an employer, and a
Mullins v Publishers Printing Company Not Reported in S W Rptr (2020)
2020 WL 3605844
error are moot We address only the last two arguments After
2020WL3605844 review, we affirm
Only the Westlaw citation is currently available
Unpublished opinion See KY ST BACKGROUND
RCP Rule 76 28(4) before citing
Jerry Mullins (Jerry) is a 63 year old man who sustained a
NOT TO BE PUBLISHED work related injury to his right uppei extiemity on March
Court oprp83.15 0f Kentucky 11 2015 The administrative law Judge (ALI) heard his
claim on May 10 2017 and awarded Jerry permanent partial
Jerry MULLINS’ Appellant disability benefits subject to the limitations set forth in KRS
V 342 730(4) ” Jerry appealed the ALJ’s decision regarding
PUBLISHERS PRINTING COMPANY; the constitutionality of KRS :42 730(4) relying upon the
Kentuc Su reme Court’s decision in Full [(421 v li’ebslei
Tanya Punt“, AdmlmStmhve Law Count) kCyoal Kim (Donia Mme) 529 s W3d 759 (Ky 2017)Judge, and Kentucky Workers’
Compensation Board, Appellees The Parker decision led to the Board 5 recalculation ofJerry 5
income benefits based on the 1994 version of the statute,
NO 2018 CA 000644 WC instead of the 1996 version since held unconstitutional The
1 1994 version includes 3. tier down” calculation, wherein the
JUNE 26, 2020, 10 00 AM court calculates the injured party’s benefits by reducing their
benefits 10% when the party reaches 65, and 10% each year
PETITION FOR REVIEW OF A DECISION OF THE alter that until the party reaches the age of 70 For workers 65
WORKERS COMPENSATION BOARD ACTION N0 and older at the time ofinjury there is no tier down reduction
WC 15 89349 The Board vacated the ALJ’s award ofbenefits subjected to
the limitations as set forth in KRS 342 730(4) and remanded
Attorneys and Law Firms for a revised calculation using the tier down approach
BRIEF FOR APPELLANT Stephanie N Wolfiiibar erLouisville Kentucky Responding to Parker the legislature passed and the
governor Signed, House Bill 2 which amended KRS
BRIEF FOR APPELLEE PUBLISHERS PRINTING :42 730(4) House Bill 2 terminates income benefits upon
COMPANY Andie B Camden, Louisville, Kentucky turning seventy years of age or four years afler mlury,whichever last occurs, and includes a provision indicating
BEFORE ACREE DIXON AND K THOMPSON retroactivity The House Bill became effective July 13 2018
JUDGES Jerry now appeals
OPINION STANDARD OF REVIEW
ACREE’ JUDGE The Court reviews questions of law, such as the
*1 Jerry Mullins appeals the decision of the Workers’ constitutionality Of statutes using the de "0W standard U SCompensation Board (Board) alleging that (l) the Board BaiikHome Maifgagev Schreckei 455 S W 3d 382 384 (Ky
l q 2014) When determining the constitutionality of legislation,
erred In ”“ng the 1994 verge” 0f 1?“ J42 730(4)’ the court’s sole duty is to ‘lay the article of the constitution
(2) the 1994 ms?“ °f KRS 34° 730(4) 35 ““°°“S‘ft“tf°“a" which is invoked beside the statute which is challenged and(3) the 2018 versron of KRS 342 730(4) is unconstitutional; ,,
to deCide whether the latter squares With the former Fisca!
and (4) the retroactive application 0f the 2018 “filo“ KRS Caz/1t ofJefl'ei son County v City ofLouisville 539 S W2d:42 730(4) 1S invalid Because the most recent iteration of
KRS 342 730(4) governs this review the first two claims of 478 481 (Ky 1977) We take care not to weigh the merits 0f’ the legislative policy, and instead focus only on whether the
WESTLAW (C) 2020 Thomson Reuters No claim to original U 8 Government Works 1
Mullins v Publishers Printing Company, Not Reported in s W Rptr (2020)
2020 WL 3605844
legislation is “in accordance with or in contravention of the be served With a copy of the pleading, paper or other
provisions of the constitution ’ Id (citation omitted) documents which initiate the appeal in the appellate forum
This notice shall specify the challenged statute and the
nature ofthe alleged constitutional defect
ANALYSIS KRS 418 075(2) (emphasis added) Like the first subsection
of KRS 418 075, this second subsection is equally 111 suited
The newly enacted KRS 342 730(4) states [an] income to workers’ compensation claims That is because ordinarily
benefits shall terminate as of the date upon which the the document[] WhiCh initiate[s] the 31313931 in the appellate
employee reaches the age of seventy (70) or four (4) years forum” is a notice 0f appeal Notices 0f appeal are filed
afier the employee’s injury or last exposure, whichever last months before the appellant’s brief is due That allows quite
occurs ’5 Jen-y s only two remaining arguments are that this a bit oftime for the Attorney General to review a record and
version of KRS 342 730(4) is unconstitutional and that it decide whether to move thls Court to intervene 1“ the appeal
cannot be applied retroactively Both arguments fail as a matter of right CR 9 24 01(2)
*2 The legislature says a statute’s constitutionality is an This Court’s review of decisions of the Workers’
issue that, at least typically, first needs to be raised in Compensation Board is not initiated by a notice of appeal
the tribunal first deciding the case KRS 418 073(1) (‘In It is initiated by a “petition for review, ’ CR 76 25(2), and
any proceeding which involves the validity of a statute, that makes the initiating document and the brief, effectively,
the Attorney General of the state shall, before judgment one and the same However, special provision is made
is entered be served with a copy of the petition ”) The for constitutional challenges of decisions by the Workers’
Courts agree Glidei v Caiiiinomvealili, 404 S W 3d 859 Compensation Board, asfollows
(Ky 2013) (holding that raising a constitutional issue forthe first time on appeal is insufficient) (citing Benet v In any case in which the constitutionality of a statute is
Commomveallh, 253 S W 3d 523’ 532 (Ky 2008)) ( [W]e questioned, a copy of the petition and response shall be
reject any contention that merely filing an appellate brief, served on the Attorney General 0f the Commonwealth
which necessarily occurs postjudgment, satisfies the clear by the party challenging the validity 0f the statute Therequuements ofKRS 418 075 as) Attorney General may file an entry of appearance within
ten (10) days of the date of such service If no entry of
However, that cannot happen under the modern scheme of appearance is filed, no further pleadings need be served on
addressing workers’ compensation claims in which the first the Attorney General
court to consider such claims is this Court ofAppeals More CR 76 25(8)
significantly, the Workers’ Compensation Board and ALJs
lackJurisdiction to determine the constitutionality of a statute Therefore unlike civil appeals WhiCh allow the Attorney
See Austhowa'ei Company v Stacy 495 SW3d 732, 735 General ““311 time between the filing 0f the initiating
(Ky App 2016) Blue Diamond Coal Co v. Comett 300 Ky document and the brief, 1n workers’ compensation appeals,
647 189 s w 2d 963 (1945) The first subsection of KRS the Attorney General must decide in ten (10) days to file an418 075, therefore, cannot be strictly followed entry 0f appearance a much shorter period than in civil
appeals for the Attorney General to decide whether to defend
The first opportunity to raise a constitutional challenge is the Commonwealth’s Shaun“ However the ten day windowin this Court The first step in that process is still timely is not too shortatime for the Attorney Generalto act While
notification to the Attorney General whose role is to defend allowing the Attorney General a reasonable time to respondthe statute H0161)?!" Swmford 581 S W3d 37 44 (Ky 2019) is the better practice, neither the statute [KRS 418 07)] nor
Provision for that notification is found in KRS 418 075(2), the rule [CR 243] establish a period of delay betWeen the
which says notice [of constitutional challenge of a statute] and the entry
ofjudgment’ or rendition of an opinion on appellate review
In any appeal to the“We” C°m1°fAPPeah 01 Supreme ofthatJudgment Hmkle v Commoim'ealth, 104 s w 3d 778,Court or the federal appellate courts in any forum which 780 (Ky App 2002) The Supreme Court has made plain
involves the constitutional validity ofa statute, theAttomey “that KRS 413 075 is mandatory and that strict enforcement
General shall before the filing of the appellants brief of the statute will eliminate the procedural “1106113an 3:
Mullins v Publishers Printing Company Not Reported in S W Rptr (2020)
2020 WL 3605844
Money v. Mary Cliiles Hosp 785 S W 2d 480, 482 (Ky a statute if it passes the rational basis test, which requires
1990) As nearly as possible, Jerry strictly complied with a “rational baSis” or “substantial and justifiable reason’
the statute given the rules that govern this Court 5 review of supporting the classifications created “Proving the absence
constitutional challenges ofthe workers’ compensation laws of a rational basis or of a substantial and justifiable reason
CR 76 25(1 (“Pursuant to Section 111 2 of the Kentuc for a statutory rovision is a stee burden, however, it isP PConstitution and SCR 1 030(3), deci51ons of the Workers’ not an insurmountable one” Id (citation omitted) Jerry
Compensation Board shall be subject to direct review by argues that KRS 342 730(4) is unconstitutional because of a
the Court of Appeals in accordance with the procedures discrimination between older and younger injured workers
set out in this Rule ) Ky Const 111(2) ( The Court of
Appeals shall have appellatejurisdi'ction to review directly The Supreme Court made it clear that Parker addresses “the
decisions of administrative agencies ), SCR 4 1 030(3) equal P’f’teCfiOh problem With KRS 3:12 730(4) that(“Final decisions of the Workers’ Compensation Board are treats “humid older workers who qualify for normal 01dsubject to review by the Court ofAppeals in accordance with age Soc1al Security retirement benefits differently than it
procedures set out in the Rules ofCivil Procedure ”) Because treats injured older workers who do not qualify” 1‘1 at 768
the Attorney General was properly served, this Court can Before saying so, however, the C011“- S‘hd the parties hadaddress Jerry’s argument regarding the constitutionality ofthe argued the wrong q“e5h°h The“ focus was ‘ on the Percelved2018 version ofKRS 342 730(4) discrimination between injured older workers and injured
younger workers ” Id at 767 The Court then said
*3 We are cognizant of the strono presumption ofti at h f tr tin (1 1d k
constitutionality afl‘orded to legislative acts Keith v Hopple The E on was or ca gyoungeran 0 er wor ersPlashes 178 S W 3d 463 468 (Ky 2005) overruled on differently is (l)itprevents duplication ofbenefits and (2)
othe mantis b For Aer v Webstei County Coal LLC it results in savmgs for the workers’ compensation systemr !
(Datikinge) 52: S W 3d 759 (Ky 2017) When a statutory Undoubtedly both of these are rational bases for treating
th h b d th h 1 fl d f a1provision results in disparate treatment, we must consider s:;:l‘:e:hriat:ere:i:m:i: hihefizfiiclli‘iient‘ly gulls?“
the 14th Amendment of the United States Constitution andwho, based on their age, have yet to do so
SEEMS 1, 21:11:? 3 01f the Khnmcfiy gristitution The $211 Id. 21767 68 Although this is dicta because that specific issue
° The ”as “m WWI.“ ‘8 a” ”meme" was not before the Court in Parker, it is consistent with thisdecision makers fiom treating differently persons who are in
Court’s analySis ofthe issue which now is squarely before itall relevant respects alike while recognizmg that nearly all
legislation differentiates in some manner between difi‘erent The newly enacted KRS 342 730(4) states “all income
classes of persons” Parker, 529 S W3d at 767 (internalbenefits shall termmate as of the date upon which the
quotation marks and brackets omitted) (quoting Vinonemployee reaches age seventy (70) or four (4) years alter the
Mining Inc v Gardner 364 S W3d 453 465 (Ky 2011))employee 5 nijuiy or last exposure, whichever last occurs
J 1 th ftual lals othattheIn determining the constitutionality of a statute, courts apply err-y sunp y argues WI no ac or tag upp n,a“ d if t t l l tric inte d t d new verSion continues to result in disparate treatment and
ratifnallb eren chggzcmeg: glove: a @1in (1:11:11: 21:; asserts that the statute’s new version neither saves money nor
2.1515 y pp p prevents duplication ofbenefits We cannot agree with JerryclaSSifications made in the statute and the interests affected
Id Strict or intermediate scrutiny applies if a statute makes a *4 “In considering an equal protection challenge a court
classification because of a suSpect or quasi suspect class Id. ’does not engage in accounting of debris and credits, rather
If the statute merely affects socral or economic policy, it isb ect to the rational basis test Id the court must exarnine whether Similarly Situated mdiViduals
S“ J have been treated differently and, ifso, whether or not such
‘W k , e ti tamte concern an f a1 treatment is rationally related to a legitimate state interest”
a“ as ”up Ii“ 0:5 s I hm Slit: 5°” t Parker, 599 SW3d at 769 (quoting Vision Mining, 3643” 6mm” 1” my 5 a res“ 5‘": a S ‘5 m s w 3d at 474 (internal quotation marks omitted; originalsubject to strict or [intermediate] scrutiny and therefore ca i”mafia“ restored))
must be upheld if a rational basis or ‘substantial and P
justifiable reason supports the classtfications that it creates Applying the rational basis test, we find this version 0f the
Id (internal quotation marks omitted) The Court Will upholdstatute constitutional The legislators enacted this verSion
Mullins v Publishers Printing Company Not Reported in S w Rptr (2020)
W
in response to Parker, and we are cognizant of the strong recently said, “the newly enacted amendment applies
presumption of constitutionality afforded to legislative acts retroactively ” H01cm), 581 S W 3d at 44
Keith 178 S W 3d at 468 Accordingly we hold the statute as
enacted, does not treat Similarly situated persons differently
The statute allows for the benefits to terminate upon CONCLUSION
reaching the age of 70, or four years after the employee’s
injury, whichevei occurs last It cannot be disputed that the The M31011 30, 2018 opinion 0f the Board vacated 316 AL“
provision rationally relates to a cost savings for the workers’ order and remanded the claim for entry ofan amended awardcompensation system It places a limit on the amount of of PPD benefits and for clarification of the length of the
benefits every person is awarded, not just a select group of award For the foregoing reasons, we affirm that opinion
individuals Here, to the extent there is disparate treatment
between younger and older workers, that disparate treatment
is rationally related to that cost savings provision ALL CONCUR
We can dispatch Jerry’s last argument regarding ret10activity All Citations
easily Addiessing KRS 342 730(4), our Supteme CourtNot Reported in S W Rptr 2020 WI. 3605844
Footnotes
'1 Kentucky ReVIsed Statutes
2 Kentucky Rules of Civil Procedure
3 Whether the Attorney General may proceed outside the ten day window by a timely motion to intervene pursuant to CR
24 01(2) is not before this Court because the Attorney General did not move to Intervene
system by limiting the duration of benefits for older injured
First, Massey argues the amended version ofKRS 342 730(4) workers Massey does not argue that any other groups of
violates the equal protection clause of the Kentucky and injured workers are subject to disparate treatment under
United States Constitutions However, Massey does not the statute As such, we hold retroactive application of the
articulate how the statute results in disparate treatment of amended version of KRS 342 730(4) does not violate the
injured workers without reasonable justrfication We will not equal protection clause of the Kentucky and United States
attempt to construct an argument for Massey, but the only Constitutions
conceivable disparate treatment under the statute rs among
older and younger injured workers In Pal/re: v Webster Second, Massey argues retroactive application of KRS
County Coal LLC (Dank: Mme) 529$ W3d 759 (Ky 2017) :42 730(4) limiting the duration of her income benefits
the Supreme Court of Kentucky held the 1996 version of violates the contracts clause of the Kentucky and United
KRS 342 730(4) violated the equal protection clause because States Constitutions Massey cites to Ma e v Board of
it “treat[ed] injured older workers who qualrfy for normal Directors for Commmmeaitlr Postsecondaiy Education
old age Social Security retirement benefits differently than Prepaid Tuition Dust Fund 559 S W3d 354 (Ky 2018),
it treat[ed] rnjured older workers who do not qualify Id at in support of her proposrtion that “[a]pplying legislative
768 The Court also addressed “the perceived discrimination changes retroactively to a contract in derogation of a party’s
between injured older workers and injured younger workers ” rights violates the contracts clause of the United States and
1d at 767 Applying the rational basis test, our Supreme Court Kentucky Constitutions Appellant’s Brief at 3 We disagree -
held the statute’s disparate treatment of older and younger with Massey that a properly applied Maze analysis supports
injured workers did not violate the equal protectron clause her argument I
The Court reasoned
*2 [U]nder the statute, a worker who is injured more Under Maze, w? must apply the followmg three stepanalysrs to determrne whether retroactive applrcatron ofKRS
than 425 weeks (or 520 weeks under certain circumstances)J42 730(4) to Massey’s award Violates the contracts clause
before he or she reaches normal Socral Security retirement
age Will receive all Of the permanent partial disability (1) whether the legislation operates as a substantial
income benefits to which he or she 15 entitled A worker impairment of a contractual relationship, (2) if so then
who rs injured less than 425 weeks before he or she reaches the inquiry turns to whether there is a significant and
normal Social Security retirement age Will not receive legitimate public purpose behind the regulation such as
all Of the permanent partial disability income benefits to the remedying of a broad and general social or economicwhich he or she is entitled The rational bases for treating problem, and (3) if, as in this case, the government
younger and older workers differently is (I) it prevents is a party to the contract, we examine whether that
duplication of benefits, and (2) it results in savings for the impairment is nonetheless permissible as a legitimate
workers’ compensation system Undoubtedly both ofthese exercise ofthe state’s sovereign powers,” andwe determine
are rational bases for treating those who, based on their if the impairment is “upon reasonable conditions and of a
age, have qualified for normal Social Security retirement character appropriate to the public purpose justifying its
benefits drfierently from those who, based on their age, adoption‘
have Yet to do 5° Ma e, 559 s W3d at 369 (citation omrtted)Id at 768 (footnote omrtted)
The first step requires us to determrne ‘whether the state
The amended version of the statute no longer treats older law has, in fact, operated as a substantial impairment of a
injured workers who qualify for Social Security retrrement contractual relationship” Id at :69 70 (citations omitted)
benefits differently than it treats those who do not qualify Here, Massey points out that pastversions ofKRS 342 730(4)
However, there is a ratronal basis for treating older rnjured allowed a benefit recipient to receive benefits for life Under
workers differently than younger rnjured workers Although the 1996 version of the statute, Massey asserts she would
the provisions for duration 0f benefits difl'er between the have received an award of425 weeks, or approximately eight
19% and 2018 “31510“ 0f KRS 347 730(4), both set limits years, of PPD benefits, but the current version limits the
on the duration of benefits for all rnjured workers As duration of her award to four years As such, retroactive
in Parker, the statute prevents duplication of benefits and
alleviates the financial burden on the workers’ compensation
application of the amended version of KRS 34., 730(4) reasonable to alleviate the financial burden on the workers’
substantially impairs Massey’s rights compensation system
*3 The second step requires a “determination of whether Based on this analysis, we hold retroactive application of
the newly imposed conditions that impair the contract KRS 342 730(4) is reasonable and appropriate We reach thecan be justified by a significant and legitimate public opposite holding of Maze for two key reasons (1) them was
purpose Among the purposes that justify such impairment no legitimate public purpose justifying the action and (2)
is legislation aimed at the remedying of a broad and general the State was a 13w to the contracts at Issue 1d at 37’ 72
social or economic problem ’ Id at 371 (citations omitted) AS preVIously discussed lunitmg the duration Of benefitsThe Supreme Court of Kentucky has found limiting the has been a part of the workers’ compensation system Since
duration ofbenefits isJustified byalegitimate public purpose 1996 Parker held the disparate treatment 0f older injuredLimiting the duration of benefits solves two economic workers who qualified for Social Security benefits and those
problems “(1) it prevents duplication of benefits; and (2) who did not qualify Violated the equal protection clause
it results in savings for the workers’ compensation system ” Howevei, Parker approved ofthe age based limitation 0? theParker 529 S W 3d at 768 This is evident because some duration of benefits The Kentucky Legislature acted quickly
veision of limiting the duration of benefis has been in effect to amend KRS 342 730(4) after Parker was rendered Had nin Kentucky since the 1996 version ofKRS 342 730(4) not acted, employees who had active workers’ compensation
claims between the rendering of Paiker and the efi‘ective
The third step requires us to determine date of the 2018 amendment to the statute could have been
entitled to some amount of benefits for life This would have
whether the adjustment of “the rights and responsibilities placed a large financial burden on the workers’ compensation
ofcontracting parties [is based] upon reasonable conditions system, employers, and insurers Holczm held the Kentucky
and [is] of a character appiopriate to the public purpose Legislatuie specifically intended the cunent version of KRS
Justifying [the legislation’s] adoption ”Analysis under this 342 730(4) to apply retroactively HOICFI’h 531 S \V 301 37prong varies depending upon whether the State is a party Thus, we hold reuoactive application ofthe 2018 amendment
to the contract When the State itself is not a contracting to KRS 342 730(4) does not violate the contracts clause ofthe
party, “[a]s is customary in reviewing economic and social Kentucky and United States Constitutions
regulation, courts properly defer to legislativejudgment
as to the necessity and reasonableness of a particular For the foregoing reasons, we affirm the Opinion of the
measure ” Workers’ Compensation Board
Us) 8 559 S W 3d at 372 (citations omitted) Here the
contract at issue is not between an individual and the
state, but between an employee, an employer, and a ALL CONCUR
workers’ compensation insurance prOVider As such, we
defer to legislative judgment and presume the enactment All Citations
of the amended version of the statute was necessary andNot Reported in S W Rptr 2020 WL 3401145
Footnotes
1 Utilizing the Maze analysis this Court previously held retroactive application of KRS 342 730(4) does not violate the
contracts clause in two recent unpublished opinions Adams v Excel Mining LLC No 2018 CA 000925 WC 2020
WL 864129 (Ky App Feb 21 2020) (pending revrew by the Supreme Court of Kentucky) and Helton v TM Power
Enterprises Inc No 2019 CA 001757 WC 2020 WL 2095875 (Ky App May1 2020)
Bean v Collier Electric Service, Not Reported in S W Rptr (2020)
2020 WL 2603597
injury Bean sustained while working as an electrician for
2020 WL 2603597 appellee Collier Electric Service, Inc Bean later appealed
Only the Westlaw citaton is currently available to the Workers’ Bumpensation Board, arguing the eVldence
compelled a finding that his left shoulder injury rendered
Unpublished opinion See KY ST him incapable of returning to the same type of work he had
RCP Rule 76 23(4) before clung performed pre injury, thereby entitling him to the “three”
multipliei benefit enhancement set forth in Kentucky Revised
C NOT:2 BEaiUiIéSHED Statute (KRS) 342 7.:0(1)(c)1 ' or alternatively that his leftourto ppe S 0 entucky shoulder injury rendered him incapable of retummg to any
ll work, thereby entitling him to permanent total disability
Ronnie BEAN’ Appe ant benefits Additionally he argued that the current version of
V KRS 342 730(4), which provided a limit to the duration ofhis
COLLIER ELECTRIC SERVICE; PPD was unconstitutional Upon review the Board affirmed
Bean now appeals to this Conn, upon leview, we likewiseAttorney General Daniel Cameron, affirm
Hon John McCracken, Adininistrative
Law Judge; and Kentucky Workers’ Bean made his living for fifty years working as an electrician
He also performed occasional odd jobs and has experience
Compensation Board’ Appellees driving commercial trucks Bean filed a Form 101 on or about
February 22, 2018, alleging he had sustained a shoulder injuryN0 2020 CA 000 21 WC
l 3 while working for Collier at ajobsue in Blandvrlle Kentucky
MAY 22 2020 10 00 AM on February 20 2014 At the time of his injury he was sixty
’ ’ eight years ofage He and a co worker were installing a cable
PETITION FOR REVIEW OF A DECISION OF THE tray trying to line it up to bolt it in' the two men were
WORKERS COWENSATION BOARD ACTION NO pulling the tray in opposite directions and Bean injured his
WC 14 84038 lelt shoulder when his co worker “jerked it” from him
Attorneys and Law Firms Beginning July 2014 Bean sought treatment for his left
shoulder injury at Vanderbilt University Medical Center
BRIEF FOR APPELLANT Geordie Garatt, Paducah, Much of the controversy regarding the level of Bean’s
Kentucky impairment stems from a March 14, 2016 office note and list
BRIEF FOR APPELLEE COLLIER ELECTRIC SERVICE of work restrictions from one of Bean 3 treating phySiclans
INC R Brent Vasseur Paduoah Kentucky Dr John Kuhn Dr Kuhn is an orthopedic surgeon and the
’ ’ only medical piofessional who provided an impairment rating
BRIEF FOR ATTORNEY GENERAL DANIEL associated with Bean 5 February 20 2014 injury His note
CAMERON 3 Chad Meredith, Solicitor General, Matthew documented not only the nature and treatment of Bean’sF Kuhn, Deputy Solicitor General, Frankfort, Kentucky February 20, 2014 injury, but also summarized subsequent
medical issues that had affected Bean’s overall condition InBEFORE COMES KRAMER, AND L THOMPSON relevant part the note states
JUDGES
Ronnie Bean is well known to me He is a 70 year
old electrician who had been treating smce 2007 for
OPINION his shoulders His right shoulder had a resurfacing
hemiarthroplasty done in June 2008 for rotator cuff tear
KRAMER JUDGE arthropatlly He did get a little bit weak alter that in 2012
* and undeiwent physical therapy and although that shouldei
(All?) feplsmber 2d1 2013 den admlnfi'ritl: I?” lgdge has given him a little bit ofdiscomfort generally and [sic]en ere an or er awar mg appe a" on“: can done well through the years He has had good function and
permanent partial $533111? bang: (:1;i))t:aseld 39:1“ 313% good range of motion until recently His left shoulder hadpermanen impau'rnen ra mg a 1 u e a e s on er
Bean v Collier Electric Service, Not Reported in S W Rptr (2020)
2020 WL 2603597
a work related injury and we saw him for that on July 15, would be happy to see him back if he has any questions or
2014 We tried physical therapy without success An MRI problems in the firture
scan showed a bursal sided near full thickness rotator cuff
tear affectingthe supraSpinatus and on October 20,2014we The focus of this matter is a February 20, 2014 injury to
performed a repair of that small full thickness rotator cuff Bean 3 left shoulder With that in mind, Dr Kuhn’s office note
tear By March 2015, he had reached his maxrmal medical which comprises the bulk ofthe medical evidence adduced
improvement He was released to work without restrictions in this matter under cuts the notion that Bean’s February 20,
and on the fifth edition to the AMA guidelines had an 8% 2014 injury to his lefl shoulder prevented him from returning
upper extremity impairment rating for the left shoulder, to his pre injury work as an electrician In Dr Kuhn’s View,
whrch equated to 215% whole person impairment rating Of Bean’s left shoulder had as of March 2015, recoveted as
note, he has also had [sic] history of cervrcal arthritis and well as It would ever recove; (i e , had reached “maximal
has received neck injections for that problem medical improvement”) and, in so doing, required no work
restrictions Indeed on March 16, 2016, Dr Kuhn remarked
*2 He retumedtosee me approximatelyémonths afterhis that Bean’s lefl: shoulder was doing “fairly well”, Bean’s
reaching theW and he failed nonoperative treatments pain in that region was “significantly better", his elevationWe obtained a new MRI scan, which showed his rotator and rotation was “fairly good”; and Bean had “excellent
cufftear had progressed significantly We took him back to strength[ 1”
the operating room on November 17, 2015 whereas rotator
cuff tear had extended over the biceps tendon was more By contrast, Dr Kuhn emphasrzed that Bean had suffered
ofa full thickness tear and we repaired that He has gone a stroke or “cerebrovascular accident” at some point after
through physical therapy since November 17 During his November 17, 2015, which had affected Bean’s speech andpostoperative course, he had a cerebrovascular accident caused him to lose tsome strength and fimction in his right
and has a bit of an expressrve aphagia In addition, he has arm” Bean had less mobility in his right arm, and Bean’s
10“ some strength and function “1 his right arm right hand was weak Dr Kuhn believed Bean’s right arm
With regard to his left shoulder, he seems to be doing might nor have recovered as well as It would ever recover
Specifically, D1 Kuhn stated he was rssumg Bean workfauly well He has a little bit of discomfort rarsrng his
restnct1ons “related more to his stroke that rs not workarm, but overall his pain is srgnrficantly better Hrs forward ”
elevation rs 180 degrees, external rotation is 45 degrees, relatedP] if“ “"1153th he might later amend those workand internal rotation is fairly good He has excellent restrictions ifBean recovers enough to go back to work[]
strength on strength testingIn line With his statement that Bean 5 cerebrovascular accident
His right shoulder is fimctioning a little bit better He has and fight arm afiected Bean’s ability to work, Dr KW issued
forward elevation to about 160 degrees His hand rs still a list ofwork restrictions on March 14, 2016, referencing his
weak and his speech is a little bit better, but not a lot better Office note, prefaced With the followrng relevant notations
He 15 still getting Speech therapy for that problem *3 Diagnosis L CUFF REPAIR
With regard to his Ieft shoulder, he has reached his maximal
medical improvement I would keep his impairment rating
the same at 8% for the upper extremity and 5% for the Physically unable to do any type of work at this timewhole person I think his limitations to go back to work will Yes X Until TBD
be related more to his stroke that is not work related and rs
under his primary insurance for treating that Ifhe recovers Remarks/Special Instructions RELATED TO CVA R
enough to go back to work, but is having trouble, he will M
return to see me and we will determine what restrictions he
might need, but at this pointI do not think he is likely to Two of the three restrictions Dr Kuhn issued Bean provide
head back Given the dysfunction he has in his right hand, no real controversy in this matter they limited Bean to lifting
it would be difiicult for him to work as an electrician I and carrying up to ten pounds “occasionally (up to 33%)”
did not make an appointment to see him back, but certainly and only occasronally (up to 33%)” reaching above shoulder
level With that said, Bean argued his lefi shoulder injury
Bean v Collier Electrrc Service, Not Reported in S W Rptr (2020)
2020 WL 2603597
nevertheless entitled him to the “three” multrplier benefit 'Worker CANNOT use hands for repetrtrve tasks as
enhancement set forth in KRS 342 730(l)(c)1 because Dr indicated
Kuhn’s third restriction provided
Simple Grasping Pushing and pulling
Right
Left X
In his various briefs before the ALL the Board, and “PW Mr Bean testified that his job required him to Iifi heavy
this Court, Bean has asserted this restrrctron “had “Othmg objects, to work injunction boxes and to work with wiresto do with his old right shoulder injury, or with his stroke,” Mr Bean stated that he could not reach out or have the
and that this restriction taken in conjunction with Bean’s strength to push and pull objects away from his body He
own testimony that it was actually the condition of hrs left stated that he could hold agallon of milk next to his body
shoulder that causes him the most difficulty and gave rise to He had difficulty holding it away from his body He stated
his restrictions, “would seem to compel a finding that [he] that his inability to get in and out of heavy comme1cia1
could not return to work as an electrician or for any position trucks was due to his inability to climb
that is not sedentary in nature,” due to his February 20, 2014
left shoulder injury *4 The AL] is not convinced by Mr Bean’s testimony that
his left shoulder surgeries alone would prevent him from
The ALJ ultimately rejected Bean’s argument, determining having the physical capacity to return to his former type
that ifBean was unable to return to work as an electrician, the of work as an electrician On March 11, 2015, Dr Kuhn
evidence was not convincing enough to demonstrate Bean’s had no plans to see him in the future in regards to the lefi
inability was due to Bean’s February 20: 2014 work injury shoulder The March 14,2016 note states that on March 11,In the September 21, 2018 opinion and order at issue in this 2015, Dr Kuhn releaseer Bean to return to work without
matter, the AL] explained in relevant part restrictions as relates to the left shoulder The ALJ realizes
that he had a second surgery in 2015 to his Iefi shoulder
Dr John Kuhn has been Mr Bean’s treatmg physician He Dr Kuhn d1d not clarify whether the restrictions were onlyis the only doctor to assign an impairment The ALJ relies to the left shoulder
on Dr Kuhn, and Mr Bean’s testimony, to find that Mr
Bean has a 5% impairment as a result of that injury The ALI relies on Dr Kuhn to find thatMr Bean retains the
physical capacity to return to the type ofwork he performed
Mr Bean stated that he did not believe he could return to on February 20, 2014, as aresult ofthe left shoulder injuryhrs work because ofhis left shoulder However, the medical The ALJ finds that Mr Bean is not entitled to a multiplier
proof regarding his lefi shoulder restrictions are not so based upon KRS J42 730(1)(C)1
clear The AL] is mindful of his stroke and right shoulder
injury However, contrary to Mr Bean 3 testimony, the Followrng a petition for reconsideration from Bean, m which
restrictions “5th by Dr K1111“ only SPCCify that he cannot he asked the ALT to reconsider applying the three” multiplier
use his hands for repetitive tasks involving pushing and benefit enhancement to his award or awarding him permanent
pulling as relates to the left side The wording Of the total disability, the ALI entered an October 15, 2018 order
restrictions is important due to Mr Bean having medical reiterating his prior findings and once again denying Bean’sproblems with both shoulders as well as a prior stroke requests, adding “Dr Kulm does not single out the left
Dr Kuhn HOW! the CVA [cerebrovascular accident] on the shoulder as the reason Mr Bean is tumble to return to his priorwork restrictions Hrs failureto specifically mentionthe left work as an electrician To the contrary, Dr Kuhn seems more
shoulder, except in one section, leads the AL] to believe concerned with the prior CVA and right hand, than [Bean’s]
that he included both shoulders in the work restrictions lefi sh0111der ,,
listed
Thereafter, Bean appealed this determination to the Board,
which affinned He now appeals to this Court, argurng the
Bean v Collier Electric Service, Not Reported in S W Rptr (2020)
2020 WL 2603597
ALI 5 failure to apply the “three” multiplier to his award, or
failure to alternatively find him permanently totally disabled, *5 A“ Income benefits Payable Pursuant to “115 Chapterqualifies as reversible error shall terminate as of the date upon which the employee
qualifies for normal old age Social Security retirement
We disagree As the claimant in a workers’ compensation benefits under the United States Social Security Act, 42
proceeding, Bean had the burden of proving each of the U S C secs .301 to '39”, or two {2) years after the
essential elements of his claim and likewise carried the iisk employee’s "‘me 0‘ last exposure, whichever last occurs
of non persuasion Shanda: v Stice, 576 S W2d 276, 279(Ky App 1979) Because Bean was unsuccessful below, When the Kentucky Supreme Court deemed this prowsron
the question on appeal is whether the evidence compels a unconstitutional 1“ Parker, 1t dld so on narrow grounds
different result Wolf Creek Collienes v Cmm, 673 SW2d The Court noted this ”“1510" had been unsuccessfully735 736 (Ky App 1934) In order to rise to the level challenged before by litigants who had argued it violated the
of compelling evidence, and thereby justify reversal of so called “jural rights doctrine, principles of due process,
the ALJ under this circumstance, the evidence must be so and equal protection But, equal protection” was the only
overwhelming thatno reasonable peison couldreach the same reason the Porter Court cited in raver Of Its ”Hang?“
conclusion as did the ALI ” 61068 v Van Meter Contiactmg that the proVISIOn was unconstitutional Summarizmg “5
Inc 539 s w 3d 677, 682 (Ky 2018) (citations omitted) The °°"°1u510n In that regard: the Com explainedfunction of the Board and this Court in reviewing the AL] 5 The roblem with KRS 34,) 730(4) is that it invidiousl
decision is limited to a determination ofwhether the findings p ymade by the AL] are so unreasonable under the evidence they discriminates against those who qualify for one type of
must be reversed as amatter of law IiaA Watson De 't Stale retirement benefit (social security) from those Who do notH II 34 S W3d 48 52 (K 2000) p qualify for that type ofretirement benefit but do qualify for
v amt on ’ y another type of retirement benefit (teacher retirement)
1’ k 529SW3dt769f mt ttdflew, the AL] determmed Beanwas not entitled to the “three” a; e: a ( co 0 e omi e )
inultl her or armament total disabili benefits due to the ,
left shoulder iiiqu ofFebi'uaiy 20 234 because Dr Kuhn On July 14’ 2018’ While Bean 5 claim lemained pending, the’ ’ General Assembly responded to Parker by enacting a new
im osed no restrictions u on Bean’s work activities due todial: left shoulder injury I;r due to Bean’s subsequent left versmn ofKRS 342 730(4) through its passage ofHouse Bill
2 Thi s on rov1ded a b oft eel tatshoulder surgeries The ALJ’s interpretation ofthat evidence 5 ver 1 p new on 1 “mg S mg m
is not unreasonable Moreover the evidence Bean cites in relevant part that payments 0f income benefits were limitedI tledateu hhthel h th of
favor of a contrary conclusion, which consists of his self 0 I pan w w e mp Wee reac as , :3 age
servmcr testimony and his own interpretation of Dr Knhn’s seventy 00% or four (4) years after the employee S Hum), or° last h h 1 st occurs KRS 342 730 4
records, is not so overwhelming that no reasonable person exposure w 1c ever a ( )
1 Igir:::::::fi:t:::::li:: :Lfifiroicgii‘rci‘lefiigiii’tg: During the administrative proceedings below, Bean contested
t the retroactive application of the new version of KRS
“is?“ 342 730(4) to his claim, arguing the July 2018 amendment toW tu t th d ct of Bean’s l h h KRS 342 730(4) could not have retroactive effect because the
ech:li:iiwes in :onsti::t:::aliat:1p:f the newl e221: 1,352“ General Assembly had not spemfically stated it was deSigned
f KRSg 342 7 0(4) ariety f b y W b th to have ictroactive eEect and because it impaired the vestedo .7 onav o ases e egin w1
tsf d k S KRS4460803 Fth Bwhat gave rise to his constitutional challenges During the ngh do hwy; wor ersd 98 £12136“; er 306:“
pendency of Bean’s claim, Parker v Webster) County Coal $5112: at“? ganglia? curretrli1:vers(;ilotrloo f th 20': (a:
LLC (Dotiki Mme), 529 s W3d 759 (Ky 2017) was decided I n if” 15 ° am 0 r p "s 0 e ab the Kentucky Su reme Court There it was determined prior verSions ofRS 342 730(4) that could otherwrse take
flirt the velsion of 1R8 342 730(4) in, effect at the time efl‘ect instead effectively entitled him to uncapped workers’
f B , ury was ttut a] b t I t d compensation benefits for the full duration of his disability0 cans in) unconsr ion ecause l v10 ac
and 05 bl h lfet eprinciples of equal protection That version provided in p SI y IS 1 1m
relevant pm But, by way ofan order entered September 21, 2018, the ALJdetermined KRS 342 730(4) was intended to have retroactive
WESTLAW (it 2020 Thomson Reuters No claim to original U 8 Government Works 4
Bean v Collier Electric Service, Not Reported in S W Rptr (2020)
2020 VVL 2603597
effect Thus, because Bean was sixty eight years of age at the This notice shall specify the challenged statute and the
time of his February 20, 2014 work injury, the AL] limited nature ofthe alleged constitutional defect
payment ofBean’s income benefits to four years after the date Whereas the latter rule CR 76 25(8), provides
of his work mjuryBefore filing, a copy ofthe petition [for review by the Court
Bean then appealed to the Board, arguing the ALJ of Appeals of decisions of the Workers’ Compensation
inconectly applied KRS 342 730(4) retroactively to his clalm Board] and any response shall be served on counsel 0fDuring the pendency of his appeal, however, the Kentucky “amid: or on any pafly “Qt replesented by °°hh_seh and
Supreme Court rendered Ho/cml v Swmfwd, 581 S W3d 37 on the Workers Compensatlon Board Such servme shall(Ky 2019), which confirmed the ALPS interpretation and be shown by certlficate on the pet1t10n or response when
application ofKRS 342 730(4) Id at41 44 Accordingly the filed in the Court of Appeals Puma“t t0 CR 5 02 and CRBoard affirmed 5 03 In any case in which the constitutionality ofa statute
is questioned, a copy of the petition and response shall
With that said, before we addless the substance of Beants be served on the Attorney General of the Commonwealth
constitutional arguments, there is an issue of preservation by the party challenging the valldity 0f the statute The
Specifically, Collier notes Bean never effectively raised any Attorney General may file an entry 0f appearance WIthlh
constitutional challenge to KRS 342 730(4) before the ALI ten (10) da¥s of the date 0f 511°“ fem“ If “0 may 0for the Board and never notlfied the Kentucky Attorney appearance ls filed, no furthel pleadings need be served on
General of any such challenge during the pendency of those the Attorney General
administrative proceedings pursuant to KRS 418 073 Assuch, Colller asserts Bean arguably’ waived any right to Here, Bean’s petition and Collier’s response both prov1de
challenge the constitutionality ofKRS 342 730(4) before this statements certlfying they were served upon the KentuckyCourt Attorney General prior to being filed with this Court And,
less than three weeks afier being served with Bean’s petition,
*6 Collie: is lncorrect Raising a constitutional challenge the Kentucky Attorney General filed a 16513011“ which, upon
during administrative proceedings before the AL] and Board rev1ew demonstrates a firm hhdchtah‘hhg Of the statute
would have been ineffective because an administlative Bean was challenglng and the nature 0f the c°h5hthh°haltribunal has no authority to determine the constitutionality defects he alleged, which are discussed in greater depth below
of a statute See Blue Diamond Coal Co 1, Cornetl, Accordingly, Bean’s constitutional challenge was adequately
J00 Ky 647 189 S W 2d 963 (1945) Likewise because preserved CfAustm Panda Co v Stacy 495 S Wad 732
admlnistrative proceedings cannot qualifyas “any proceeding 7"7 ny App 2016) (constltuttonal challenge fonow'hgwhich involves the validity of a statute” pursuant to KRS decISlon of Workers’ Compensatlon Board not preserved
418 075(1), it would have been equally pointless and because thelecord did not reflect thatthe appellant ‘complied
unnecessary for Bean to have notified the Kentucky Attorney with the notification requirements of CR 76 23(8) and KRS
General ofany constitutional challenge at thatjuncture 418 075 (2)”)
Only the Court of Justice could resolve a constitutional Accordingly, we now turn to the substance Of Bean 5challenge to KRS 342 730(4) And because the Court of constitutional arguments First, Bean observes that when the
Appeals is the first tribunal with jurisdiction to address any General Assembly enacted House Bill 2 into law, it specified
such challenge in this matter, the operative rules are KRS that some parts Of that IcngIahOh (such as the new and413 075(2) and Kentucky Rule 0f ClVil Procedure (CR) current VCI'SIOII OfKRS 342 730(4)) W616 des1gned to operate
76 25(8) The former rule provides retroactively, whereas other parts of that legislation were
designed only to operate prospectlvely Citing this fact, Bean
In any appeal to the Kentucky Court of Appeals or concludes “[R]etroactivity for certain sections ofHouse Bill
Supreme Court or the federal appellate courts in any forum 2 and not for other sections of House Bill 2 is arbitrary
which lnvolves the constitutional validity of a statute, the and in violation of the due process and equal protection
Attorney General shall, before the filing of the appellant’s provisions ofthe Kentucky Constitution and the United States
brief, be served with a copy ofthe pleading, paper, or other Constitution ’
documents which initiate the appeal In the appellate forum
Bean v Collier Electric Service, Not Reported in S W Rptr (2020)
2020 WL 2603597
*7 But, Bean cites no authority favoring his position that
a House Bill containing both prospective and retroactive In determining the constitutionality Of a statute, courts
provisions is somehow unconstitutional House Bill 2 apply three difi‘erent scrutiny levels strict, intermediate,
merely demonstrates that the General Assembly exercised and ratronal basis Vision Mmmg, 1"" V Ga’d’w” 364
its prerogative to amend Kentucky’s workers’ compensation S W 3d 455 465 66 (Ky 20] I) The 501‘“th level applied
system in different ways to address difl‘erent problems depends on the classifications made in the statute andthe interests affected Id at 465 (citation omitted) Strict
Bean’s next argument rs as follows or intermediate scrutiny applies if a statute makes a
classification because of a suspect or quaSr suspect class
[R]etroactivrty for certain changes to the workers’ [d at 466 (crtation omitted) If the statute merely affects
compensation statutes by HB 2 and not others is also social or economic policy, it is subject to the rational basis
arbitrary and a violation of the due process and equal test Id (citation omitted)
protectron provisions of the Kentucky Constitution Thereare no reasons or references by the Legislature in House Here, workers’ compensation benefits concern social and
B1112 for any “emergency” need for retroactive application economic policy, thereby requiring the ratiOnal basis testof Section 203 subparagraph 3’ or for that matter, any Parker, 529 S Wad at 767 (citation omitted) Courts will
provision of House Bill 2 being an “emergency” As uphold a statute if it passes the rational basis test, which
such the subject provision should not be permitted to requires a “rational basis” or “substantial and justifiablebe retroactive and should only apply to cases involving reason” supporting the classifications created 1d (crtation
injuries occurring afierJuly 13,2018 In fact, while Section omitted) “Proving the absence ofa rational basrs or ofa20 states that some portions of HB 2 are remedial it substantial andjustifiablereason forastatutory provision is
does not indicate that the changes to KRS 342 730(4) are a steep burden, however it is not an insurmountable one ”
remedial Id (citation omrtted)
Stripped of its general references to ‘due process and equal *8 Donathan argues KRS J42 730(4). rs unconstrtutronal
protection,” however, Bean’s centention merely questions because Of a perceived drscrlnrrnatlon between olderand younger injured workers Thrs argument triggers the
whether the General Assembly effectrvely enacted retroactive rational basis analysis based on the alleged discrimrnation
changes to KRS 34?. 730(4) through House Bill 2 In being age related
determining that KRS 342 730(4) is retroactive, the Kentucky
Supreme Court has already resolved that rssue See Holcrm, Parker determined the state’s interest in age related
53' S WJd 37 drsparate treatment is to (I) prevent duplication of
benefits, and (2) result in savings for the workers’Next, Bean argues the new and current version of KRS compensation system Id at 768 The Kentucky
342 730(4) is mvalid special legislation” that violates Supreme Court rejected the state’s argument the interest
Sections 59 and 60 of the Kentucky Constitution because it satlsfied the rational basrs test and ruled the 1996
applies to injured olderworkers,butnotallinjured workers ” version unconstitutional The Court held the statute
unconstitutional because rt treated workers who qualified
However, Bean crtes no caselaw in support 0““ argument for Social Security differently than those who did not The
He does not cite the legal framewo1k governmg “SPCCiaI Court made the distmctron that teachers who sufi‘er worklegislation” challenges Furthermore Bean acknowledges related inju1ies are not subject to KRS 342 730(4) because
his argument in this vein is a repackaging Of an “equal they do not participate in Social Securrty,asthey havetheirprotection” challenge to KRS 342 730(4) this Court recently own retirement program Therefore, the Court found the
addressed in Dorrallrarr v Town and Country FoodMar 1, N0 statute unconstitutional based upon them being no rational
2018 CA 001371 WC 2019 WL 6998653 (Ky APP Dec basis for heating other workers differently than teachers in20, 2019) Although Donathan is unpublished and remains the Comnonwealfll
pendrng, we believe it fulfills the requrrement ofCR 76 28(4)
(c) for citation and guidance We find its reasoning persuasrve Here, the disparate treatment is no longer linked to
rn the context ofBean’s ‘special legislation” challenge, such Social Security benefits Instead, the current and applicable
as it rs Although unpublished, we quote Donathan because it VGI’SiOTl 0fKRS 342 730(4) states “[3]” income benefits
explains this area ofthe law shall terminate as of the date upon which the employee
Bean v Collier Electric Service, Not Reported in S W Rptr (2020)
2020 WL 2603597
reaches the age of seventy (70), or four (4) years after the *9 Lastly, Bean asserts an ostensible ‘ due process
employee’s injury orlast exposure, whichever last occurs argument He contends
Applying the rational basis test, we find this version ofthe In addition, the retroactivity of KRS 342 730(4) is
statute constitunonal The legislators enacted this version unconstitutional because it violates due process under the
in response to Parker We are also cognizant of the strong 14th Amendment to the United States Constitution In
presumption of constitutionality afforded to legislative Goldberg v Kelly 397 U S 254 262 90 S Ct 1011
acts Brooks v Island Creek Coal Co 678 S W2d 791 1017 25 1.. Ed 2d 287 (1970) the United States Supreme
792 (Ky App 1984) (citations omitted) Accordingly, we Court held that a person receiving welfare benefits under
find the statute, as enacted, does not treat similarly situated statutory and administrative standards defining eligibility
persons differently The statute allows for the benefits forthem has an interestinthose benefits that is safeguarded
to terminate upon reaching the age of 70, or four years by procedural due process Clearly, workers’ compensation
alter the employee s injury, whichever occurs last This in Kentucky has statutory and admimstrative standards
stipulation rationally relates to the government’s basis for defining eligibility for those compensation benefits It is
the legislation to save taxpayer dollars allocated to the true that to have a property interest in a benefit, a claimant
workers’ compensation system It places a limit on the must have more than an abstract need or desrre for it or
amount of benefits every person is awarded, not just a a unilateral expectation of it Instead, they must have a
select group of individuals Therefore, we find the statute legitimate claim of entitlement to it See Board ofRegents
constitutional ofState Colleges v Roll: 408 U S 564 577 92 S Ct 2701
Id at *3 2709 33 L Ed 2d 548 (1972) Mr Bean received an award
from an AL] So, he has a legitimate claim of entitlement
“Special legislation” is arbitrary and irrational legislation to the awarded benefits
that favors the economic self interest of the one or the few
over that of the many” Zuckeiman v Bevm 565 S W3d KRS 342 730(4) as effective July 14’ 2018 has the effec"
580, 599 (Ky 2013) (citation omitted) In other words, “taking away benefits 1301““ Bea“ The A” we?“special legislation applies exclusively to spend 01 particular benefits to Mr Bean based on the law “1 effect at the “me
places, or special and particulai persons, and is distinguished 0f the AL] 5 award
from a statute intended to be general in its opeiation, and The Supreme Court of Kentucky said that the law on
that relates to classes of persons or subjects” Id Therethe date of injury controls the rights of the parties With
15 a “Simple, two part test for determining whether a law ,
titutes eneral 1e islation in its constitutional sense (1) respect to aworkers compensation claim See Haggard vcon; 1g t to g“ l d 2 d t t d International Han eslez Co 508 S W 2d 777 (Ky 1974)
equ app ica 10:1 5‘ In a 0355’ a?) ( ) 15 1n? we an and Beth Elkliom Corporation v Thomas, 404 S W 2d 16natural reasons inducing and supporting the claSSification ” ,Id 600 t t n d (Ky 1966) Mr Bean s cause of action arose on February
at (c1 a ions 0m 6 ) 20, 2014, the day of his injury Mr Bean’s property rights
A d td b KRS 342 730 4 d t bl to workers compensation benefits are defined by the
S In icae a ove, ( ) 065 no imperm1551 y statutory scheme in effect on that date By the terms ofdifferentiate between injured workers, it places a limit on the
that statutory scheme and the Supreme Court holding inamount of benefits every injured worker is awarded, not Just
Parker v Webster Coal, supra, he acquired a propertya select group ofindiViduals Moreover, there is a “distinctive ,
d t 1 ” th t KRS 342 7 0 4 d t ff right in his workers compensation benefits See Tatum v
a“ “3 ‘fra “as” a J ( “m” as a °"° Mathew, 541 F2d 161 165 (6th C11» 1976) Proceduraland ceiling for benefits at either the age of seventy or four
fter the in u whichever is later At that age in ured due process precludes termination ofbenefits Without prior
yearlfa J31? 1 bl f d 1 J t notice and hearing Goldberg 1: Kelly supra at 267 68
wor ers are;ypic ldy e 1g; a lo; 0 “it ”mime reptzcempitis 90 S Ct at 1020 Mi Bean was awarded income benefits
income, sue as 0 age ocra ecurity re iremen enc 1 Applying the amended version of KRS .142 730(4) to hisor, for teachers, a public penSion Treating younger and
claim retroactively deprives Mr Bean of benefits Withoutolder workeis differently in this respect serves the rationall 1 ti f t d l t f b f3 due process of law In this case, the enacted amendment
6ng a ye purposes 0 preven ing up ica ion 0 ene I to KRS 342 730(4) is clearly a substantive change in theand maintaining the solvency of the workers” compensation ,
t P l. 529 S W3d 1768 law for Mr Beans mJury It is not remedial in that it
sys em 0' er a directly affects Mr Bean’s vested rights per the Workers’
Bean v Collier Electric Service, Not Reported in S W Rptr (2020)
2020 WL 2603597
Compensation Act The change takes away benefits from With that said, this Court addressed and rejected the same
Mr Bean contention where it was more aptly framed as a challenge
under Section 19(1) ofthe Kentucky Constitution and Article
Remedial prov1sions generally expand a remedy 1 Section 10, Clause 1 of the United States Constitution,
without afleaihg the substantive basis, prerequisites or which prohibit laws that impair the obligation of conti actscircumstances giVing use to a remedy See Kentucky We find the recent case ofAdams v Excel Mimug LLC,N01mm mice Guarantee 4ssoctationv Jefiizis 13 S W ad 606 2018 CA 000925 WC 2020 WL 864129 (Ky App Feb 21
(Ky 2000) and Woo: e V Std/S 307 S “I"! 71 (Ky 2010) 2020) (unpublished) persuasive and believe it offers sound
The Kentucky Supreme Court has long recognized the giudance on this issue, thus, it fulfills the requirement of CR
fundamental princ1p1e of statutory construction that bans 76 28(4)(c) for Citation In Adams, we explained m relevant
the retroactive application of statutory amendments See part
Comm Dept of Agncultme v Vinson, 30 S W3d 162 Despite the seemingly unequivocal language of
(Ky 2000) Although House Bill 2 specifically provides the federal and state Contract Impairment Clauses,reuoactive application such arehoactive application may “I.“ constitutional prohibition against impairing the
Shh not infringe upon an injured worker’s lights and obligation of contracts is not an absolute one to beconstitutional protections that vested on the date of his read with literal exactness The Contract Clause does
injury As such the 2018 version 0f KRS 342 730(4) not prevent a state from enacting regulations or statutesviolates prohibitions on retroactive application and should which are reasonably necessary to safeguard the Vital
be found by the Court ofAppeals to not apply to Mr Bean interests of its people a:
The Court of Appeals should decline to apply a statute
which was not in efi‘ect at the time of Mr Bean’s injury Ma e v Bd ofDu actorsfor Commonwealth Postsecondaiy
Mi Bean asks that relief Educ Prepaid Tuitmn TI Fund, 359 SW3d 354, 368
(Ky 2018) (citation omitted) When determining whether a
*10 Bean’s argument has no merit True, Bean was legislative act violated the contract impairment clause, we
awarded workers’ compensation benefits And, Bean is are to utilize the following standaid
correct that that a person receiving benefits undei statutory
and administrative standards has an interest in those benefits (1) whether the legislation operates as a substantial
that cannot be terminated in the absence of procedural impairment Of a contractual relationship, (2) if so:
due piecess Goldbelg, .397 U S at 267 90 S Ct at 1020 then the inquiry turns to whether there is a Significant
But despite Bean’s frequent references to it, a violation of and legitimate public purpose behind the regulation,
procedural due process’ is not implicated in his argument such as the remedying Of a bioad and general social
He is not complaining that the workers’ compensation or economic problem and (3) if; as m this “53’ the
benefits he was awarded were terminated because, indeed, government is a party to the contract, we examine
they were not Setting aside its verbiage the substance of his “whether that impairment is n0netheless permiSSIble asargument is that he would have been awarded more benefits if a legitimate exercise 0f the state’s sovereign powers,”
an earlier vers ion of KRS 34?. 730(4), rather than the current and we determine ifthe impairment is “upon reasonableone, had been applied to his claim conditions and of a character appiopriate to the public
purposejustifying its adoption "
Essentially, Bean’s complaint is that the retroactive 1d at 369
application of the current version of KRS 342 730(4)
infringed upon his right to weave; workers’ compensation The first step 15 determining ‘whether the state law
benefits pursuant to the statute in efl‘ect at the time of his has, in fact, operated as a substantial impajment of
inme In other words he agreed to take pin1 in KentuckY’s a contractual relationship’ ” Id at 369 70 (citationsworkers’ compensation scheme and demands he receive the omitted)
benefits he was entitled to at the time he was injured and
not pursuant to the new retroactive statute, which, taking the A significant consideration in this step ofthe analysis issubstance of his argument objectively, he believes to be an the extent to WhiCh the industry SlibJCCt to the contract
invalid expastfacto law has been regulated in the past The rationale for this rule
is thust stated One whose rights such as they are, are
Bean v Collier Electric Service, Not Reported in S W Rptr (2020)
2020 WL 2603597
subject to state restriction, cannot remove them from the Mate 539 S W 3d at 372 (citations onutted) The contracts
power ofthe State by making a contract about them ” at issue here are not between individuals and the state,
*11 1d at 370 (citatrons omitted) Here, we believe bl“: between an employee, an employer, and a workers’the new law substantially impairs Appellant’s benefits compensation msurance provider We therefore will defer
Although the workers’ compensation scheme is heavily to thejudgment ofthelegrslature
regulated past versions OfKRS 34? 730(4) have allowed a We believe retroactive applrcation of KRS 342 730(4) isbenefit recipient to receive benefits forlife In fact, the 1994 reasonable and appropriate As previously stated, limiting
version that was to be applied allowed Appellant to receive the duration of benefits has been a pan of the workers’
benefits for life, although they were subject to reduction compensation system since 1996 Parker, supra, found the
from time to tune The current versron termrnates benefits limitation which applied at that time to be unconstitutional
once Appellant reaches 70 years Of age The Kentucky Legislature had to act quickly to return the
The second stage of the analysis involves 21 workers’ compensation system to the status quo Had the
determination ofwhether the newly Imposed conditions legislature not 8°th employees who Still had workers’that impair the contract can be justified by a srgnificant compensation claims which were not final between the
and legitimate public purpose Among the purposes rendering of Parker and the effective date of the current
thatjustify such impairment is legislation aimed at the “mum 0f KRS 342 7:30“) would be entrtled to someremedying of a broad and general socral or economic amount ofbenefits for life This would have placed a large
problem financial burden on the workers compensation system,
employers, and insurers Holczm, supra, holds that the
101 at 371 (citations omitted) The Kentucky Supreme Kentucky Legislature specifically intended that the current
Court has found that hmiting the duration of benefits is version ofKRS 34?. 730(4) apply retroactively As we have
justrfied by a legitimate public purpose The Court found found it is constrtutional, we conclude that it applies in this
that limiting the duration of benefits solves two economic case
problems “(1) it prevents duplication ofbenefits, and (2) it Id at *2 3
results in savings for the workers’ compensation system ”
Par/tel 529 S W3d at 768 This is evident from the fact Our analysis set forth above disposes of the substance of
some version of limiting the duratron of benefits has been Bean’s argument There is no reason to depart flora the sound
in effect in Kentucky since the 1996 version of KRS reasoning 1n Adams
:42 730(4)
In short, the AL] did not clearly err in its assessment of
The third stage 0f the analysis examines whether the evidence regarding Bean’s claim, and Bean has not set
the adjustment of ‘the rights and responsibilities of forth any basrs for holding KRS 342 730(4) unconstitutionalcontracting parties [is based] upon reasonable conditions Accordingly, we AFFIRM
and [is] of a character appropriate to the public purpose
justifyrng [the legislation’s] adoption ” Analysis under
this prong varies depending upon whether the State rs
a party to the contract When the State itself is not ALL CONCUR
a contr actrng party, ‘[a]s is customary in reviewing All Citatrons
economic and social regulation, courts properly
defer to legislative judgment as to the necessity and Not Reported in s W Rptr 2020 WL 2603597
reasonableness of a particular measure ”
Footnotes
1 KRS 342 730(1)(c)1 provides If due to an Injury an employee does not retain the physical capacity to retum to the type
of work that the employee performed at the time of injury the benefit for permanent partial disability shall be multiplred
by three (3) times the amount othenrvrse determined under paragraph (b) of thrs subsection but this provision shall not
be construed so as to extend the duratron of payments[]
0 Bryan v Zip Express Not Reported in S W Rptr (2020)
2020 WL 2298392
2020 WL 2298392 FACTS AND PROCEDURAL BACKGROUNDOnly the Westlaw citation is currently available
On June 11, 2015, O'Bryan was injuied in a car accident
Unpublished opinion See KYST while working for Zip Express (correctly identified as
RCP Rule 76 28(4) before citing Ramp Logistics LLC) OBiyan filed for benefits under thea 2NOTTO BE PUBLISHED Workers Compensgtion Act Beclause t1“: only 1:51:65 01;
Court ofAppeals of Kentucky appea pertain to t e constitutiona ity an app ica iity o
KRS 342 730(4), as amended effective 2018, we Will not
thMichael O'BRYAN, Appellant summarize e medical and lay ev1dence
V On September 18, 2017, the AL] issued an opinion and award
ZIP EXPRESS (Correctly Identified finding 0 Bryan totally disabled and Oideied permanent total
as Ramp Logistics, LLC), H011 disability (PTO) benefits to continue f01 as long as OBryan
remamed so disabled Several petitions for reconSideration
Jonathan R Weatherby, Administrative followed On January 18 2018 the ALJ issued an order
Law Judge;1 And Workers’ stating that since the injury occurred afier O‘Bryan reached
B d A 11 age sixty five, the tier down prov1510ns of KRS 342 730(4),
Compensation 081‘ ’ PPe ees as amended in 1994 and in efl°ect as of the date of O'Bryan's
injury, did not reduce O‘Bryan's award Zip Express appealed
NO 2018 CA 001284 WC that order to the Board The Board vacated and remanded,
I findin KRS 342 730(4) as amended effective 2018 shouldMAY8 AM g
’ 2020’ 10 00 have been applied to O‘Bryan's PTD award due to its
PETITION FOR REVIEW OF A DECISION OF THE retroactivity This petition forieview followed
WORKERS COMPENSATION BOARD ACTION NOThis appeal involves only questions of law conceming
WC 15 80377whether KRS 342 730(4), as amended efi'eetive 2018,
Attorneys and Law Firms is constitutional and applicable to the case herein The
appropriate standard of review for workers’ compensation
BRIEF FOR APPELLANT Derek P O‘Bryan, LOUISVIIIea claims was summarized in Bower man v Black Equipmem
Kentucky Coma»); 297 s W3d 858 866 (Ky App 2009)
BRIEF FOR APPELLEE ZIP EWRESS (CORRECTLY Appellate ieView of any workers compensation decisionIDENTIFIED AS RAMP LOGISTICS LLC) R Christion is limited to correction of the AL] when the ALT
HIE-“*0“: Paducah, Kentucky has overlooked or misconstrued controlling statutes or
BEFORE CLAYTON: CHIEF JUDGE: DIXON AND pif“;asmmif73531313212“1525375123270001)me IUDGES Hosp 1 Kelly 827 s w 2d 685 687 as (Ky 1992) Our
standard ofieview differs in regard to appeals of an ALJ's
deciSion concerning a question of law or a mixed question
OPINION of law and fact vis a vis an ALJ's decision regarding a
DIXON IUDGE question of fact
*1 Michael 0me petitions for review of a Workers’ The inst instance concerns questions of law or mixed
questions of law and fact As a reViewmg court, we areCompensation Board (Board) opinion vacating and
bound neither by an ALI's dec1510ns on questions of lawremanding the order on reconSIderation entered January 18, ALJ' d l fth 1 th
2018, by the Administrative Law Judge (ALI) After cai eful or an S interpretation an app reationo it aw to e. facts In either case, our standard of reView is de novo
reView, we affirm the Board 5 opinionCalm/Ii Meredith 39 S W3d 484 489 (Ky App 2001)
0 Bryan v Zip Express Not Reported in S W Rptr (2020)
2020 WL 2298392
Cmellz v Ward 997 S W2d 474 476 (Ky App 1998) unconstitutional It is well settled that [n]o statute shall be
De novo rev1ew allows appellate courts greater latitude construed to be retroactive, unless expressly so declared ”
in reviewmg an ALJ's decismn Purchase Transportation KRS 446 080(3) A Legislative Research Commission (LRC)
Services v Estate of Wilson, 39 3 “(ad 816, 817 18 note appears below the official versron of KRS 342 730(4)
(Ky 2001), Unmswed Employers Fund v Garland, 805 stating
S W2d 116 117 (Ry 1991)
As the case herein concerns only questions of law, our review [t]his statute was amended in Section 13 Of 2018 Kyis de novo Acts ch 40 Subsection (3) of Section 20 of that Act
*2 0me contends the 1994 version of KRS 342 730(4) prospectively and retroactively to all claims (a) For which
applies to his claim because the 1996 version was held the date of injury or date of last exposure occurred on or
unconstitutional in Parker v Webster County Coal LLC after December 12' 1996’ and (b) That have not been fully(Don/(I Mme), 529 S W 3d 759 (Ky 2017) “As a general rule, and finally adjudicated, or are in the appellate process, or
thelaw in efl‘ect on the date ofinjuiy or last injurious exposure for WhiCh time to file an appeal has not lapsed, as 0f the
is deemed to control a worker's rights and an employer's shame date ofthis Act”obligations with regard to any claim arising out of and in the KRS 7 131(3) states that the Legislative Researchcourseofthe employment ”Magic Coal Co 1! Fox 198 W3d Commission “may omit all laws Of a private, local, or88, 93 (Ky 2000) temporary nature[ ]” The language 1egarding retroactivity of
KRS 342 730(4) is temporary and applies to those cases
At the time of O‘Bryan's injury, KRS 342 730(4) provided which “have not been fully and finally adjudicated, or are in
that workeis’ compensation benefits “terminate as of the the appellate process, or for WhiCh time to file an appeal hasdate upon which the employee qualifies for normal old not lapsed, as of the effective date of this Act ” Retroactivity
age Social Security reti1ement benefits or two (2) years of KRS 342 730(4) Will not be an issue for any injuries
afier the employee's injury or last exposure, whichever last and claims occurring after Ith 14 2018 The language inoccurs a: This version of KRS 342 730 came into effect the note to KRS 342 730(4) is only relevant to a particular
in 1996, but subsection (4) was held unconstitutional by “11151331113: and 01166 cases arising during that timefi-ame are
Parker Considermg Parker, the AL] determined the prior fully adjudicated itwrllbeunnecessary As aresult, dueto the
amendment to KRS 342 730(4), which came into effect in temporary nature 0f the language regarding retroactivity Of1994 should be applied The 1994 versron ofKRS 342 730(4) KRS 342 730(4) codification of this note was not required to
provided “Elf the injury or last eXposure occurs prior to the ensure retroactive application of this provision See Holcun,
employee 3 Sixty fifth birthday, any income benefits awai ded 3‘81 S W 3d at 44
undei KRS J42 750 342 316 .142 730 or 342 732 shall be
reduced by ten percent (10%) beginning at age sixty five 3 0,13er also alleges that because H3 2 neither(65) and, by ten percent (10%) each year thereafter until identified itself as addressing an “emergency or being
and includmg age seventy (70) a: The ALJ ultimately found “remedial,” the legislature was without authority to designate
this provisron did not reduce O'Bryan's award since he was the 2018 amendment 0f KRS 342 730(4) as retroactiveover Sixty five at the time of his injury However, plior to Generally, retroactive legislation is heated with a certam
the Board‘s opinion in the case herem, KRS J42 730(4) was level of suspicion and is even prohibited at times However,
amended effectiVe July 14, 2018 The issue of whether this retroactive leglslation is “Qt forbidden
amendment was retroactive waSIecently addressed in Hakim Retroactivity provisions ofien serve entirely benign and
1 Swmford 581 S W 3d 37(Ky 2019) 11010111213 now bindinglegitimate purposes, whether to respond to emergencies
authority, consequently, our OmeOIl must be consrstent Withto correct mistakes, to prevent Circumvention of a new
Holcrm statute in the interval immediately preceding its passage, or
simply to give comprehensive effect to a new law Congress
considers salutary However, a requirement that Congress
RETROACTIVITY first make its intention clear helps ensure that Congress
itself has determmed that the benefits of retroactivityO'Bryan contends the retroactive provisions of House outweigh the potential for disruption or unfairness
0 Bryan v Zip Express Not Reported in S W Rptr (2020)
WW—
Landglafv US] Film Products, 511 U S 244 267 68, 114 violated equal protection of his rights Therefore, we must
S Ct 1483 1498 128 L Ed 2d 229 (1994) initially determine the appropriate level of review
It is unnecessary for retroactive legislation to use the words *4 There are three potential levels 0f review when
“emergency’ or ‘remedial” to be permissible It is sufficient, analyzing an equal protection 0mm 5mm scrutiny,as in the case herein, that the purpose of the legislation intermediate scrutiny, and rational basis See Viszon
is to coriect a mistake in prior legislation As p1ev10usly ang [’76, 364 S W3d at 465 66 While strict and
mentioned, the prior (1996) version of KRS 342 730(4) was intermediate scrutiny apply when a “statute makes a
held unconstitutional in Parker Consequently, the legislature C1355ifi°ati°n on the basis ofa suspect’ or ‘quasi suspect’
had a legitimate reason to correct its prior legislation It class,” the rational basis test is used when “the statute
further illuminates why the legislature chose the period of merely affects social or economic policy[ 1” 1d at 466
retroactivity contained intheLRC note The legislature, may (quoting D F v Codefl, 127 S W“ 571 575 76 (Ky
amend the law and make the change applicable to pending 2003))
2:3: 3:13???EZETSTmmESSoutwmeliie$:a:l:f; This Court has p1 eviously held that weikei‘s compensation
1317 194 L Ed 2d 463 (2016) Therefore we can neither say “wasthe legislature exceeded its authority in enactingI—IB 2 nor that concern matters of social and economic policy Statutes
it violated the Kentucky Constitution are presumed to be valid and those concerning social oreconomic matters generally comply with federal equal
protection requirements if the classifications that they
STATE EQUAL PROTECTION create are rationally related to a legitimate state interest
Sections 1, 2, and 3 ofthe Kentucky Constitution prov1de
O‘Bryan next argues HB 2 violates Sections 1, 2, 3, 59 that the legislature does not have arbitrary power and
and 60 of the Kentucky Constitution O'Bryan cites Viszon shall treat all persons equally A statute complies with
liming Inc v Gardner, 364 S W 3d 455, 46) (Ky 2011) in Kentucky equal protection requirements ifa ‘reasonable
which the Court held Sections 1, 2, and J of the Kentucky basis” or “substantial andJustifiableieason” supports the
Constitution also provide that the legislature does not have classifications that it creates Analysrs begins with the
arbitrary power and shall treat similarly situated persons presumption that legislative acts are constitutional
equally” O‘Bryan then maintains that his case was treated
differently than similarly Situated persons that did not have Cam v Lodeszw 15””33' Inc ’ 302 S W” 39’ 42 43 (Kytheir cases appealed 2009) (internal citations omitted)
Id at 46
First, we begin our analysis of O'Bryan's claim with the
judicial fiat that legislation is presumed constitutional Consequently, our next inqutry ‘5 whether the legislature hada rational hams for amending KRS 342 730(4) retroactively
In considering an attack on the constitutionality of Feline! is mstructivemthis regard as well
legislation, this Couit has continually resolved any doubt in
fav01 of constitutionality rather than unconstitutionality” A rational basis may be any “reasonable b31515” or
Hallo/ion v illlllebeelel 373 s W2d 726 727 (Ky 1963) “subStanfial mdiustlfiable “3330“” Cams 30’ S W3d at(citing Reynolds Metal Co v Martin, 269 Ky 378, 4" A person challenging a law “p0“ equal protection38] 32, 107 SW2d 251 253 (1937)) In detennining groundsundertherationalbasistesthasaverydifiiculttask
the constitutionality of a statute “[011“, functions are to because a law must be upheld if there is any reasonably
determine the constitutional validity and to declare the conceivable state of facts that could provide a rational
meaning of what the legislative department has done We basis for the classification Connnomveahh ewe] Stumbo
have no other concern ” Johnson v Commomvealth exlel v C’ utehfield, 157 S w’d 621’ 624 (Ky 2005) (citingMeredith 291 Ky 829 833 165 8 “12d 820 823 (1942) UnitedStatesRR Rel 3d v Frif 449 U S 166 178 79
Teco/Penv County Coal v Felme) 582 S W 3d 42 45 (Ky 101 S Ct 453 461 66 L Ed 7d 368 (1980)) Furthermore2019), rehi8. denied (Sept 26, 2019) O'Bryan‘s argument the General Assembly need not aiticulate its reasons for
of disparate treatment is essentially one alleging that BB 2 enacting the statute, and this is particularly true wherethe legislature must necessarily engage in a process of
0 Bryan v Zip Express, Not Reported in S W Rptr (2020)
2020 WL 2298392
line drawing” Id (citing F1217, 449 U S at 179, 101 Security retirement benefits differently than it treated older
S Ct at 46 1) Accordingly, ‘ [o]ur General Assembly, under injured workers who did not qualify The Court described its
the Equal Protection Clause, has great latitude to enact rationale for this holding
legislation that may appear to affect sim1larly situatedpeople differently” Id. (citation omitted) [a]s Justice Graves noted in his dissent in [McDowell
Id at 47 1 Jackson Energy RECC 84 S Wad 71 (Ky 2002)]
“Kentucky teachers have a retirement program and do
Here, it does not appear the legislature intended to create a “m F’s-“Mm“: in social secufity” 84 S W 3d at 79 Thusseparate classification between those whose cases could have a teacher who has not had any outside employment andbeen appealed and those whose cases were, in fact, appealed who suffers a work related injury will not be subject to
Once again, and in relevant part, the LRC note below the the limitation in KRS 342 730(4) because that teacher
official version ofKRS 342 730(4) states will never qualify for Social Security retirement benefits
There is no rational basis for treating all other workers in
“Subsection (4) of Section 13 of this Act shall apply the Commonwealth differently than teachers Both sets of
prospectively and retroactively to all claims workers w111 qualify for retirement benefits and both have
contributed, in part, to their ‘retirement plans
However, while teachers will receive all of the workers’
(b) That have not beenfully andflnally adjudicated. or are compensation income benefits to which they are entitled,m the appellateprocess orfor which time tofile an appeal nearly every other worker in the Commonwealth will not
has not lapsed as ofthe reflective date ofthisA“ n This disparate treahnent does not accomplish the goals(Emphasis added) A plain reading indicates that the 2018 posited as the rational bases for KRS 342 730(4) The
amendment applles With equal force to clalms that were m statute does prevent duplication of benefits, but only for
the appellate P100353: as well as those that could have been non teachers because, while nearly every other worker is
appealed as Of July 14’ 2018 Whether an employer chooses foreclosed fiom receivmg “duplicate benefits,” teachers areto file an appeal does not change the application ofthe statute not
The implication that employers should be compelled to appeal Pa: ker 329 S W 3d at 768
all claims that were appealable at the time the amendment
became effective in order to create equal treatment is an Contrary to ouBryanus argument, Par ke: did not hold that
impossibility However, all employers and employees in the any age limitation applied to the administration of workers’
system at the time the statute became retroactive stood in the compensatlon income disability benefits is unconstitutional,
same position as to application 0f the statute Consequently, it held the equal protection problem with KRS 342 730(4)
O'Bryan's claim that disparate treatment between similarly is that it treats injured older workers who qualify for normalsituated persons whose cases were not appealed violated old age Social Security retirement benefits differently than
equal “memo“ Of his rights is unfounded it treats injured older workers who do not qualify ” 1d The2018 amendment did not violate equal protection in this or
any other way Furthermore, age restrictions and tier down
AGE LIMITATIONS benefits in workers’ compensation claims based on age have
been found constitutionally valid by prior panels ofour Court
*5 Next O'Bryan maintains that any age Iimitatwn applied See Edvards v Louisville Ladder 957 s w 2d 290 (Ky Appto the administration 0f workers’ compensation income 1997) and Brooks v Island Creek Coal Co 678 S W 2d 791
disability benefits should be found unconstitutional 0 Bryan (Ky App 1934)
contends that the 2018 version of KRS 34?. 730(4) “suffers
from the same or similar defects as the 1996 version that
was held by the Supreme Court as being unconstitutional inPa; kg, FEDERAL DUE PROCESS
O'Bryan also argues the retroactivity of KRS 342 730(4) isIn Parker , the Court held the equal protection problem With unconstitutional because it violates due process under thethe 1996 version of KRS 342 730(4) is that it treated older Fourteenth Amendment to the United States Constitution
Injured workers who qualified for normal old age Socral (3me compares this case to the federal due process
0 Bryan V Zip Express Not Reported in S W Rptr (2020)
2020 WL 2298392
challenge in Goldbeig 1 Kelly 397 U S 254 90 S Ct101] 25 L Ed 2d 287 (1970) In Goldberg individuals [01fcourse legislators may amend the textofa. bill between
receiving federal financtal aid challenged the adequacy of its readings without running afoul 0f § 46 Ordinarily,
the procedures for notice and hearing when termmating such the reVised tent ‘5 some variation 0f the original text andaid The Court held procedural due process requiies a We remains conSIStent With the theme reflected in the title
termination evidentiary hearing when federal aid to a welfare 0f the hm The complete eh'hlhahhh Of all the words Ofrecipient is discontinued the prior readings and their total replacement with welds
bearing no relationship to the title of the bill is a far
However, the case herein differs from Goldbeig Goldbeig different matter With ”Sheet to § 46 compliance Home)concerned persons receiving welfare benefits, challenging v Board of County Caiiim’is Franklin County, l9 Ohio
the notice and hearing procedures for its termination “Such Sthd I 482 NE 2d 575’ 579 (1985) ( [A]mendmentsbenefits are a matter of statutory entitlement for persons which do not Vitally alter the substance of a bill do not
qualified to receive them as [d 397 U S at 262 90 S Ct triggerarequirement for three considerations anew ofsuch
at 1017 (footnote omitted) 0wa argues like Goldbeig amended bill But, when the subject or proposition of the
he has a legitimate claim of entitlement to the workers’ bill is thereby wholly changed, it would seem to be propel
compensation benefits he was awarded Welfare and workers’ to read the amended b1” three times, and on differentcompensation are both creatures of statute, but their statutory days ) (quotation marks and Citations omitted), \[agee vframeworks are separate and distinct Here, O‘Bryan's due Boyd, 175 So 3d 79, “4 (A18. 2015) ( ‘[I]t 15 clear that the
process rights were not violated because he was given substitute ver510n ofHB 84 was not read ‘on three difierent
both notice and the opportunity to be heard prior to the days’ineach house However, weholdthatanamended bill
termination of his workers’ compensation award Moreover or a substitute bill, ifgermane to and not inconsistent with
O'Bryan had no longstanding expectation ofa certain benefit the general purpose ofthe original bill, does not have to be
His award was appealable at the time KRS 342 730(4) read three tunes on three difl'erent days to comply With §
was amended in 2013 Furthei, as discussed above, KRS 63 [Alabama's the three readings requirement ’] ); State v
342 730(4) was amended in 1994 and again In 1996 and the Ryan 92 Neb 6:6 1:9 N W 235 238 (1912) (allowing1996 amendment was found to be unconstitutional m 2017 amendments to be introduced alter the legislative seSSion
Statutory amendments after an injury may apply without ends so long as “the amendment is germane to the subject
violating the Constitution as to workers’ compensation ofthe Oiiginal bill and not an evident attempt to evade the
benefits See Tliornsbuiy v. AemEneIgy, 908 S W 2d 109, 112 COhShtthh”)’ Stale “ ”061“” ’36 Fla 358’ 18 So 767’ 770
(Ky 1995) (“Since the reason for the amendment extends to (1895) (explaining that three re readings are unnecessary
past transactions, it must be applied to any claims pending as when the amendments m question are made germane toof April 4’ 1994, even though filed before is) [the bill's] general subject, either to the body ofthe bill 01
to its title”)
Bevm v Caimiiamiveallli es mi Hes/19m, 563 S W 3d 74,
91 92 (Ky 2018) Applying this logic to the case herein
READING REQUIREMENT the substitutions and amendments to HB 2 were germane to
*6 0me further contends that 1-13 2 is unconstitutional and not inconsistent with the general purpose of the original
bill, accordingly, it did not have to be read again three timesbecause the legislature did not comply With Section 46 of the thr d ff (1 i th S 46 f t]
Kentucky Constitution In pertinent part, Section 46 provides, OK“ wee (E “if“ aysCto c:mp);1w10B (action I; tie
“[e]very bill shall be read at length on three different days the“ cky 0:? ion OHS quen 3” ryans argu n o
in each House[ ]” There is no dispute that I-IB 2 was read e con ) m S
at length on three different days in each House However,
0 Bryan contends that H3 2 was not read again after it was
passed with Senate Committee Substitute 1 and Senate Floor SPECIAL LEGISLATION
Amendment 1Additionally, O'Bryan claims H8 2 was impermissible Special
This is not an issue of first impressiOn In anothei case legislation prohibited by Sections 59 and 60 ofthe Lentucky
challenging whether 3 b1“ complied with the reading Constitution However O'Bryan offers little argument or
requirement, the court determined support for these allegations We will not search the record
Ford Motor Company (LAP) v Pickett Not Reported in S W Rptr (2020)
2020 WL 2298434
and remand Appeal No 2018 CA 000415 WC and affirm
2020WL2298434 Cross Appeal No 2018 CA 000551 WC
Only the Westlaw citation is currently availablePickett started his employment with Ford Motor in July 2012
Unpublished Opinion See KY ST Pickett alleged that he suffered a work related injury to his
RCP Rule 76 28(4) before dung neck (cervrcal spine) on January 16, 2015, and to his left
shoulder on July 13, 2015, while working at Ford Motor
NOT TO BE PUBLISHED On November 30 2015 Pickett filed a claim for workers
Court oprpeals ofKentucky compensation benefits Eventually, the ALJ rendered an
Opinion Award, and Order (opinion) on July 31, 2017
FORD MOTOR COMPANY Therein the ALJ found that Pickett did not sustain a work
(LAP), Appellant/Cross Appellee related injury to his cervical spine but rather suffered from
V a preexisting active condition thereto However, the ALJ
also found that Pickett did sustain a work related injury
Ray Henry PICKETT: Hon R to his shoulder The ALJ awarded Pickett temporary total
Roland Case, Administrative Law disability benefits from May 18 2016 through September
Judge; and Workers’ Compensatlon 16 2016 The ALJ further concluded that Pickett was
entitled to a 5 percent permanent Impairment rating and
Board: APPeueeS/Cross Appellants accordingly awarded Pickett permanent partial disabilitybenefits As Pickett was born on January 14 1955 the AL]
NO 2018 CA 000415 WC’ concluded that Pickett s permanent partial disability benefits
NO 2018 CA 000551 WC would terminate when he reached the age to receive his[ normal social security benefits or two years after the injury,
MAY 812020, 10 00 AM whichever occurred later per Kentucky Revised Statutes
PETITION AND CROSS PETITION FOR REVIEW OF (KRS) :42 730(4) Subsequently Pickett and Ford Motor
A DECISION OF THE WORKERS COMPENSATION 5°“ghtreV1eww'fl‘th5B‘md
BOARD ACTIONNO WC 15 01910 By Opinion entered February 16 2018 the Board vacated
Attorneys and Law Firms and remanded the ALJ’s Opinion The Board observed
that KRS 342 730(4) was declared unconstitutional by the
BRIEFS FOR APPELLANT/CROSS APPELLEE FORD Kentucky Supreme Court in Parker v Webster County Coal
MOTOR COMPANY (LAP) G801 e T T Kitchen III LLC (Dank: Mine) 529 s W3d 759 (Ky 2017) As aLomsvrlle Kentucky consequence the Board determined that the prior version of
KRS 342 730(4) would control the duration of permanent
BRIEF FOR APPELLEE/(EROSS APPELLANT RAY partial disability benefits The Board remanded for the AL]
HENRY PICKETT Ched Jennings, Louisvrlle, Kentucky to determine benefits in accordance with the prior version of
BEFORE AGREE TAYLOR AND K THOMPSON KRS 342 730(4)JUDGES
Thereafier Pickett and Ford Motor filed petitions in this
Court for review While the petitions were pending in
OPINION this Court the Kentucky General Assembly amended KRS
:42 730(4) on July 14, 2018 Under the amended version
TAYLOR JUDGE of kRS 342 730(4) income benefits would terminate when
the employee reached the age of seventy or four years afier
*1 Ford Motor Company (LAP) (Ford Motor) petitions the employees injury whichever occurred later in time
and Ray Henry Pickett cross petitions this Court to review a The Legislature also provided that KRS 342 730(4) should
February 16, 2018, Opinion of the Workers’ Compensation apply retroactively to all claims that had not been fully and
Board (Board) vacating and remanding an Opinion Award finally adjudicated” and had an Injury/disease date on or after
and Order ofthe Administrative Law Judge (ALI) We vacate December 12, 1996
Ford Motor Company (LAP) v Pickett Not Reported in S W Rptr (2020)
WWW
reaches the age of seventy (70), or four (4) years after the
By order entered January 25 2019, the Court ofAppeals, sud employee’s injury or last exposure, whichever last occurs
sponte, placed these appeals and others in abeyance pending In like manner all income benefits payable pursuant to this
the Supreme Court’s decisions in two appeals Lanier v chapter to spouses and dependents shall terminate as of
Umverszzfy ofLoursvrlle, Appeal No 2018 SC 000685 WC] the date upon which the employee would have reached age
and Holczm v Swmford, Appeal No 2013 SC 000627 WC seventy (70) or four (4) years after the employee’s date of
Both appeals centered upon whether KRS 342 730(4) should iii-“11y or date 0f last exposure, whichever last occurs
be given retroactive applicationIt is generally understood that legislative enactments are
*2 The Supreme Court eventually rendered an Opinion presumed to be constitutional Brooks v Island Creek Coal
in Holcun v Swuy’ora' 581 s Wed 37 (Ky 2019) and C0 673 5 WM 791 79’ (KY APP 1984) T0 comply Withdetermined that the amended KRS 342 730(4) applied the equal protection clause and the due process clause, our
retroactively to pending cases The Court declined to reach Supreme Court recognized that “[3] statute involvrng thethe constitutionality ofKRS 342 730(4) because the Attorney regulation of economic matters or matters of social welfare
General was not properly notified of the constitutional [must be] rationally related to alegltrmate state objective ”
challenge per KRS 418 075 After the Opinion in Holczm was “5”“ V ”70"! 1"" 969 S W 7d 695 696 (Ky 1998)
rendered, the Court of Appeals returned these appeals to the
active docket for a decision on the merits We shall initially By its plain terms, KRS 342 730(4) terminates incomeaddress Ford Motor’s arguments raised m its petition (Appeal benefits either when the claimant reaches seventy years ofage
No 2018 CA 000415 WC) and then Pickett’s arguments or four years after injury, whichever occurs later in tune It
raised in his cross petition (Appeal No 2013 CA 000551 is patently clear that KRS 342 730(4) treats injured elderly
WC) for review claimants differently from injured younger claimants 2 The
reason for this disparate treatment rests upon the elderly
claimants entitlement to sacral security benefits and the
NO 2018 CA 000415 WC corresponding objective ofpreventing duplication ofbenefits
See Parker 529 S Wad at 767 68 ”jinn 969 S W 2d at 697
Ford Motor’s arguments concern what version of KRS
J42 730(4) 15 applicable to Pickett’s claim Following the *3 Previously, the Sliprcme C0111“: has Upheld thedictates of Holcrm, 331 s w 3d 37, we are constrained constitutionality of 3 workers’ compensation statute lunltlng
to conclude that the amended version of KRS :42 730(4) income bCHCfitS to claimants based 1113011 age
retroactively applies to Pickett’s claim Consequently, the ,Board and AL] erred by concluding otherwise Keeping in mind that the purpose of workers
compensation legrslatron 18 to maintain a stream of
income to disabled workers and their dependents, we are
persuaded that avoiding a duplication of income benefits
N0 2018 CA 000551 WC is a Iegitrmate state objective and sound public policy
See Brooks v Island Creek Coal Co supra. At a time
Pickett also raises arguments concerning the proper vers1on when workers become eligible for other forms of incomeof KRS 347 730(4) As betore stated the amended version replacement, not only does KRS 342 730(4) help avoid
of KRS .342 730(4)letroactlvely controls Prekett’s claim per making it more profitable to be disabled than not, it
110161,," 581 S W3d 37 also serves to reduce the overall cost of maintaining the
workers’ compensation system thereby improving thePlckett alternatively maintalns that the amended versron of economic climate for all the citizens of the state We,
KRS 342 730(4) 15 unconstitutional as vrolatlve of: the equal therefore, conclude that KRS 342 730(4) complies wrth the
protection clause and the due process clause We disagree requirements of due process and equal protection and is
constitutionalThe amended versron ofKRS 342 730(4) provrdcs mm" 969 S W 2d at 697 (citation omitted)
All income benefits payable pursuant to this chapter
shall terminate as of the date upon which the employee
Ford Motor Company (LAP) v Pickett Not Reported in S W Rptr (2020)
2020 WL 2298434
Upon the same reasoning, we believe the prevention of
duplication of benefits constitutes arational basis for treating It is true that the ‘rights of the parties in respect to
injured elderly claimants differently fiom injured younger compensation for injuries [become] fixed and vested on the
claimants in KRS 342 730(4) As a rational basis exists, we date ofthe injury ” Schmidt v. South Central Bell 340 S W3d
concludetlie classification contained in KRS 342 730(4) does 391 594 (Ky App 2011) (quoting Thomas 1!. Crimimies
not violate the constitutional guarantees of equal protection Creek Coal Co 179 S W 2d 882, 88.: (Ky 1944)) Herein,
or due process it is undisputed that Pickett 3 work related shoulder injury
occurred on July 13, 2015 On that date, the version of
Pickett timber asserts that the retroactive application of the KRS 342 730(4) in effect provrded that income benefits
amended version ofKRS 342 730(4) ofl'ends Sections 1, 2, 3, terminated when the claimant “qualified for normal old age
59, and 60 ofthe Kentucky Constitution Inparticular, Pickett social security retirement benefits” or two years after the
argues claimant’s injury, whichever occurred later in time Under
the amended version of KRS 342 730(4) income benefits
First, rctroactivity for certain sections 0f HE [House terminate when the claimant reaches seventy years old or
Bill] 2 and not others is arbitrary and violative [sic] 0f four years after the claimant’s injury whichever occurs latei
the due process and equal protection provisions 0f the in time Therefore, Pickett is actually entitled to benefitsKentucky Constitution There are no reasons or references of a longer duration under the amended version of KRS
by the Legislature in PB 2 for any ‘emergency need for 342 730(4) And, contrary to Pickett’s assertion, Pickett didretroactive application ofSection 20 subparagraph 3, or for not have avested right to income benefits unhampered by any
that matter, any provision OfHB 2 being an ‘ emergency’ version ofKRS 342 730(4) Therefore, we hold that no vested[sic] As such, the subject provrsion should not be permitted right of Pickettis was adversely impaired by the retroactive
to be retroactive and should only apply to cases involvrng application ofKRS 342 730(4)
injuries occurring after July 13, 2018
Second the classification of limited rctroactivity violates Pickett further 8?“? that the amended KR? 347 730(4)the provisions of the Kentucky Constitution prohibiting vrolated the constitutional prohibition as to special legislation
special legislation This amendment to KRS 342 730(4) contained in Kentuch'y Constitution Sections 59 and 60
In support thereof, Pickett maintains that KRS 342 730(4)applies to injured older workers but not all injured workersAs such, the subject provisron should not be permitted to applies to older injured workers but not to younger injured
workers thus creating the unconstitutional specral legislationbe retroactive and should only apply to cases involvrng
injuries occurring after July 13, 2018The Kentucky Supreme Court defines specral legislation as
In this case, the enacted amendment to KRS J4g 730(4) is ‘arbitrary and irrational legislation that favors the economic
clearly a substantive change in the law for Mr Pickett’s self interest of the one or the few over that of the many”
injury It is not remedial in that it directly affects Ml‘ Zrickermanv Bevm,363 S W 3d 580,599 (Ixy 2018) (citation
Pickett’s vested rights he: the Workers[’] Compensation omitted) It has been recognized that “[a] statute which relates
Act The change takes away benefits flom Mr Pickett to persons or things as a class is a general law, while a statute
which relates to particular persons or things of a class is
4 Although H8 2 specifically provides retroactive special " Id (citations omitted)
application, such a retroactive application may still
not infringe upon an injured workers {sic} rights and Here, the amended KRS 342 730(4) limits the duration ofconstitutional protections that vested on the date of his or income benefits for injured workers who are seventy years
her injury AS “1611, the 7-013 VCFSiOfl 0f KRS 343 730(4) old or older if their injury/disease occurred alter Decemberviolates prohibitions on retroactive application and should 12 1996 As such we believe the amended KRS J42 730(4)
be found by the Court ofAppeals to be unconstitutional treats older workers similarly, and as before determined,
Pickett’s Bnef at 18 19 SO, Pickett claims that retroactive there exrsts areasonable basis for the classification We, thus,
application of the amended version of KRS 342 730(4) conclude the amended KRS 342 730(4) does not constituteinfringes upon his right to recover workers’ compensation special legislation
benefits and unconstitutionally impairs his vested right to
Helton v TM Power Enterprises, Inc , Not Reported in S W Rptr (2020)
W————‘_———hflmu
Helton was injured at work on June 9, 2015 He asserted
2020 WL 2095875 a workers’ compensation claim against his employer, TM
Only the Westlaw citation is currently available Power Enterpnses, Inc Ultimately, he was ”Signed an 88%permanent impairment rating and was presumed totally and
Unpublished opinion See KY ST permanently disabled dueto his injury See KRS 342 001 1(1 1)
RCP Rule 76 28(4) before c1thg (c)5 The parties eventually settled most of Helton 5 claim,
agreeing he was entitled to receive weekly benefit payments
NOT TO BE PUBLISHED of $420 79 along with continuing medical treatment During
Court oprpeals 0f Kentucky the pendency of Helton’s claim, however, Parker v ll’ebstel
County Coal LLC (Don/r1 Mme) 529 S W 3d 739 (Ky 2017)
Anthony HELTON, Appellant was decided by the Kentucky Supreme Court. There it was
V determined that the version of KRS 342 730(4) in effect at
TM POWER ENTERPRISES, the time of Helton’s injury was unconstitutional because it
Violated prmcrples ofequal protection That versron prov1dedINC ; Hon Grant S Roark, in relevant part
Administrative Law Judge; and Workers’All income benefits payable pursuant to tins chapter shall
Compensation Board’ Appellees terminate as ofthe date upon which the employee qualifies
for normal old age Social Security retirement benefits
N0 2019 CA 001757 WC underthe United States Social Security Act 42 U S C secs
I 301 to 1397f or two (2) years after the employee 5 injury
MAY 1’ 2020’ 10 00 AM or last exposure, whichever last occurs
PETITION FOR REVIEW OF A DECISION OF THE Id at 766
WORKERS COMPENSATION BOARD ACTION NOWC 15 81290 When the Kentucky Supreme Court deemed this provisron
unconstitutional in Parker, it did so on narrow grounds
Attorneys and Law Firms The Court noted this provision had been unsuccessfully
challenged before by litigants who had argued it violated the
BRIEF FOR APPELLANT Peter I NW3; Louisville, so called jural rights doctrine, ’ principles of due process,
Kentucky and equal protection But, “equal protection” was the only
reason the Parker Court cited in favor of its conclusionBRIEF FOR APPELLEE TM POWER ENTERPRISES that the t tut 31 S ts
prov1sron was uncons 1 101'] ummarrzmg I
INC Douglas A U'Sellrs, Loursvrlle, Kentucky conclusion in that regard, the Court explained
BEFORE COWS KRAMER AND R THOMPSON The problem with KRS :42 730(4) is that it invidlouslyJUDGES discriminates against those who qualify for one type of
retirement benefit (social security) from those who do not
qualify for that type ofretirement benefit but do qualify for
OPINION another type of retirement benefit (teacher retirement)
KRAMER JUDGE Id at 769 (footnote omitted)
*1 Anthony Helton appeals a decision of the Workers‘ On July 14, 2018, while Helton’s claim remained pending,
Compensation Board (: Board”) aifirming a July 3, 2019, a new version of KRS 34?. 730(4) was enacted in response
opinion and order of an admimstrative law judge ( ALJ”) to Parker This version simply limited payment of income
that determined KRS 1 342 730(4) as amended July 14 benefits to the date on which the employee reaches the age of
2018, applied retroactively to terminate his award of inwme seventy (70)
benefits from TM Power Enterprises, Inc, .( TM Power”) Helton thereafier filed a “Notice of Constitutionalwhen he reaches the age of seventy Upon rev1ew, we afiirm
Challenge,” asserting that the application ofthe new versron
ofKRS 34?. 730(4) to his claim violated the contacts clauses
Helton v TM POWer Enterprises, Inc , Not Reported in S W Rptr (2020)
2020 WL 2095875
of the Kentucky and United States Constitutions Afier postfacto law in conflict with the contracts clauses of the
filing his notice, Helton settled his claim but reserved the Kentucky and United States Constitutions
overarching issue ofwhether the duration of his benefits was
properly limited by the new version 0f KRS 342 730(4) On We disagree 3 As Helton points out, Section 19(1) of the
April 9-3. 2019’ Helton the“ filed a “Motion For Ruling On Kentucky Constitution and Article 1, Section 10, Clause 1
Issues Not Decided By Settlement Agreement” requesting of the United States Constitution prohibit laws which impairthe AL] to determine the duration of his benefits pursuant the obligation of contracts But, they do not “prevent a state
to KRS 342 730(4) Helton’s arguments were three fold fiom enacting regulations or statutes which are reasonably
First, he contended the July 2018 amendment to KRS necessary to safeguard the vital interests ofits people ” Mme
’42 730(4) could not have retroactive effect because the v Bd ofDirectorsfor Commomvealth Postsecondaly EducGeneral Assembly had not specifically stated it was designed Prepaid Tut-“'0” 77 Fund 559 S w 3d 354 368 (Ky 2018)
to have retroactive efi'ect and because it impaired the vested (citation omitted) When determining whether alegislative act
rights Of injured workers See KRS 446 080(3) Second, as violated the contract impairment clause, we are to utilize theindicated, Helton asserted that any retroactive application following standaid
of the amended version of KRS 342 730(4) would violate
the contracts clauses of the Kentucky and United States (1) whether the legislation operates as a substantial
Constitutions Third, Helton argued that ifthe present version impairment of a contractual relationship, (2) if so, then
of KRS 342 730(4) is invalid, it is severable; and that other the inquiry turns to whether there is a significant and
portions ofthe act or prior versions ofKRS :42 730(4) that legitimate public purpose behind the regulation, such as
could otherwise take effect instead should effectively entitle the remedying of a broad and general social or economic
him to workers’ compensation benefits for the duration ofhis problem, and (3) if, as in this case, the government
disability, which is his lifetime is a party to the contract, we examine whether that
impairment is nonetheless permissible as a legitimate
*2 But, by way of an order entered July 8, 2019, the ALI exercise ofthe state’s sovereign powers,” and we determine
determined KRS 342 730(4) was intendedto have retroactive if the impairment is “upon reasonable condihons and of a
efi‘ect and thus limited payment of Helton’s benefits to character appropriate to the public purpose justifying its
Helton’s seventieth birthday Helton then appealed to the adoption ”
Board During the pendency of his appeal the Kentucky Id. at 369
Supreme Court rendered Halon" v SWilzfmd, 38! S W3d 37
(Ky 2019), which confirmed the ALJ’s interpretation and “The first step is determining ‘whether the state law has,
application of KRS 342 730(4) Id at 41 44 Accordingly, in fact, operated as a substantial impairment of a contractual
the Board affirmed, determining that “whether the amended relationship ’ ” Id at 369 70 (citations omitted) Here, Helton
version of KRS 342 730(4) has retroactive effect has been notes that past versions of KRS 342 730(4) have allowed
decided,” and that the third argument Helton had raised before a benefit recipient to receive benefits for life Specifically,
the ALJ was therefore moot the 1994 version of that statute allowed claimants to receive
benefits for life, although they were subject to reduction from
The ALI and Board did not address Helton’s constitutional time to time As TM Power points out, however, the new
arguments, however, because an administrative tribunal has version of KRS 342 730(4) enhanced, rather than impaired,
no authority to determine the constitutionality ofa statute See the benefits Helton otherwise would have received, whereas
Blue Diamond Coal Co v Comet! 300 Ky 647 189 S W2d the version of KRS 342 730(4) in effect at the time Helton
963 (1945) was injured would have terminated his benefits on his sixty
seventh birthday (I e , the date he would qualify for normal
In his present appeal before this Court, Helton has Wisely old age Social Security retirement benefits), the latestversion
abandoned his argument that KRS 342 730(4) was not does not terminate his benefits until his seventieth birthday
designated by the General Assembly to have retroactive *
effect 7 Rather, his focus is upon the constitutionality 3 The second stage 0f the analySIS ”diets a
of that provision Helton believes KRS 342 730(4) is determination 0f whether the "My imposed conditionsthat impair the contract can beJuStlfied by a Significant and
unconstitutional and has no effect upon his claim for workers’ legitimate public purpose Amend the purposes thatjustify
compensation benefits because, in his View, it is an ex b
Helton v TM Power Enterprises, Inc . Not Reported in S W Rptr (2020)
2020 WL 2095875
such impairment is legislation aimed at the remedying ofabroad and general social or economic problem Consrdermg the above, we believe retroactive application of
Id at 371 (citations omitted) In this respect, the Kentucky KRS 342 730(4) is reasonable and appropriate As prevrously
Supreme Court has found that limiting the duration ofbenefits stated, Ilmltlng the duratlon ofbenefits has been a part Ofthe
is justified by a legitimate public purpose The Court found fights, compensatron system “We 19% Parker found thethat limiting the duration of benefits solves two economic limitation which applied at that time to be unconstitutional
problems “(1) it prevents duplication of benefits, and (2) 329 S W M 759 The Kentucky Legislature needed to act
it results in savings for the workers’ compensation system ” quickly to return the workers’ compensation system to the
Parker 5298 W 3d at 768 This is evident from the fact some status quo Had the legislature not acted, employees who
version of limiting the duration of benefits has been in efi‘ect sun had workers’ compensatron claims Wind) were "0t finalin Kentucky since the 1996 version ofKRS 3342 730(4) between the rendering ofParker and the effective date ofthe
current version of KRS 342 730(4) could have been entitled
The third stage of the analysis examines Whether the to some amount ofbenefits for life This would have placed a
adjustment of“the rights and responsibilities ofconti acting large financial burden on the workers’ compensation system,
parties [is based] upon reasonable conditions and [is] of a employers, and insurers H0101?" holds that the Kentuckycharacter appropriate to the public purposejustifying [the Legislature specifically intended that the current version of
legislation’s] adoption ” Analysis under this prong varies KRS 342 730(4) apply retroactively 381 S W 3d :7 As wedepending upon whether the State is a party to the contract. have found it is constitutional, we conclude that it applies in
When the State itself is not a contracting party, [a]s is this case Accordingly, we AFFIRMcustomary in reviewing economic and social regulation,
courts properly defer to legislative judgment as to the
necessity and reasonableness ofa particular measure ” ALL CONCUR.
Mme, 559 S W 3d at 372 (citations omitted) The contracts
at issue here are not between individuals and the state, All Citations
but between an employee, an employer, and a workers’
compensation insurance provider We, therefore, will defer to NM Reported in S W RI"I 2020 WL 2095375
theJudgment ofthe legislature
Footnotes
1 Kentucky Revised Statute
2 Much of Helton s brief is dedicated to the argument both the ALJ and Board previously deemed moot 19 his assertion
that if the present versron of KRS 342 730(4) is invalid it is severable and that other portions of the act or prior
versions of KRS 342 730(4) that could otherwise take effect instead should effectively entitle him to ilfetlme benefits
Considering our disposition of this matter, it is unnecessary to address his assertion
3 in the recent case of Adams v Excel Mining LLC No 2018 CA 000925 WC 2020 WL 864129 (Ky App Feb 21 2020)
(unpublished) a panel of this Court considered and rejected substantially the same argument Helton offers in this appeal
Adams :3 currently pending review. but we agree with its reasoning and reach the same result
NO 2018 CA 000925 WC Appellant appealed to the Board The Board held the appeal
I in abeyance pending the outcome of Pal/re! v llebstei Cry
FEBRUARY 21 2020- 10 00 AM Coal LLC (Dotilri lime) 329 S W 3d 759 (Ky 2017) which
was before the Kentucky Supreme Court and was going to
PETITION FOR REVEW OF A DECISION OF THE determine whether KRS 342 730(4) was unconstitutional
WORKERS COMPENSATION BOARD ACTION NO Parker found the statute unconstitutional Once Parker was
WC 13 64729 rendered the Board ruled on Appellants appeal On May
Attorneys and Law Firms 18, 2018, the Board entered an order which upheld the
AL] 3 award of benefits The Board also held that because
BRIEF FORAPPELLANT C Phlllip Wheeler Jr Pikeville the version of KRS :42 730(4) In effect at the time wasKentucky unconstitutional, the prior version from 1994 would be
applied This version stated that benefits would be reduced
BRIEF FOR APPELLEE EXCEL MINING LLC Tarr1 by 10% when a recipient reaches age 65 Benefits would then
Smith Walters, Pikeville, Kentucky be further reduced another 10% every year until the recrpient
reaches age 70, at which point they will no longer be reducedBEFORE CLAYTON CHIEF JUDGE K THOMPSON
ANDL THOMPSON JUDGES Appellant then appealed to this Court Around the same
time, a new version of KRS 342 730(4) was being drafied
by the Kentucky Legislature This new version went into
OPINION efi‘ect on July 14, 2018 The new, and current, version of
THOMPSON L JUDGE KRS 342 730(4) states in pertinent part that [a]ll income
benefits payable pursuant to thIS chapter shall terminate as
*1 Teny Adams appeals fiOm an opinion of the Workers’ of the date upon which the employee reaches the age of
Compensation Board (hereinafter Boa1d’ ) which upheld an seventy (70): or four (4) years after the employee 5 “Um-VAdministrativeLanudge’s (hereinafter“ALJ”) orderthathe or last exposure, whichever last occurs” The Legislative
was permanently and totally disabled The only issue before Research Commissron (hereinafter “LRC”) note that went
us concerns how long Appellant is to receive his workers’ along With the statute states that KRS 342 730(4) was tocompensation benefits We hold that Appellant is subject to apply retroactively to all cases WhiCh have "0" been fullythe most recent version ofKentucky Revised Statutes (KRS) adjudicated, "“1“de those on appeal This retroactive342 730(4); therefore, we reverse and remand for the Board provision was ”(it Specifically set forth in the 5‘53th itself
Adams v Excel Mining LLC Not Reported in SW Rptr (2020)
2020 WL 864129
After Appellant appealed to this Court, we, on our own
motion, held it in abeyance pending the outcome off-101cm; (1) whether the legislation operates as a substantial
v Steward 581 s w 3d 37 (Ky 2019) The issue in that case impairment Of a mtmmal relatiOnShiP: (2) if so: the"was whether the current version of KRS 342 730(4) applied the inquiry turns to whether there is a significant andretroactively The Holcun Comt ultimately held that the LRC legitimate public purpose behind the regulation, such asnote applied and that the statute was retroactive Id at 44 the remedying ofa broad and general social or economic
problem, and (3) if, as in this case, the government
*2 We then removed this case from abeyance is a party to the contract, we examine “whether that
impairment is nonetheless permissible as a legitimate
exercise ofthe state’s sovereign powers, and we determine
if the impairment is “upon reasonable conditions and of a
ANALYSIS character appropriate to the public purpose Justifying its
Appellant argues that the Board erred in applying the 1994 adoption”
version of KRS 342 730(4), that the retioactiVity of the Id at 369
cunent version of KRS 342 730(4) is unconstitutional, and “ ‘
that he is entitled to full benefits for life The only issue The iii“ he" is deiemm'iig with“ the “a” ii“ has’we need address is whether the current version of kRS m fact, operatsd as a substantial impairment ofa contractual
342 730(4) is constitutional If it is, then Holczm requires that relationship 1d at 369 70 (Citations omitted)
it be applied to Appellant‘s benefits A significant consideration in this step ofthe analysis is the
extent to which the industry subject to the contract has been
Appellant argues that the retroactivny prowsion is an regulated in the past The rationale for this rule is thuslyunconstitutional expostfacto law The prohibition against ax stated t One whose rights, such as they are, are subject to
postfacto laws found in the United States Constitution and state restriction, cannot remove them flom the power ofthe
the Kentucky Constitution only applies to criminal matters, State by making a contract about them n
him/70,30" ii Jiidieiai Rel & Removal CO'ii’ii"i’ 367 S W2d *3 Id at 370 (citations omitted) Here, We belieVC the new:06, .308 (Ky 1978), however Section 19(1) ofthe Kentucky law substantially impairs Appellant s benefits Although the
Constitution and Article 1, Section 10, Clause 1 ofthe United workers compensation scheme is heavily regulated, past
States Constitution prohibit laws which impair the obligation versions ofKRS 342 73 0(4) have allowed a benefit recipient
ofcontracts This is Appellant’s argument He claims that the to receive benefits for life In fact, the 1994 version that was
retroactive application Of this statute infringes on his rights to be applied allowed Appellant to receive benefits for life,to recover workers’ compensation benefits pursuant to the although they were subject to reduction from timeto time The
statute in effect at the time Of his thiiiy In othei words, current version terminates benefits once Appellantreaches 70he agreed to take part in Kentucky’s workers’ compensation years of age
scheme and demands he receive the benefits he was entitled to
at the time he was injured, not pursuant to the new retroactive The second stage ofthe analysis involves a determination
regulation of whether the newly imposed conditions that impair the
contract can be justified by a significant and legitimateDespite the seemingly unequivocal language ofthe federal public purpose Among the purposes that justify such
and state Contract Impairment Clauses, [a] constitutional impairment is legislation aimed at the remedying ofa broadprohibition against impamng the obligation of contracts and general social or economic problem
is not an absolute one to be read with literal exactness Id at 371 (citations omitted) The Kentucky Supreme Court
The Contract Clause does not prevent a state from enacting has found that limiting the duration of benefits is justified byregulations or statutes which are reasonably necessary to a legitimate public purpose The Court found that limiting the
safeguard the vital interests ofits people” duration of benefits solves two economic problems “(1) itMa e 1!. Bd ofDirectorsfor Commomveallh Postsecondaly prevents duplication of benefits, and (2) it results in savings
Educ “We“, Tuition ii Fund’ 559 S Wad 354= 368 for the weikers’ compensation system ” Parker 529 S W3d(Ky 2018) (citation omitted) When determining whether a at 768 This is evident from the fact some version of limitinglegislative act Violated the contract impairment clause, we are the duration of benefits has been in efi‘ect in Kentucky since
to utilize the followmg standard the 1996 verSion of KRS 342 730(4)
Adams v Excel Mining LLC Not Reported in S W Rptr (2020)
2020 WL 864129
The third stage of the analysis examines whether the amount of benefits for life This would have placed a
adjustment 0?th rights and responsibilities ofcontracting large financial burden on the workers’ compensation system,
parties [is based] upon reasonable conditions and [is] of a employers, and insurers Holczm, supra holds that thecharacter appropriate to the public purpose justifying [the Kentucky Legislature specrfically intended that the current
legislation’s] adoption ” Analysis under this prong varies versron 0f KRS _347 730(4) apply retroactively AS. we havedepending upon whetherthe State is a party to the contract. found it is constitutional, we conclude that it applies in this
When the State itself is not a contracting party, “[a]s is case
customary in reviewing economic and social regulation,
courts properly defer to legislative judgment as to the
necessity and reasonableness of a particular measure ” CONCLUSION
Mme 559 S W3d at 372 (citations omitted) The contracts
at issue here are not between individuals and the state, Based on the foregoing, we reverse 311d remand this 0356 to
but between an employee, an employer, and a workers’ 3161303“! This casewas Sfillpeflding on appeal whenthenew
compensation insurance provider We, therefore, will defer to version OfKRS 342 730 became efi'ective, therefore, pursuantthe Judgment 01:th legislature to Hakim, it applies here We hold that the retroactive
application of KRS 342 730(4) does not infi'inge on the
We believe retroactive application of KRS 342 730(4) is contract imminent clauses of the Kentucky and Unitedreasonable and appropriate As previously stated limiting States Constitutions On remand, we instruct the Board to
the duration of benefits has been a part of the workers’ award Appellant benefits subject to the current version of
compensation system since 1996 Parker, supra, found the KRS 342 730(4)
limitation which applied at that time to be unconstitutional
The Kentucky Legislature had to act quickly to return the
workers’ compensation system to the status quo Had the ALL CONCUR
legislature not acted, employees who still had workers’
compensation claims which were not final between the All Citations
rendering of Parker and the effective date of the current
version of KRS 342 730(4) would be entitled to some NOtRePMedinSW RPtr 2°20WL354129
Donathan v Town and Country Food Mart Not Reported in S W Rptr (2019)
2019 WL 6998653
2019 WL 6998653
Only the Westlaw citation is currently available BACKGROUND
Unpublished opinion See KY ST On April 17, 2014, Donathan, a sixty nine year old woman,
RCP Rule 76 28(4) before Citing was injured while working as a cook at Town and Country
Food Martin Owingsville, Kentucky On that day, she slipped
NOT TO BE PUBLISHED and fell on melted Ice on the work premises She injured her
Court oprpeals 0f Kentucky left ankle, her left side and chest Thereafter, she received
medical treatment, but was unable to immediately return toShirley DONATHAN Appellant work
V.
TOWNAND COUNTRY FOOD MART; Donathan filed a workers' compensation action against Town
and Country and her claim was heard by an Administrative
Hon ROIand Case, Admmwtratwe Law Judge (ALI) on November 2 2015 The ALJ found
Law Judge; Andy Beshear, Kentucky Donathan permanently disabled and awarded her benefits
Attorney General, and the Workers' accordingly Benefits were to be paid in the sum of $225 per
C ti B 1d A E11665 week with 12% mterest on all due and unpaid installments
ompensa on Ca ’ pp ofthe compensation However, the benefits were to terminate
pursuant to KRS .342 730(4) as of the date when Donathan
NO 2018 Cr? 001371 WC qualified for Social Security retirement benefits
DECEMBER 20’ 2019 10 00 AM Donathan challenged the order‘s termination language in a
PETITION FOR REVIEW OF A DECISION OF THE petition for reconsideration The ALI denied the petition
WORKERS COMPENSATION BOARD ACTION NO prompting Donathan to file a notice of appeal to the Workers
WC 14 86413 Compensation Board The case was held in abeyance pending
the outcome of Kentucky Supreme Court case Parker v
Attorneys and Law Firms Webster County Coal LLC (Doll/n Mme) 529 S W 3d 759
(Ky 2017)BRIEF FOR APPELLANT Paula Richardson Owingsville
Kentucky In April 2017 the Supreme Court issued its ruling InBRIEF FOR APPELLEE Gregory L Little, Lexington, that opinion, the Court held the limitation of benefits at
Kentucky 8001a] Security retirement age under KRS 342 730(4) was
unconstitutional After Parker was rendered, the Board
BEFORE CLAYTON, CHIEF JUDGE ACREE AND entered its opinion in this case, vacating and remandng
NICKELL,1 JUDGES the ALPS Older It opined that Donathan should continue
to receive benefits without reduction or limitanon pursuant
to KRS 342 730(4) as the law existed prior to its 1996
amendmentOPINION
AGREE IUDGE On June 7 2018 Town and Country filed an appeal with the
Board arguing the issue should be revisited in light ofpending
*1 Shirley Donathan appeals the Worker-5' Compensation legislation Almost a month later on July 14, 2018, the
Board's August 17, 2018 Opinion and order adverse to her 2018 amended version ofKRS 342 730(4) became effective
She contends the Board erred by denying her lifetime benefits Because of this new version, the Board entered an opinion
in her workers' compensation claim under the language of and order affirming the ALJ'S origlnal decision This appeal
the newly enacted version of KRS 2 34?. 730(4) She also followedargues KRS 342 730(4) is unconstitutional Finding no error,
Donathan v Town and Country Food Mart Not Reported in S W Rptr (2019)
2019 WL 6998653
became effective The amended verSion of KRS 342 730(4)
STANDARD OF REVIEW reads
Our review of an opinion of the Workers‘ Compensation All income benefits payable pursuant to this chapterI shall terminate as of the date upon which the employee
Board is limited We only ieverse the Boards opinion l th f e e 70) f (4) fie the
when “the Board has overlooked or misconstrued controlling mac 165 6 age 0 s v nty ( ’ or our years a remployee's inJuiy or last exposuie, whichever last occurs
statutes or precedent, or committed an error in assessmg the,, In like manner all income benefits payable pursuant to this
eVidence so flagrant as to cause gross injustice IV Baptist h t to s 0 ses and dep d t hall terminate as ofc ap er p u en en 5 s
H (I A II 827SW2d 685 687 88 K I992asp: a v 6 J ( y ) the date upon which the employee would have reached age
The Court reviews questions of law, such as the seventy (:02 ”51011?” years afi;r in employee S date 0fc
constitutionality of statutes, usrng the de novo standard US $2213???)an o as exposure, w w ever as 0 curs
Bank Home Mortgage v Scliieckei , 455 S W 3d 382 384 (Ky ( )
2014) When determining the constitutionality of legislation,, The issue in this case was made more challenging by the
the court 3 sole duty is to lay the article of the constitutiOnfailure to codify subsection (3) of Section 20 of 2018 Ky
which is invoked beSide the statute which is challenged andActs ch 40 as part of the Kentucky ReVised Statutes Portions
to demde whether the latter squares With the former ” Fiscalof the Act passed by the General Assembly were omitted
Com! ofJefléison C01ml} v. City ofLomsvrlle 539 S W 7d fr th ft} 1 d f d fth K to R d
478, 481 (Ky 1977) (citation omitted) We take care not to °m 6 ° “3’ °° ‘ 1° “”5”“ ° C e" “‘5’ cm“Statutes A Legislative Research Comm1s510n note appears
weigh the merits of the legislative policy, and instead focus“ below the ofliCial versmn ofKRS 342 730 stating
only on whether the legislation is in accordance With or
in contravention of the provisions of the constitution ” 101 This statute was amended in Section 13 of 2013 Ky Acts
(citation omitted) ch 40 Subsection (3) of Section 20 of that Act reads,
Subsection (4) of Section 13 of this Act shall apply
pr05pectively and retroactively to all claims (a) For which
ANALYSIS the date of injury or date of last exposure occurred on or
after December 12 1996 and (b) That have not been fully
Retroactzvigg at ARS' 342 730(4) and finally adjudicated, or are in the appellate process, or
*2 Donathan argues the Board failed to apply the language for which time to file an appeal has not lapsed, as of the
oflxRS 342 730(4) in efi'ect at the time she was injured Given efi‘ective date ofthis Act ”
the Supreme Court‘s recent decision in Holcim v Swmfora', Howevei, this language failed to be included in the
581 S W 3d 37 (Ky 2019), we afiiim the Boaid's decision and codification as part ofKRS 342 730, but could only be found
find the statute retroactive in the codifier's notes to the statute Given the confusion
surrounding this issue, multiple cases flooded the court
The ALJ acknowledged the Kentucky Supreme Court‘s system While this case was before us, theKentuclcy Supreme
opinion in Parker, ”PM, WhiCh found the then current Court granted discretionary review of a similar workers'version of KRS 342 730(4) unconstitutional on equal compensation case Holcim v Swmford This Court abated
protection grounds Becauseaportion ofthe statutewas ruled this case and others in anticipation of a ruling fiom the
unconstitutional, the ALJ applied an earlier version of the Kentucky Supreme Court
statute, which included a tier system On appeal to the Board
Donatlian argued she ShOUId receive the film award With011t That Cou’rtissued its opinion in Holcrm v Swinfordon August
the tier system from the previous version ofthe statute utilized 29, 2019, holding KRS 342 730(4) must apply retroactively
by the ALI The Board agreed and held that Donathan was 381 S W 3d at 44 Because the newly enacted amendment
entitled to the full period of her benefits applies retroactively, it must be used to determine the duration
ofDonathan's benefits Thus, we affirm the Board's decision
Because of that ruling, Town and Country appealed to the
Board and pomted out proposed legislation pending before
the Kentucky General Assembly that might fiirther amend Constziutronali 0 KRS 342 730 4
KRS 342 730 Shortly after the appeal the amendment
Donathan v Town and Country Food Mart Not Reported in S W Rptr (2019)
2019 WL 6998653
3 Donathan also argues the newly enacted KRS 342 730(4) retirement program Therefore, the Court found the statute
is unconstitutional In determming the constitutionality of unconstitutional based upon there being no rational basis
a statute, courts apply three different scrutiny levels for treating other workers difl‘erently than teachers in the
st1ict, intermediate, and rational basis Vision Mining, Inc v commonwealth
Gardnel 364 S W 3d 455 465 66 (Ky 201]) The scrutiny
level applied depends on the classifications made in the Here, the disparate treatment 15 no longer 111$“! to Social
statute and the interests afiected Id at 465 (citation omitted) Security benefits Instead, the current and applicable V651”
Strict 01 intermediate scrutiny applies if a statute makes a 0f KRS 347 730(4) states “[a]11 income benefits shall
classification because of a suspect or quasi suspect class Id terminate as 0f the date upon which the employee reaches
at 466 (citation omitted) If the statute merely affects social Th? age 0f seventy UO)’ or tour (4) years after the employee‘s
or economic policy, it is subject to the rational basis test Id injury or 18“ exposure, whichever last occurs 5’
(Citation omitted)Applying the rational basis test, we find this version of the
Here, workers' compensation benefits concern social and statute constitutional The legislators enacted this version
economic policy, thereby requiring the rational basis test. in response to Parker We are also cognizant 0f the strongParker, 529 S W 3d at 767 (citation omitted) Courts will presumption of constitutionality afforded to legislative acts
uphold a statute if it passes the rational basis test, which Brooks v Island Creel Coal C0 ’ 678 S WM 791 792 (Ky
requires a ‘rational basis” or “substantial and justifiable App 1984) (citations omitted) Accordingly, we find thereason” supporting the classifications created Id (citation statute as enacted does not treat similarly situated persons
omitted) “Proving the absence of a rational basis or of a differently The statute allows for the benefits to terminate
substantial andjustifiable reason for a statutory provision is a upon reaching the age one’ or four years alter the employee's
steep burden, however, it is not an insurmountable one ” Id injury, whichever occurs last This stipulation rationally(citation omitted) relates to the government‘s basis for the legislation to
save taxpayer dollars allocated to the workers' compensation
Donathan argues KRS 342 730(4) is unconstitutional because system It places a limit on the amount 0f benefits every
of a perceived discrimination between older and younger person is awarded, not just a 3616“ group 0f individuals
injured workers This argument triggers the rational basis Therefore, we find the statute constitutional
analysis based on the alleged discrimination being age
related
CONCLUSION
Parker determmed the state‘s interest in age related disparate
treatment is to (I) prevent duplication of benefits, and (2) *4 For the foregoing reasons, we affirm the Workers‘
result in savings for the workers' compensation system 1d. Compensation Board's Aug-151 17, 2018 opinion and orderat 768 The Kentucky Supreme Court rejected the state's
argument the interest satisfied the rational basis test and ruled
the 1996 version unconstitutional The Court held the statute ALL CONCUR
unconstitutional because it treated workers who qualified for
Social Security differently than those who did not The Court All Citations
made the distinction that teachers who suffer work related
injuries are not subject to KRS 342 730(4) because they do N“ “PMed 1" S W RPtr 2019 WL 5998653not participate in Social Security, as they have their own
Footnotes
1 Judge C Shea Nickell concurred in this opinion priorto being sworn in as a Justice with the Supreme Court of Kentucky
Release of this opinion was delayed by administrative handling
