*/
Workers’
Compensation Board
OPINION ENTERED: May 4, 2018
CLAIM NO. 201369397
CARDINAL RIVER INC. PETITIONER
VS. APPEAL FROM HON. MONICA RICE-SMITH,
ADMINISTRATIVE
LAW JUDGE
JOSEPH SABO and
HON. MONICA RICE-SMITH,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
AND
JOSEPH SABO PETITIONER
VS.
CARDINAL RIVER INC. and
HON. MONICA RICE-SMITH,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
* * * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER,
Members.
ALVEY, Chairman. Joseph Sabo (“Sabo”) and Cardinal River, Inc. (“Cardinal River”) appeal
from the Opinion, Order and Award rendered November 27, 2017 by Hon. Monica
Rice-Smith, Administrative Law Judge (“ALJ”).
The ALJ awarded Sabo temporary total disability (“TTD”) benefits,
permanent total disability (“PTD”) benefits and medical benefits for
work-related injuries he sustained on September 2, 2013 while working for
Cardinal River. The ALJ determined
Sabo’s award is subject to the tier down provision contained in the pre-1996
version of KRS 342.730(4). Sabo and
Cardinal River also appeal from the January 3, 2018 order denying their
petitions for reconsideration.
On appeal, Sabo argues
the ALJ erred in applying the tier-down provision of KRS 342.730(4) as it
existed prior to the 1996 changes to the Kentucky Workers’ Compensation Act. Cardinal River argues the ALJ erred in
awarding lifetime benefits subject to the tier down provisions contained in the
pre-1996 version of KRS 342.730(4).
Because we determine the ALJ did not err in applying the tier down
provision contained in the pre-1996 version of KRS 342.730(4), and additionally
because the Kentucky Supreme Court’s holding in Parker v. Webster County Coal, LLC
(Dotiki Mine), 529 S.W.3d 759 (Ky. 2017) is final, we affirm.
Sabo filed a Form 101
on May 5, 2017 alleging he injured both legs, right ankle and right heel when
he fell from a ladder at work on September 2, 2013. Sabo worked primarily in maintenance and as
a mechanic for various employers until the date of the injury. He began working for Cardinal River in
2009. While employed there, he
maintained several buildings in downtown Paducah, Kentucky. He also performed maintenance at his
employers’ home.
Sabo testified by
deposition on July 16, 2017, and at the hearing held September 26, 2017. Sabo is resident of Paducah, Kentucky. He is a high school graduate, and had two
years of maintenance and welding training.
Sabo sustained previous injuries to his neck and lungs (due to
inhalation of hydrofluoric acid) while working for a previous employer. Both of those injuries had resolved prior to
the September 2, 2013 accident. Sabo was
on a ladder at the time of the work accident, removing tree limbs from a
structure. He misstepped while
attempting to climb down the ladder and fell.
He landed on both feet, but struck his face numerous times on the ladder
as he fell.
Sabo’s wife took him to
the hospital, and he later underwent two right foot surgeries. The second surgery included the placement of
hardware and screws, which he testified might later require removal. Sabo testified he had never previously
experienced problems with right foot and ankle. He has not returned to work since the date of
the accident except for performing occasional errands for his neighbor. Sabo testified he has difficulty walking more
than two hundred feet at a time, after which he has to rest. Because of the work-injuries, Sabo takes
medication and has had injections. He
also uses a cane prescribed by Dr. William Adams, his treating orthopedic
surgeon.
The parties submitted
records and reports from Drs. Adams, Andrew DeGruccio, and Robert M.
Weiss. We will not discuss the medical
evidence since it is not pertinent to the issues on appeal.
A benefit review
conference (“BRC”) was held on September 12, 2017. The BRC Order and Memorandum reflects the
issues preserved for resolution included whether Sabo retains the physical
capacity to return to the type of work performed at the time of injury,
benefits per KRS 342.730, TTD duration, and credit for pre-existing disability/
impairment.
The ALJ rendered the
Opinion, Order and Award on November 27, 2017.
The ALJ found Sabo permanently totally disabled due to the injuries he
sustained at work on September 2, 2013, and awarded PTD benefits. The ALJ granted Cardinal River credit for the
overpayment of TTD benefits. The ALJ
determined treatment with Lyrica is reasonable and necessary. The ALJ additionally determined Sabo’s award
is subject to the tier down provision contained in KRS 342.730(4) as it existed
prior to the 1996 changes. She acknowledged
the Kentucky Supreme Court found the 1996 changes to that statute
unconstitutional in Parker v. Webster County Coal, LLC (Dotiki
Mine),
supra. However, she noted the
court in Wynn v. Ibold, Inc., 969 S.W.2d 695 (Ky. 1998) had previously
determined the statute as it existed prior to 1996 was constitutional.
Both
Sabo and Cardinal River filed petitions for reconsideration. Sabo argued the ALJ erred in applying the
tier down provision contained in the pre-1996 version of KRS 342.730(4) since
the decision in Parker v. Webster County Coal, LLC (Dotiki Mine), supra,
found the provision unconstitutional.
Cardinal River argued that case was not final, and the ALJ should have
ordered Sabo’s benefits terminate as of the date he qualifies for normal old
age Social Security retirement benefits rather than lifetime benefits subject
to the tier down. The ALJ denied both
petitions for reconsideration by order dated January 3, 2018.
On
appeal, Sabo argues KRS 342.730(4) as it existed prior to the 1996 changes is
unconstitutional. Cardinal River argues
the ALJ erred in awarding lifetime benefits subject to the tier down provision
contained in the pre-1996 version of KRS 342.730(4). We disagree, and affirm.
We agree the court found KRS
342.730(4), as amended in 1996, is unconstitutional in Parker v. Webster County
Coal, LLC (Dotiki Mine), supra.
That case is now final, and this Board must apply that holding to all
decisions that have been timely appealed.
As noted in the holding in Legislative Research Com’n v. Fischer,
366 S.W.3d 905 (Ky. 2012), an unconstitutional statute is null and void from
the date of its enactment, and therefore it practically never existed. The result is that the unconstitutional
statute’s pre-amendment version controls.
Mosely v. Commonwealth Dept. of Highways, 489 S.W.2d 511 (Ky.
1972); Commonwealth v. Malco-Memphis Theatres, 169 S.W.2d 596 (Ky.
1943). In this instance, the 1996
version of KRS 342.730(4), which was an amendment to an existing provision, was
found unconstitutional. Since this was
an amendment to an existing statute, the 1994 version is in effect.
The ALJ
appropriately determined the application of the tier down provision contained
in KRS 342.730(4) as it existed in 1994 was appropriate. Because Sabo was not yet 65 years old at the
time of his September 2, 2013 work injury, the tier down provision contained in
the pre-1996 version of KRS 342.730(4) is applicable. That version reads as follows:
If
the injury or last exposure occurs prior to the employee’s sixty-fifth
birthday, any income benefits awarded under KRS 342.750, 342.316, 342.732, or
this section shall be reduced by ten percent (10%) beginning at age sixty-five
(65) and by ten percent (10%) each year thereafter until and including age
seventy (70). Income benefits shall not be reduced beyond the employee’s
seventieth birthday.
That
version of KRS 342.730(4) became effective on April 4, 1994. The full
force and effect of the statute has withstood constitutional challenge.
Our appellate courts have held that this statute does not violate age
discrimination, equal protection or due process under constitutional
guarantees. See Edwards v.
Louisville Ladder, 957 S.W.2d 290 (Ky. App. 1997), and Wynn v. Ibold, Inc., supra. In Wynn v. Ibold, 696 S.W.2d at 697, the Court held as follows:
Keeping in mind that the purpose of workers'
compensation legislation is to maintain a stream of income to disabled workers
and their dependents, we are persuaded that avoiding a duplication of income
benefits is a legitimate state objective and sound public policy. See Brooks v. Island
Creek Coal Co., supra. At a time when workers become eligible for other forms
of income replacement, not only does KRS 342.730(4) help avoid making it more profitable to be disabled
than not, it also serves to reduce the overall cost of maintaining the workers'
compensation system, thereby improving the economic climate for all the
citizens of the state. We, therefore, conclude that KRS 342.730(4) complies with the requirements of due process and
equal protection and is constitutional. See
also, Edwards v.
Louisville Ladder, Ky. App.,
957 S.W.2d 290 (1997).
With regard to the argument that the “tier
down” of benefits for elderly workers conflicts with Chapter 344, we remind
claimant that the legislature was fully aware of Chapter 344 when it enacted KRS 342.730(4) and that Chapter 344 does not pertain to enactments
of the legislature. As applied to these facts, Chapter 344 prohibits employment
discrimination on the basis of age. Since there is no indication that
claimant's employer failed to afford him the full benefit of the Workers'
Compensation Act due to his age, we conclude that this argument is without
merit.
In its brief, Cardinal River argues that House Bill 2 passed in the
recent legislative session controls, and therefore this Board should vacate the
ALJ’s decision and remand for a determination terminating Sabo’s benefits at
age 70. However, those changes do not
become effective until July 14, 2018. Therefore,
because the ALJ’s determination regarding the tier down of Sabo’s benefits is
consistent with the previous determination by the Kentucky Supreme Court, it
will not be disturbed.
Accordingly, the November 27, 2017 decision and the January 3, 2018
order on petition for reconsideration issued by Hon. Monica Rice-Smith, Administrative Law Judge, are hereby AFFIRMED.
ALL CONCUR.
COUNSEL FOR PETITIONER CARDINAL RIVER INC.:
HON
R CHRISTION HUTSON
PO
BOX 995
PADUCAH,
KY 42002
COUNSEL FOR RESPONDENT JOSEPH SABO:
HON
CHUCK TVEITE
PO
BOX 1837
PADUCAH,
KY 42002
ADMINISTRATIVE LAW JUDGE:
HON
MONICA RICE-SMITH
657
CHAMBERLIN AVE
FRANKFORT,
KY 40601
