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January 15, 2016 201285818

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  May 4, 2018

 

 

CLAIM NO. 201400029

 

 

DARRELL MONYHAN                                PETITIONER

 

 

 

VS.                         

APPEAL FROM HON. R. ROLAND CASE,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

DENNIS McGREGOR

UNINSURED EMPLOYERS FUND

AND HON. R. ROLAND CASE,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING

 

                       * * * * * *

 

 

BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members. 

 

 

RECHTER, Member.  Darrell Monyhan (“Monyhan”) appeals from the January 22, 2018 Opinion, Award and Order and the February 6, 2018 Order on Reconsideration rendered by Hon. R. Roland Case, Administrative Law Judge (“ALJ”).  The ALJ awarded Monyhan permanent partial disability (“PPD”) benefits, subject to the limitations set forth in KRS 342.730(4).  Monyhan argues the ALJ erred in limiting his income benefits to the limitations set forth in KRS 342.730(4) as amended in 1994.  For the reasons set forth herein, we affirm.

     Monyhan was injured when he fell from a roof while working on a chimney.  The ALJ determined he suffers a 13% whole person impairment rating and awarded PPD benefits.  The ALJ further stated: “The benefits are subject to the limitations set forth at KRS 342.730(4) as amended in 1994.”

     Monyhan petitioned for reconsideration, which was denied.  He now appeals, arguing the Kentucky Supreme Court’s decision in Parker v. Webster County Coal (Dotiki Mine), LLC, 529 S.W.3d 759 (Ky. 2017), deemed KRS 342.730(4) unconstitutional.  As Monyhan accurately asserts, the Court concluded KRS 342.730(4) treats older workers who do not qualify for old-age Social Security benefits differently from those who do, in violation of the Equal Protection clause.  Monyhan goes further to claim that the Parker Court effectively voided that subsection, it no longer exists and cannot be relied upon to limit awards of income benefits. 

          We have recently explained our belief that the pre-amendment version of KRS 342.730(4) controls.  In Pickett v. Ford Motor Co., Claim No. 2015-01910, (WCB February 16, 2018), we explained:

[T]he Supreme Court’s pronouncement in Parker lacks guidance as to how income benefits should now be calculated for injured older workers. In other words, should income benefit calculations for injured older workers be devoid of any age-related restrictions or should income benefit calculations revert back to the previous version of KRS 342.730(4) immediately preceding the 1996 version? Having had another opportunity to offer guidance in Cruse v. Henderson, Not To Be Published, 2015-SC-00506-WC (December 14, 2017), the Supreme Court declined. Thus, this Board must turn to other sources in order to address this inquiry.

 

     The previous version of KRS 342.730(4) 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.

 

     The above-cited language does not induce the same constitutional quandary identified by the Parker Court, as the tier-down directed in the previous version of KRS 342.730(4) does not differentiate between injured older workers eligible for old-age Social Security benefits and those who are not. All workers injured before the age of sixty-five are subject to the tier-down provisions regardless of their eligibility for Social Security benefits. The previous version of KRS 342.730(4) does, however, differentiate between injured younger workers and injured older workers, because those injured above the age of sixty-five are not subjected to the tier-down. The Parker Court has already addressed the rational basis of providing for such a distinction:

 

The rational bases for treating younger and older workers differently is: (1) it prevents duplication of benefits; and (2) it results in savings for the workers' compensation system. Undoubtedly, both of these are 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 do so.

Id. at 768.

 

     However, there must be a determination of whether the Supreme Court’s pronouncement in Parker revives the previous iteration of KRS 342.730(4).

 

KRS 446.160 states as follows:

 

If any provision of the Kentucky Revised Statutes, derived from an act that amended or repealed a pre-existing statute, is held unconstitutional, the general repeal of all former statutes by the act enacting the Kentucky Revised Statutes shall not prevent the pre-existing statute from being law if that appears to have been the intent of the General Assembly.

(Emphasis added).

 

     In making an educated assessment of the legislative intent at the time the current version of KRS 342.730(4) was enacted in 1996, we turn to a contemporaneous provision, contained in the 1996 legislation, in which the legislature addressed the dire need to preserve the long-term solvency of the Special Fund, now the Division of Workers’ Compensation Funds, which reads as follows:

 

Section 90. The General Assembly finds and declares that workers who incur injuries covered by KRS Chapter 342 are not assured that prescribed benefits will be promptly delivered, mechanisms designed to establish the long-term solvency of the special fund have failed to reduce its unfunded competitive disadvantage due to the cost of securing worker’s vitality of the Commonwealth’s economy and the jobs and well-being of its workforce. Whereas it is in the interest of all citizens that the provisions of this Act shall be implemented as soon as possible, an emergency is declared to exist, and this Act takes effect upon its passage and approval by the Governor or upon its otherwise becoming a law.

                                          

     The language of Section 90 indicates the legislature, at the time the 1996 version of KRS 342.730(4) was enacted, intended to preserve the solvency of the Special Fund. Indeed, the language used in Section 90 speaks to this intent as being “an emergency.” This legislative intent cannot be ignored in the wake of the Supreme Court’s determination the 1996 version of KRS 342.730(4) is unconstitutional. This expressed concern certainly bolsters the conclusion the legislature contemplated a revival of the tier-down provisions in the previous version of KRS 342.730(4).

 

     Accordingly, we hold that income benefits are to be calculated pursuant to the tier-down formula as set forth in the pre-existing version of KRS 342.730(4) in place when the statute in question was enacted in 1996. As the record indicates Pickett was sixty at the time of the July 13, 2015, injury to his left shoulder, and the ALJ awarded PPD benefits commencing on July 13, 2015, we vacate the ALJ’s award of PPD benefits which are “subject to the limitations set forth in KRS 342.730(4)” and remand for a revised calculation of PPD benefits and an amended award consistent with the views set forth herein.

 

          Monyhan was not sixty-five years old at the time of his injury.  Therefore, his award is subject to the tier-down provision contained in KRS 342.730(4) enacted in 1994.

          Accordingly, the January 22, 2018 Opinion, Award and Order and the February 6, 2018 Order on Reconsideration rendered by Hon. R. Roland Case, Administrative Law Judge,  are hereby AFFIRMED.  

          ALL CONCUR.

 

 

COUNSEL FOR PETITIONER:

 

HON WAYNE DAUB

600 W MAIN ST #300

LOUISVILLE, KY 40202

 

COUNSEL FOR RESPONDENT, UNINSURED EMPLOYERS’ FUND:

 

HON WILLIAM JONES

1024 CAPITAL CENTER DRIVE

SUITE 200

FRANKFORT, KY 40601

 

RESPONDENT:

 

DENNIS MCGREGOR

6603 SIX MILE LANE

LOUISVILLE, KY 40218

 

ADMINISTRATIVE LAW JUDGE:

 

HON R ROLAND CASE

ADMINISTRATIVE LAW JUDGE

PREVENTION PARK

657 CHAMBERLIN AVENUE

FRANKFORT, KY 40601