January 15, 2016 201285818

Commonwealth of Kentucky 

Workers’ Compensation Board







CLAIM NO. 201499850



HEARTLAND CARES, INC.                          PETITIONER




















                       * * * * * *



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



RECHTER, Member.  Heartland Cares, Inc. (“Heartland”) appeals from the December 12, 2017 Opinion, Award and Order and the January 4, 2018 Order rendered by Hon. Chris Davis, Administrative Law Judge (“ALJ”), awarding Sandra Sanders (“Sanders”) temporary total disability and permanent partial disability benefits for injuries to her lower back and right leg.    

          Heartland indicates it filed this appeal to preserve for further appeal its argument that the Supreme Court erroneously decided Parker v. Webster County Coal, LLC (Dotiki Mine), 529 S.W.3d 759 (Ky. 2017).  In the alternative, Heartland argues the ALJ erred in failing to state specifically that the award of income benefits is subject to the provisions of KRS 342.730(4) in effect prior to the 1996 amendment.  For the reasons set forth herein, we vacate in part and remand.

          Sanders filed her claim on November 24, 2014, alleging injuries on November 15, 2013.  Sanders was fifty-eight years old at the time of the injury.  The ALJ found Sanders permanently partially disabled from the date of injury, and temporarily totally disabled from December 16, 2013 through September 1, 2016.  Those findings are not at issue on appeal.  The ALJ’s award provided for 425 weeks of permanent partial disability benefits, but did not refer to the tier-down provision in the 1994 version of KRS 342.730(4).  Heartland filed a petition for reconsideration requesting correction of erroneous references to surgery and reconsideration of the ALJ’s selection of an impairment rating.  Heartland did not raise any issue regarding the application of the holding in Parker or the tier-down provision of the 1994 version of KRS 342.730(4).

          We recently dealt with the issue of the applicable version of KRS 342.730(4) following finality of the decision in Parker.  In Pickett v. Ford Motor Co., Claim No. 2015-01910, rendered February 16, 2018, we hold as follows:

     The Supreme Court determined the 1996 version of KRS 342.730(4) does not pass constitutional muster because it treats injured older workers in the Commonwealth who do not qualify for old-age Social Security benefits, such as teachers, differently from all other injured older workers in the Commonwealth who qualify for old-age Social Security benefits. That said, the 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.

          In accordance with our holding in Pickett, and because Sanders was not sixty-five years old at the time of the November 15, 2013 injury, the claim must be remanded for entry of an award of permanent partial disability benefits subject to the tier-down provision contained in KRS 342.730(4) as enacted in 1994.  As this is purely a question of law and not a question of fact, Heartland was not required to file a petition for reconsideration.  See KRS 342.285; See Bullock v. Goodwill Coal Co., 214 S.W.3d 890 (Ky. 2007).

          Accordingly, the December 12, 2017 Opinion, Award and Order and the January 4, 2018 Order rendered by Hon. Chris Davis, Administrative Law Judge, are hereby AFFIRMED IN PART, VACATED IN PART and REMANDED to the ALJ for entry of an amended award of PPD benefits in accordance with the views expressed herein.

          ALL CONCUR.








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