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Workers’
Compensation Board
OPINION ENTERED: May 4, 2018
CLAIM NO. 201499850
HEARTLAND CARES, INC. PETITIONER
VS.
APPEAL
FROM HON. CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE
SANDRA SANDERS
AND HON. CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
IN PART
VACATING
IN PART
AND
REMANDING
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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.
COUNSEL
FOR PETITIONER:
HON TIMOTHY WALKER
300 E MAIN ST #400
LEXINGTON, KY 40507
COUNSEL
FOR RESPONDENT:
HON CHUCK TVEITE
PO BOX 1937
PADUCAH, KY 42002
ADMINISTRATIVE
LAW JUDGE:
HON CHRIS DAVIS
ADMINISTRATIVE LAW JUDGE
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
