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May 11, 2018 201460488

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  May 11, 2018

 

 

CLAIM NO. 201460488

 

 

FLOYD UNDERHILL                                PETITIONER

 

 

 

VS.           APPEAL FROM HON. TANYA PULLIN,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

MERS, INC. AND

HON. TANYA PULLIN,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING

 

                       * * * * * *

 

 

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

 

ALVEY, Chairman.   Floyd Underhill (“Underhill”) appeals from the January 24, 2018 Opinion, Award and Order and the February 14, 2018 Order on petition for reconsideration rendered by Hon. Tanya Pullin, Administrative Law Judge (“ALJ”).  The ALJ awarded Underhill temporary total disability (“TTD”) benefits, permanent total disability (“PTD”) benefits and medical benefits for right upper extremity injuries he sustained on November 19, 2014.  On appeal, Underhill argues the ALJ erred in applying the tier-down provision contained in the 1994 version of KRS 342.730(4).  We disagree and affirm.  

          Underhill testified by deposition on August 14, 2017, and at the hearing held November 30, 2017.  Underhill was born on December 9, 1950, making him 64 years old at the time of his work injury.  Underhill worked for MERS, Inc., (“MERS”) as a meat cutter/butcher.  On November 19, 2014, Underhill was wearing a smock with sleeves while cutting country style ribs.  As he was cutting, a stack of meat fell, causing the sleeve of his smock to catch and pull his right arm into the saw blade, nearly amputating his right hand.  Underhill was air lifted to Vanderbilt Hospital in Nashville, Tennessee, where he underwent three surgeries, and a prolonged period of physical therapy.  Underhill did not return to work after the November 19, 2014 accident, and retired on December 31, 2015.  He now receives Social Security retirement benefits.   

     The ALJ determined Underhill is permanently and totally disabled.  Pursuant to Parker v. Webster County Coal, LLC (Dotiki Mine), 529 S.W.3d 759 (Ky. 2017), the ALJ determined Underhill’s award is subject to the tier-down contained in the 1994 version of KRS 342.730(4).  The ALJ awarded TTD and PTD benefits commencing on November 19, 2014, “and tiering down as per the 1994 version of KRS 342.730(4).”  The ALJ acknowledged that if she had not determined Underhill was permanently totally disabled, he would have been entitled to an award of permanent partial disability benefits based upon a 50% impairment rating enhanced by the three  multiplier contained in KRS 342.730(1)(c)1.  Underhill filed a petition for reconsideration essentially making the same arguments he now asserts on appeal, which the ALJ overruled in an Order dated February 14, 2018.   

          On appeal, Underhill argues the severability statute, KRS 446.090, is applicable and therefore the current version of KRS 342.730, without subsection four, should be used in determining his income benefits.  Underhill argues KRS 446.160 does not apply to KRS 342.730(4).  He also argues Legislative Research Com’n v. Fisher, 366 S.W.3d 905 (Ky. 2012) is not applicable since it dealt with only a bill, and not a statute from which an offending part could be severed. 

     Underhill also relies upon Cruse v. Henderson County Board of Education, 2015-SC-000506-WC (December 4, 2017)(Designated Not To Be Published), in which the Supreme Court remanded the claim to the ALJ for an award of benefits to an older worker, “with instructions to the ALJ to enter an opinion extending Cruse’s benefits for the appropriate time-period without regard to KRS 342.730(4).”  Underhill asserts Cruse clearly establishes the 1994 version of KRS 342.730(4) should not be applied.  Underhill argues the application of the 1994 version of KRS 342.730(4) is not in accord with KRS 446.090, 446.160, Parker v. Webster County Coal, LLC (Dotiki Mine), supra, or Cruse v. Henderson County Board of Education, supra.

          Underhill argues the 1994 version of KRS 342.730(4) discriminates against a certain class of injured workers, those who are under the age of sixty-five at the time of his or her injury, as well as other workers who have not paid into the Social Security system and will not receive retirement benefits.  Underhill asserts Cruse v. Henderson County Board of Education, supra, when read in conjunction with Parker v. Webster County Coal, LLC (Dotiki Mine), supra, clearly establishes limiting income benefits based upon age is discriminatory and a violation of equal protection.  He requests the Board remand the claim to the ALJ with instructions to award benefits without regard to KRS 342.730(4).

          Underhill argues KRS 342.730(4) is severable pursuant to KRS 446.090 since the statute prior to 1994 had been interpreted as granting lifetime benefits from total disability awards.  Underhill asserts KRS 342.730 can stand alone without the 1994 version, and there is no indication the General Assembly intended to revert to the tier-down if subsection four was found unconstitutional.  Underhill insists KRS 446.090 controls in this case rather than KRS 446.160. 

          In the alternative, Underhill argues if the tier- down version applies, then he is entitled to full benefits without the tier-down until he chooses to start drawing Social Security retirement benefits, citing Brooks v. Island Creek Coal Co., 678 S.W.2d 791 (Ky. App. 1984).

          In Parker v. Webster County Coal, LLC (Dotiki Mine), supra, the Kentucky Supreme Court concluded the manner in which income benefits were limited pursuant to KRS 342.730(4) is unconstitutional because it treats injured older workers in the Commonwealth who do not qualify for old-age Social Security benefits differently from all other injured older workers in the Commonwealth who qualify for old-age Social Security benefits. 

          In determining that income benefits are to be calculated pursuant to the tier-down provision contained in the previous 1994 version of KRS 342.730(4), this Board provided the following analysis in Ray Pickett v. Ford Motor Co., Claim Number 2015-01910, rendered February 16, 2018:     

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.

 

          Despite Underhill’s arguments to the contrary, we adhere to the reasoning set forth above in holding income benefits are to be calculated pursuant to the tier-down provision pursuant to the previous version of KRS 342.730(4). 

          We rely upon Legislative Research Com’n v. Fischer, 366 S.W.3d 905 (Ky. 2012) where the Court held 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.  The Court in Parker v. Webster County Coal, LLC (Dotiki Mine), supra, did not abolish KRS 342.730(4).  Since this was an amendment to an existing statute, the 1994 version is in effect.

          We also find Underhill’s reliance on Cruse v. Henderson County Board of Education, supra, is misplaced.  There, the claimant was 71 years old at the time of his injury.  This Board previously determined, and the Court of Appeals affirmed in the unpublished decision rendered in Richardson Hardware, Inc. v. Bridges, 1996-CA-1709 (rendered May 39, 1997), the tier-down provision contained in the 1994 version of KRS 342.730(4) did not apply when a claimant is over the age of 65 at the time of his injury.  The Court in Cruse did not hold the prior version of KRS 342.730(4) was inapplicable to all claims.  Rather, according to the clear language of the statute, the provision had no application in Cruse’s specific claim because he was over the age of 65 at the time of his injury.  Further, there is no language from the Supreme Court indicating since KRS 342.730(4) is unconstitutional, the claimant is entitled to an unaltered award of income benefits.  The Supreme Court’s refusal to make such a statement led to our decision in Pickett, and we will consistently adhere to our decision until informed otherwise.

          Finally, we note Underhill has argued on appeal KRS 342.730(4) as it existed in 1994 is unconstitutional.  We lack the jurisdiction to decide the constitutionality of the statute in question.  Therefore, we must affirm the ALJ’s application of that statute, subject to our findings above.  Blue Diamond Coal Company v. Cornett, 300 Ky. 647, 189 S.W.2d 963 (1945).

          Therefore, since Underhill was 64 years old at the time of his injury, KRS 342.730(4) must be applied as it existed prior to the 1996 amendment.  

          Accordingly, the January 24, 2018 Opinion, Award and Order and the February 14, 2018 Order on petition for reconsideration rendered by Hon. Tanya Pullin, Administrative Law Judge, are hereby AFFIRMED.

          ALL CONCUR.

 

 

 

COUNSEL FOR PETITIONER:

 

HON GEORDIE GARATT

PO BOX 1196

PADUCAH, KY 42002

 

COUNSEL FOR RESPONDENT:

 

HON R CHRISTION HUTSON

PO BOX 995

PADUCAH, KY 42002

 

ADMINISTRATIVE LAW JUDGE:

 

HON TANYA PULLIN

657 CHAMBERLIN AVE

FRANKFORT, KY 40601