Workers’
Compensation Board
OPINION ENTERED: May 18, 2018
CLAIM NO. 201364729
TERRY ADAMS PETITIONER
VS.
APPEAL
FROM HON. CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE
EXCEL MINING, LLC
AND HON. CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
IN PART
VACATING
IN PART
AND
REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER, Member. Terry Adams (“Adams”) appeals from
the April 25, 2016 Opinion, Award and Order and the May 23, 2016 Order on
Reconsideration rendered by Hon. Chris Davis, Administrative Law Judge
(“ALJ”). The ALJ concluded Adams is
permanently totally disabled as a result of a low back injury and work-related
hearing loss. On appeal, Adams argues he
is entitled to income benefits from the date of injury, and the tier-down
provisions of KRS 342.730(4) should not apply to his claim. For the reasons set forth herein, we remand
this claim to the ALJ.
The factual background necessary to decide
this appeal is uncontested. On October
3, 2013, Adams injured his low back while working as an underground mine
electrician and crew leader for Excel Mining, LLC (“Excel”). He also developed work-related hearing loss
during his 38-year career as a miner.
After the October 3, 2013 injury, Adams worked light duty until November
26, 2013, when he was laid off.
The ALJ determined Adams reached maximum
medical improvement for the low back injury on April 3, 2014. He further determined Adams returned to the
majority of his normal job tasks during his period of light duty, and the work
was bona fide work of genuine benefit to Excel.
On this basis, the ALJ declined to award temporary total disability
benefits during Adams’ period of light duty work. This conclusion has not been appealed.
The ALJ then determined Adams is
permanently totally disabled. This
conclusion has not been appealed. The ALJ
began the award of permanent total disability (“PTD”) benefits on November 27,
2013, the day after Adams was laid off, and continued the award for a period of
104 weeks. The ALJ further stated he
lacked authority to consider Adams’ challenge to the constitutionality of KRS
342.730(4).
Both parties petitioned for
reconsideration, asking the ALJ to begin the award of PTD benefits on the date
of injury. Adams further argued Excel is
not entitled to a credit for the wages he earned during the period of light
duty. Excel requested the ALJ to order
PTD benefits commencing on October 3, 2013, but it not be ordered to commence
income benefit payments until November 27, 2013. The ALJ declined the petition, explaining
Adams “continued to work for [Excel], performing genuine work and paid bona
fide wages between October 3 and November 26, 2013, he was not totally disabled
during that time, even if relying partially on the forbearance of [Excel].”
Adams now appeals. He first argues he is entitled to lifetime PTD
benefits with no reduction. The ALJ
awarded PTD benefits for a period of 104 weeks commencing on November 27,
2013. According to Adams, the Kentucky
Supreme Court’s ruling in Parker v. Webster County Coal, LLC (Dotiki Mine),
529 S.W.3d 759 (Ky. 2017), declared KRS 342.730(4) unconstitutional and
effectively eliminated the required cessation of PTD benefits when the claimant
reaches Social Security old age retirement.
He argues he is entitled to a lifetime award.
We acknowledge the Parker case, and
have recently expressed our opinion that the 1994 version of KRS 342.730(4) has
been revived. In Pickett v. Ford
Motor Co., Claim No. 2015-01910 (WCB February 16, 2018), we held:
The version of KRS 342.730(4) the Parker
Court deemed unconstitutional, enacted in 1996, states in pertinent part:
All
income benefits payable pursuant to this chapter shall terminate as of the date
upon which the employee qualifies for normal old-age Social Security retirement
benefits under the United States Social Security Act, 42 U.S.C. secs. 301 to 1397f, or two (2) years after the
employee's injury or last exposure, whichever last occurs.
[T]he equal protection problem with KRS 342.730(4) is that it treats injured
older workers who qualify for normal old-age Social Security retirement
benefits differently than it treats injured older workers who do not qualify. As Justice Graves noted in
his dissent in McDowell, “Kentucky teachers ... have a retirement
program and do not participate in social security.” 84 S.W.3d at 79. Thus, a teacher who has not had any outside
employment and who suffers a work-related injury will not be subject to the
limitation in KRS 342.730(4) because that teacher will never qualify for
Social Security retirement benefits. There is no rational basis for treating
all other workers in the Commonwealth differently than teachers. Both sets of
workers will qualify for retirement benefits and both have contributed, in
part, to their “retirement plans.” However, while teachers will receive all of
the workers' compensation income benefits to which they are entitled, nearly
every other worker in the Commonwealth will not. This disparate treatment does
not accomplish the goals posited as the rational bases for KRS 342.730(4). The statute does prevent
duplication of benefits, but only for non-teachers because, while nearly every
other worker is foreclosed from receiving “duplicate benefits,” teachers are
not.
Id. at 768 (emphasis added).
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.
Adams relies on Cruse v. Henderson
County Board of Education, id., to support his argument that the
tier-down provisions of the 1994 statute should not apply. However, the claimant in Cruse was 71 years
old at the time of her injury. Adams was
64 years-old at the time of his injury.
As such, we believe this claim must be remanded for entry of an award of
PTD benefits subject to the tier-down provision contained in KRS 342.730(4) as
enacted in 1994.
Adams next argues the award of PTD
benefits must commence on the date of injury, not on the date he ceased
working. Permanent total disability is
“the condition of an employee who, due to an injury, has a permanent disability
rating and has a complete and permanent inability to perform any type of work
as a result of the injury.” KRS
342.0011(11)(c). The condition of being
disabled typically commences on the date of injury, though sometimes occurs
after a latency period. Sweasy v.
Walmart, 295 S.W.3d 835 (Ky. 2009)(analyzing the commencement date of an
award of permanent partial disability benefits).
However, there are circumstances under
which the condition of permanent total disability does not arise until the
claimant ceases working. In Underwood
v. Pella Windows Depe PLLC, 2017-WL-1203227 (Ky. App. 2017)[1],
the Court of Appeals affirmed an opinion of this Board in which we determined
“as a matter of law, a worker cannot be considered totally permanently disabled
during a period he continues to work at his regular job, with no
accommodations, at full wages.” Because
Underwood worked for several months after his date of injury, the Court of
Appeals concluded his award of PTD benefits could not commence until he ceased
working. Still, under exceptional
circumstances, a claimant may continue to labor and earn wages during a period
of permanent total disability. Gunderson
v. City of Ashland, 701 S.W.2d 135 (Ky. 1985).
Here,
the ALJ determined Adams’ permanent total disability arose on the date he was
laid off, not the date of injury. There
is substantial evidence in the record to support this determination, and we
note Adams has not challenged the sufficiency of the ALJ’s analysis. Special Fund v. Francis, 708 S.W.2d
641 (Ky. 1986).
Adams was working the position of
foreman and supervising a crew. He was
prohibited from lifting anything himself, but had no difficulty performing his
supervisory work. He earned full
wages. He did not require the assistance
of a helper to perform his essential duties as a crew leader. For these reasons, we conclude there is
substantial evidence to support the ALJ’s determination Adams was not
permanently totally disabled until he ceased working.
For
the foregoing reasons, the award of income benefits is VACATED. This claim is REMANDED
to the ALJ for entry of an award of permanent total disability benefits subject
to the tier-down provisions set forth in the 1994 version of KRS
342.730(4). The April 25, 2016 Opinion,
Award and Order and the May 23, 2016 Order on Reconsideration rendered by Hon.
Chris Davis, Administrative Law Judge, are hereby AFFIRMED in all other respects.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON C PHILLIP WHEELER, JR
5055 NORTH MAYO TRAIL
PIKEVILLE, KY 41501
COUNSEL
FOR RESPONDENTS:
HON TERRI S WALTERS
PO BOX 1167
PIKEVILLE, KY 41502
KENTUCKY
ATTORNEY GENERAL:
HON ANDY BESHEAR
700 CAPITOL AVE, STE 118
FRANKFORT, KY 40601
ADMINISTRATIVE
LAW JUDGE:
HON CHRIS DAVIS
ADMINISTRATIVE LAW JUDGE
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601