*/
Workers’
Compensation Board
OPINION
ENTERED: June 22, 2018
CLAIM NO. 201186079
WILLIAM DOWELL PETITIONER
VS. APPEAL FROM HON. JOHN
B. COLEMAN,
ADMINISTRATIVE LAW JUDGE
MATTHEWS CONTRACTING;
INSIGHT DIAGNOSTICS, LLC; AND
HON. JOHN B. COLEMAN,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
AND
MATTHEWS CONTRACTING PETITIONER
VS.
WILLIAM DOWELL AND
HON. JOHN B. COLEMAN,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. William
Bruce Dowell (“Dowell”) and Matthews Contracting both appeal from the Opinion,
Award, and Order rendered February 8, 2018 by Hon. John B. Coleman,
Administrative Law Judge (“ALJ”). The
ALJ awarded Dowell permanent total disability (“PTD”) and medical benefits for
a right knee injury he sustained on May 25, 2011. The parties also appeal from the March 6,
2018 order on the petitions for reconsideration.
On appeal, Dowell argues the ALJ erred in applying the tier down
provision of KRS 342.730(4) as it existed prior to the 1996 changes to the
Kentucky Workers’ Compensation Act to his award of permanent total disability
benefits. He argues the Kentucky Supreme
Court in Parker v. Webster County Coal, LLC (Dotiki Mine), 529 S.W.3d
759 (Ky. 2017), voided KRS 342.730(4), and that neither the 1996 changes to
that statutory provision, nor the preceding 1994 version are applicable. Dowell 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. Dowell argues KRS 446.160 does
not apply to KRS 342.730(4).
Dowell
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2015-SC-000506-WC (December 4, 2017) (Designated Not To Be Published), in which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).” Dowell argues Cruse
clearly establishes the 1994 version of KRS 342.730(4) should not be
applied. Dowell also 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.
Matthews Contracting alternatively argues the recent legislative
changes to KRS 342.730(4), which are not effective until July 14, 2018, are
dispositive. We find the ALJ did not err
in applying the tier down provision as it existed in the 1994 version of KRS
342.730(4), and likewise did not err in failing to apply statutory provisions
not yet in effect. Therefore we affirm.
Dowell filed a Form 101
alleging he injured his right shoulder on August 13, 2009 while pulling on a
stud at work. He alleged he reinjured
his right shoulder on May 25, 2011 from lifting overhead, and he injured his
right knee on the same date when he slipped and fell on a sidewalk at
work. On February 3, 2012, the ALJ
rendered an interlocutory Opinion and Award finding Dowell’s injuries
compensable, and awarding temporary total disability (“TTD”) and medical
benefits. Dowell underwent two shoulder
surgeries. He then subsequently sustained
another unrelated right shoulder injury.
In a decision on bifurcated issues, rendered March 5, 2015, the ALJ
reiterated his award of TTD benefits, but found a proposed third surgery for
the intervening injury was non-compensable.
Dowell testified on
multiple occasions, and both parties submitted numerous medical reports and
records. The evidence will not be
discussed further because it has no bearing on the issues raised on appeal.
In his decision
rendered February 8, 2018, the ALJ found Dowell is permanently and totally
disabled due to his right knee injury.
He dismissed Dowell’s claim for the right shoulder injury. Regarding the issues on appeal, the ALJ found
as follows:
6. The plaintiff argues that Parker v. Webster County Coal, LLC,
529 S.W. 3d 759 (Ky. 2017) requires the award to be paid for the plaintiff’s
lifetime without reduction in benefits as the current version of KRS 342.730
(4) limiting awards to social security retirement age was held to be
unconstitutional. However, since the statute is now considered null and void,
the pre-amendment version of KRS 342.730 (4) must control. See Mosley v.
Dept. of Highways 489 S.W. 2d 511 (Ky. 1972). As such, the award of
benefits shall be subject to the tier down provisions set forth in KRS 342.730
(4) as amended effective April 4, 1994.
Both parties filed
petitions for reconsideration. Dowell
argued the ALJ erred in dismissing his right shoulder claim, and in applying
the tier down provision set forth in KRS 342.730(4) as amended on April 4,
1994. Matthews Contracting argued the
ALJ erred in finding Dowell is permanently and totally disabled due to his
right knee injury. It also argued that,
“absent some legislative action that would be applicable to this claim, the
application of the tier down provisions of KRS 342.730(4) would be
appropriate.” In his order issued March
6, 2018, the ALJ held as follows:
This
matter is before the ALJ on petitions for reconsideration filed by both
parties. The plaintiff alleges the
ALJ committed patent error in dismissing the 2009 shoulder claim and in
applying the tier down provisions to the award of benefits. The defendant alleges the ALJ committed
patent error in finding the plaintiff to be permanently and totally disabled as
a result of his knee injury. Both
parties assert the ALJ clearly and precisely set forth his reasoning in making
the determinations with which they agree but not on the issues as noted above. The ALJ has once again reviewed his
decision as well as the arguments contained in the petitions filed by the
parties. I remain convinced and
stand by the analysis regarding the award of permanent total disability benefits
for the knee injury as well as the dismissal of the shoulder injury claim. I further note the WCB has recently ruled
regarding the applicability of the tier down provisions as utilized by the ALJ
in this claim.
Therefore,
finding no patent error, the petitions for reconsideration are DENIED.
As noted above, Dowell
argues the ALJ erred in applying the tier down provision contained in KRS
342.730(4) effective in April 1994.
Matthews Contracting argues the revised provisions of KRS 342.730(4),
which will not be effective until July 14, 2018, control and should be applied. We disagree and affirm.
Regarding the ALJ’s application of the tier down provision
contained in the pre-1996 version of KRS 342.730(4), we find no error. This issue was resolved by the holding of the
Kentucky Supreme Court in Parker v.
Webster County Coal, LLC (Dotiki Mine), supra. There, the Kentucky Supreme Court found KRS
342.730(4), as amended in 1996, is unconstitutional. That case is now final, and this Board must
apply Parker v. Webster County Coal, LLC (Dotiki Mine), supra, to
all decisions that have been timely appealed.
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.
As noted in the holding in Legislative
Research Com’n v. Fischer, 366 S.W.3d 905 (Ky. 2012), 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). The Kentucky
Supreme Court held the 1996 version of KRS 342.730(4), which was an amendment
to an existing provision, was unconstitutional.
The Court in Parker v. Webster County Coal, LLC (Dotiki Mine), supra,
did not void KRS 342.730(4) in its entirety.
Since the version of December 1996 version of KRS 342.730(4) was an
amendment to an existing statute, the 1994 version is in effect.
The ALJ
appropriately determined the application of the tier down provision contained
in KRS 342.730(4) as it existed in 1994 was appropriate. Because Dowell was not yet 65 years old at
the time of his injury, the tier down provision contained in the pre-1996
version of KRS 342.730(4) is applicable.
We also find Dowell’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.
We likewise determine that a statutory change that is not yet in
effect is inapplicable. The recent statutory
change to KRS 342.730(4) will not be effective until July 14, 2018. We decline to delay rendering a decision
based upon a statutory change, which will become effective in the future. Therefore, again, we affirm the ALJ’s
determination regarding the application of the pre-1996 version of KRS
342.730(4).
Accordingly, the February 8, 2018 decision and the March 6, 2018 order
on the petitions for reconsideration issued by Hon. John B. Coleman, Administrative Law Judge, are hereby AFFIRMED.
STIVERS,
MEMBER, CONCURS.
RECHTER, MEMBER,
DISSENTS AND FILES A SEPARATE OPINION.
RECHTER, Member. I would remand this claim
and, therefore, I dissent. Matthews Contracting has requested the claim
be remanded for entry of award in conformity with the newly amended version of
KRS 342.730(4). It accurately argues that the applicability of the
tier-down provisions of the 1994 version of KRS 342.730(4) is effectively a
moot issue due to the recent legislative amendments. The legislature has
determined the newly enacted statute has retroactive effect and, by its plain
and unambiguous language, the revisions will apply to any claim on appeal as of
the enactment date. Because the date of submission of this claim was
extended by Order dated May 2, 2018, an opinion on this appeal is not
statutorily required until August 11, 2018. Therefore, contrary to the
majority’s assertion, no delay in rendition would be required to afford
Matthews Contracting the relief which it seeks and to reach the result that
will uncontrovertibly be required in a mere 21 days. In the interest of
judicial economy, I would enter an opinion in this claim after July 14, 2018,
and would remand to the ALJ for entry of an award in conformity with KRS
342.730(4) as amended.
COUNSEL
FOR PETITIONER WILLIAM DOWELL:
HON WAYNE C DAUB
600 WEST MAIN ST, STE 300
LOUISVILLE, KY 40202
COUNSEL
FOR RESPONDENT MATTHEW CONTRACTING:
HON DOUGLAS A U’SELLIS
600 EAST MAIN ST, STE 100
LOUISVILLE, KY 40202
RESPONDENT:
INSIGHT DIAGNOSTICS, LLC
357 RIVERSIDE DR, STE 1004
FRANKLIN, TN 37064
ADMINISTRATIVE
LAW JUDGE:
HON JOHN B COLEMAN
657 CHAMBERLIN AVE
FRANKFORT, KY 40601
