Workers’
Compensation Board
OPINION ENTERED: March 30, 2018
CLAIM NO. 201589349
JERRY MULLINS PETITIONER
VS.
APPEAL
FROM HON. TANYA PULLIN,
ADMINISTRATIVE LAW JUDGE
PUBLISHERS PRINTING COMPANY LLC
AND HON. TANYA PULLIN,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
VACATING
IN PART
AND REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER, Member. Jerry Mullins (“Mullins”) appeals
from the October 4, 2017 Opinion, Award, and Order of Hon. Tanya Pullin,
Administrative Law Judge (“ALJ”). The ALJ
awarded Mullins temporary total disability benefits and permanent partial
disability (“PPD”) benefits for a right arm injury.
The Form 101 alleges Mullins sustained work-related injuries
to his right arm on March 11, 2015, while in the employ of Publishers Printing
Company, LLC. The Form 101 states
Mullins’s date of birth is August 19, 1954. At the Benefit Review Conference,
Mullins preserved the issue of the constitutionality of KRS 342.730(4). The ALJ awarded Mullins PPD benefits for a
period of 425 weeks and further stated, “Benefits awarded herein are subject to
the limitations set forth in KRS 342.730(4).”
On appeal, Mullins
asserts his PPD benefits should not be subject
to the version of KRS 342.730(4) deemed unconstitutional in Parker v.
Webster County Coal, LLC (Dotiki Mine), 529 S.W.3d 759 (Ky. 2017) or the
tier-down provision contained in the 1994 version of KRS 342.730(4). We recently dealt with the issue on
appeal in Pickett v. Ford Motor Co., Claim No. 2015-01910, rendered
February 16, 2018, wherein we held as follows:
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.
In Parker, supra,
the Kentucky Supreme Court concluded the manner in which income benefits were
limited in the 1996 version of KRS 342.730(4) is unconstitutional. In so
ruling, the Supreme Court stated, in part, as follows:
[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.
On appeal,
Mullins relies upon Cruse v. Henderson County Board of Education,
2015-SC-000506-WC, rendered December 14, 2017, Designated Not To Be Published,
arguing as follows:
[T]he
reasoning set forth therein is compelling in that the Kentucky Supreme Court
ordered benefits to be paid on remand to an older worker, ‘for the appropriate
time-period without regard to KRS 342.730(4),’ signaling emphatically that
benefits should be awarded without the ‘tier down’ from the 1994 statute.
We disagree
with Mullins’s interpretation of Cruse. Cruse was seventy-one years old
at the time of her injury, and therefore her award did not implicate the 1994
version of KRS 342.730(4). Also,
noticeably absent in Cruse is any
language from the Supreme Court indicating the claimant is entitled to an
unaltered award of income benefits as a result of the holding in Parker.
We considered the Cruse opinion
in formulating our holding in Pickett, and we will adhere thereto until
informed otherwise.
In
accordance with our holding in Pickett, and because Mullins was not sixty-five years old at the
time of the May 11, 2015 injury, the claim must be remanded for entry of an award
of PPD benefits subject to the tier-down provision contained in KRS 342.730(4) as
enacted in 1994. As this is purely
question of law and not a question of fact, Mullins 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, this claim is VACATED IN PART and REMANDED to the ALJ for entry of an amended award of PPD benefits and to clarify the length of the award in accordance with the views expressed herein.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON STEPHANIE WOLFINBARGER
640 SOUTH FOURTH STREET
BISIG IMPACT CENTRE
SUITE 400
LOUISVILLE, KY 40202
COUNSEL
FOR RESPONDENT:
HON ANDIE BRENT CAMDEN
401 SOUTH FOURTH STREET
SUITE 2200
LOUISVILLE, KY 40202
ADMINISTRATIVE
LAW JUDGE:
HON TANYA PULLIN
ADMINISTRATIVE LAW JUDGE
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601