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January 15, 2016 201285818

Commonwealth of Kentucky 

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