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January 15, 2016 201285818

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  March 23, 2018

 

 

CLAIM NO. 201193197

 

 

LEE ANDREW WRIGHT                              PETITIONER

 

 

 

VS.                         

APPEAL FROM HON. DOUGLAS W. GOTT,

              CHIEF ADMINISTRATIVE LAW JUDGE

 

 

 

UTILIPATH

AND HON. DOUGLAS W. GOTT,

CHIEF ADMINISTRATIVE LAW JUDGE                RESPONDENTS

 

 

OPINION

VACATING IN PART

AND REMANDING

 

                       * * * * * *

 

 

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

 

 

RECHTER, Member.  Lee Andrew Wright (“Wright”) appeals from the October 2, 2017 Opinion, Award and Order and the October 16, 2017 Order rendered by Hon. Douglas W. Gott, Chief Administrative Law Judge (“CALJ”) awarding permanent total disability (“PTD”) benefits.  On appeal, Wright cites Parker v. Webster County Coal, LLC (Dotiki Mine), 529 S.W.3d 759 (Ky. 2017) to assert he is entitled to lifetime PTD benefits with no reduction.  For the reasons set forth herein, we vacate in part and remand.

          The CALJ found Wright permanently totally disabled as a result of injuries sustained on August 28, 2010, and that finding is not at issue on appeal.  The October 2, 2017 Opinion provided Wright’s PTD benefits were payable “for a time period consistent with KRS 342.730(4).” 

          Wright filed a petition for reconsideration requesting the CALJ modify the opinion to conform to the holding in Parker, and reflect that he will receive the income benefits for so long as he remains permanently totally disabled.  The CALJ overruled the petition for reconsideration, noting the decision in Parker had not become final.  

          On appeal, Wright requests the claim be remanded for revision of his award in light of the Kentucky Supreme Court’s final ruling in Parker.  He directs our attention to the tier-down provision contained in the 1994 version of KRS 342.730(4), and argues it should not be applied on remand.  In essence, Wright asserts the entirety of KRS 342.730(4) was stricken by the Court’s ruling in Parker, and his PTD benefits are payable “during disability” as set forth in KRS 342.730(1)(d).  Wright notes “during disability” means for so long as the impairment exists, which in his case is for his lifetime.

          The question of the constitutionality of the age limitation in KRS 342.730(4) effective in 1996 was answered by the Kentucky Supreme Court in Parker.  The Court held the age limitation in KRS 342.730(4) violates the right to equal protection.  Parker is now final and mandates Wright is entitled to a lifetime award of PTD benefits.  However, because Wright had not reached the age of 65 prior to the injury, his award is subject to the limitations in KRS 342.730(4) as that section provided prior to its amendment in 1996. 

          When a statute is ruled unconstitutional, the unconstitutionality dates from the time of its enactment.  It is void ab initio, as inoperative as if it had never been passed and never existed.  See Legislative Research Com’n v. Fischer, 366 S.W.3d 905 (Ky. 2012).  We therefore must consider KRS 342.730(4) as it existed prior to the 1996 amendment:

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.

 

          Because Wright was not 65 years old at the time of the injury, KRS 342.730(4) mandates reduction of benefits by the statutory percentages.  Accordingly, the October 2, 2017 Opinion, Award and Order and the October 16, 2017 Order rendered by Hon. Douglas W. Gott, Chief Administrative Law Judge, are hereby VACATED IN PART and this matter is REMANDED for entry of an award applying the tier-down provision contained in the version of KRS 342.730(4) as it existed prior to the 1996 amendment.

          ALL CONCUR.

 


 

 

COUNSEL FOR PETITIONER:

 

HON JAMES KERR

5004 POPLAR LEVEL RD

LOUISVILLE, KY 40219

 

COUNSEL FOR RESPONDENT:

 

HON PETER J GLAUBER

400 W MARKET ST #2300

LOUISVILLE, KY 40202

 

CHIEF ADMINISTRATIVE LAW JUDGE:

 

HON DOUGLAS W. GOTT

ADMINISTRATIVE LAW JUDGE

PREVENTION PARK

657 CHAMBERLIN AVENUE

FRANKFORT, KY 40601