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