ZACHARY BRYANT V. STAR DRYWALL OF LOUISVILLE; RON CHRISTOPHER, Director COWDEN, JR., Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: July 31, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 97-CA-2026-WC
ZACHARY BRYANT
V.
APPELLANT
PETITION FOR REVIEW OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-94-32718
STAR DRYWALL OF LOUISVILLE;
RON CHRISTOPHER, Director
of SPECIAL FUND; W. BRUCE
COWDEN, JR., Administrative
Law Judge; and WORKERS'
COMPENSATION BOARD
APPELLEES
OPINION AFFIRMING
* * * * * * * *
BEFORE:
GUDGEL, Chief Judge; GARDNER and KNOPF, Judges.
GUDGEL, CHIEF JUDGE:
This matter is before us on a petition for
review of an opinion of the Workers' Compensation Board (board)
affirming a decision of an Administrative Law Judge (ALJ) which
determined that appellant, Zachary Bryant, is 100% occupationally
disabled and directed that the Special Fund's liability for the
award commenced on the date a unilateral settlement between
appellant and his employer, appellee Star Drywall of Louisville
was approved.
On appeal, appellant contends that the board erred
by determining that the 1994 amendment of KRS 342.120 effected a
change in the commencement date of the Special Fund's liability
in cases where the claimant and the employer enter a unilateral
settlement agreement, that the board erred by applying the 1996
amended version of KRS 342.120(3) to his claim, and that the 1996
amendments of the Workers' Compensation Act are unconstitutional.
We disagree with all of appellant's contentions.
Hence, we
affirm.
Appellant was employed as a drywall finisher for
appellee Star Drywall of Louisville from September 1969 until his
doctor took him off work in April 1994 due to the condition of
his neck and back.
He subsequently filed a workers' compensation
claim respecting the back condition against his employer and the
Special Fund which was practiced as a wear and tear type of
injury claim involving repetitive work-related trauma.
Eventually, appellant and his employer entered into a unilateral
settlement whereby the employer agreed to pay him total
disability benefits with appellant reserving a right to proceed
against the Special Fund.
The ALJ thereafter determined that
appellant was 100% occupationally disabled and directed that the
Special Fund's liability for payment of its portion of the award
should commence as of August 22, 1996, the date upon which the
settlement agreement between appellant and his employer was
approved.
Appellant appealed to the board arguing that the
Special Fund's liability should have commenced as of the date he
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ceased working in April 1994.
the ALJ's decision.
The board disagreed and affirmed
This appeal followed.
First, appellant contends that the board erred by
failing to find that the Special Fund's liability for total
disability commences on the date of the worker's injury.
We
disagree.
Appellant argues that on the date he quit work in April
1994, KRS 342.120(8)(b) stated that if a claimant settles with
his employer and the Special Fund's liability on the claim is
subsequently adjudicated, "the special fund portion of the
benefit rate shall be paid over the maximum period provided for
by statute for that disability, unless otherwise agreed by all
parties."
Since he is totally occupationally disabled, appellant
contends that the "maximum period provided for by statute" for
which the Special Fund is liable must be fixed as of the date of
his injury.
However, KRS 342.120(8)(b) was amended in 1994 prior to
the date appellant quit work.
The supreme court in Duty v.
Double Eagle Co., Ky., 939 S.W.2d 874 (1997), held that the
legislative "intent of KRS 342.120(8)(b) was to overrule Chumley
[Newberg v. Chumley, Ky., 824 S.W.2d 413 (1992)] to the extent
that Chumley had required the Special Fund to pay the entire
award for its proportionate number of weeks."
at 877.
Duty, 939 S.W.2d
Rather, the Duty court held that under the amended
statute the Special Fund's liability for payment of compensation
commences on the date the settlement between the claimant and the
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employer is approved.
Thus, under the amended version of the
statute, the liability of the Special Fund for the "maximum
period provided for by statute" for total occupational disability
commences on the date of approval of the settlement between the
claimant and the employer and continues for the claimant's
lifetime.
Next, appellant urges that the 1996 amendment to KRS
342.120(3) should not be retroactively applied to his claim as
the statute effects a substantive, rather than a remedial change.
We disagree.
KRS 342.120 was amended effective December 11, 1996,
prior to the ALJ's decision on December 23, 1996, and states in
part as follows:
Where the employer has settled its
liability for income benefits and
thereafter a determination has been made
of the special fund's liability, the
special fund portion of the benefit rate
shall be paid over the maximum period
provided for by statute for that
disability, with the period of payment
beginning on the date settlement was
approved by an administrative law judge
or arbitrator. This provision is
remedial and shall apply to all pending
and future claims.
The ALJ concluded that this provision controls the issue as to
the commencement of the Special Fund's liability for payments.
Indeed, the applicable statute expressly states that the 1996
amendment to KRS 342.120(3) applies to all pending and future
claims as of its effective date of December 12, 1996.
Moreover,
the 1996 amendment of KRS 342.120(3) did not effect a change in
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policy, but rather, clarified the intent of the 1994 amendment to
KRS 342.120(8)(b).
Duty, supra.
Further, it is clear that the
payment provisions of KRS 342.120 are remedial as they operate to
effectuate a remedy and have been so interpreted.
Miracle v.
Riggs, Ky. App., 918 S.W.2d 745 (1996).
Appellant also contends that Duty does not apply to his
claim because it concerned an award of partial disability.
However, neither the 1994 version of KRS 342.120(8)(b) nor KRS
342.120(3) as amended in 1996 distinguish between partial and
total disability awards.
Likewise, the court's reasoning in Duty
compels a conclusion that it applies to both partial and total
disability awards.
Indeed, the court looked to the legislature's
express purpose of enacting legislation to address the Special
Fund's unfunded liability and the fact that the 1994 legislation
left intact the sequential payment scheme set forth in KRS
342.120(6) and (7) which pertained to both partial and total
disability awards.
Moreover, in Spurlin v. Woods, Ky., 954
S.W.2d 309 (1997), a total occupational disability award was made
subsequent to the claimant's settlement with his employer and
although the Special Fund maintained that is liability for
payments commenced upon the cessation of the settlement's
periodic payments, the court held that KRS 342.120(8)(b) dictated
that the Special Fund commence payments on the date the
settlement was approved.
Thus, in our opinion, the holding in
Duty, the 1994 amendment to KRS 342.120(8)(b), and the 1996
version of KRS 342.120(3) mandate that the liability of the
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Special Fund should commence on the date a settlement is approved
between the employer and the claimant both as to both partial and
total disability awards.
Further, appellant's assertion that he had a vested
right to the benefits he would have received between the dates he
ceased working and date the settlement with his employer was
approved is without merit.
The 1994 version of KRS 342.120, in
effect on the date of appellant's injury, provided that the
Special Fund's liability for payment of benefits commenced on the
date of approval of the settlement with his employer.
Further,
appellant's claim was not adjudicated before the 1996 amendment
to KRS 342.120(3) became effective.
Thus, appellant clearly did
not have a vested right to received benefits commencing on the
date he ceased working.
See Miracle v. Riggs, 918 S.W.2d at 747.
Finally, appellant contends that the December 1996
amendments to the Workers' Compensation Act are unconstitutional.
We disagree.
Appellant argues that the 1996 amendments
unconstitutionally deprive him of approximately $25,000.
However, since the supreme court has held that the 1996 amendment
of KRS 342.120 did not effect a substantive change in the law,
but rather, merely clarified the legislative's intent in amending
the statute in 1994, appellant's argument in this vein is
unavailing.
The Special Fund's liability for the payment of its
share of the total benefits herein commenced on the date the
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settlement with the employer was approved under both the 1994 and
the 1996 versions of KRS 342.120.
The board's opinion is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR SPECIAL FUND:
Edward A. Mayer
Terry E. Fox
Louisville, KY
Benjamin C. Johnson
Louisville, KY
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