WILLIAM GEORGE WHITT v. WOLF CREEK COLLIERIES; SPECIAL FUND; HONORABLE LLOYD R. EDENS, Administrative Law Judge; and WORKER'S COMPENSATION BOARD
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RENDERED: October 23, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
No.
1998-CA-000660-WC
WILLIAM GEORGE WHITT
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-91-004560
WOLF CREEK COLLIERIES;
SPECIAL FUND;
HONORABLE LLOYD R. EDENS,
Administrative Law Judge; and
WORKER’S COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
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BEFORE:
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GUDGEL, CHIEF JUDGE; GARDNER and MILLER, Judges.
MILLER, JUDGE.
William George Whitt (Whitt) asks us to review an
opinion of the Workers’ Compensation Board (board) rendered
February 20, 1998.
Ky. Rev. Stat. (KRS) 342.290.
We affirm.
While employed by co-appellee Wolf Creek Collieries
(Wolf Creek), Whitt was diagnosed with category I coal workers’
pneumoconiosis.
He filed for retraining incentive benefits (RIB)
under the Workers’ Compensation Act.
KRS 342.000 et seq.
The
claim was settled for a lump sum of $15,320.00 by an agreement
approved by the administrative law judge (ALJ) on December 20,
1993.
Thereafter, Whitt continued to work as a coal miner for
Wolf Creek.
On December 9, 1996, claiming a progression of the
disease, Whitt filed a motion to reopen his previous claim
pursuant to KRS 342.125(2)(a).
On July 30, 1997, the ALJ dis-
missed the claim based upon Whitt’s failure to demonstrate
pulmonary impairment.
This appeal followed.
The sole issue on appeal involves the constitutionality
of KRS 342.125(2)(a).
Whitt argues that said statutory provision
violates the constitutional guarantee of equal protection by
requiring him to present evidence of respiratory impairment when
same is not required of workers who allege category II pneumoconiosis in an initial claim.
KRS 342.732(1)(d).
A statutory classification such as that alleged in this
case does not violate the concept of equal protection if it has a
reasonable basis or rational justification.
Dandridge v. Wil-
liams, 397 U.S. 471, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970).
A
statutory classification concerning a matter of social welfare is
not unconstitutionally arbitrary if it is rationally related to a
legitimate governmental objective.
Richardson v. Belcher, 404
U.S. 78, 92 S. Ct. 254, 30 L. Ed. 2d 231 (1971); and Kentucky
Association of Chiropractors, Inc. v. Jefferson County Medical
Society, Ky., 549 S.W.2d 817 (1977).
It is only if the classifi-
cation rests upon grounds wholly unrelated to a reasonable state
objective that the rights to due process and equal protection are
violated.
Id.
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KRS 342.732(1)(a) authorizes the award of RIB upon a
finding that an applicant suffers from category 1 coal workers’
pneumoconiosis.
It requires no evidence of respiratory impair-
ment or occupational disability.
The purpose of this section is
to encourage category 1 pneumoconiosis workers, who have not
sustained an occupational disability, to leave the mining industry before they sustain additional coal dust exposure and become
occupationally disabled.
If a worker who has been awarded RIB continues to work
in the coal mining industry until he becomes occupationally
disabled by contracting category II pneumoconiosis, he must
proceed under KRS 342.125(2)(a) for additional benefits.
KRS
342.125(2)(a) requires evidence of both a progression of the
disease and a development of respiratory impairment before
additional benefits are authorized.
A coal miner suffering category II pneumoconiosis, who
has never been awarded RIB, must file a workers’ compensation
benefits claim under KRS 342.732(1)(d), which does not require
evidence of respiratory impairment.
It is our opinion that requiring additional evidence
from a claimant who was awarded RIB, but who continued to work in
the coal mining industry until he was occupationally disabled,
furthers the purpose of KRS 342.732(1)(a).
Moreover, it is ra-
tionally related to the legitimate state objective set forth in
Kentucky Harlan Coal Company v. Holmes, Ky., 872 S.W.2d 446
(1994):
[To afford] protection to all of Kentucky
industry, (and hence, the employment/jobs of
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Kentucky workers) from an economic drain
caused by Special Fund assessments for compensation claims directly related to the coal
industry, and particularly those due to high
incidence of coal workers’ pneumoconiosis.
Id. at 455.
In sum, we believe that KRS 342.125(2)(a) is not
arbitrary.
Requiring
additional evidence of a recipient of RIB
has a rational justification.
Hence, it does not violate the
constitutional guarantee of equal protection.
We deem Whitt’s remaining argument to be without merit.
For the foregoing reasons, the decision of the Workers’
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE/WOLF CREEK:
Jeffery Hinkle
Inez, KY
Eileen M. O’Brien
Lexington, KY
BRIEF FOR APPELLEE/FUND:
David W. Barr
Louisville, KY
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