CYNTHIA FRAZIER, WIDOW OF DANIEL FRAZIER, DECEASED v. MORSEY, INC.; HON. IRENE STEEN, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
JANUARY 19, 2007; 2:00 P.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2006-CA-000895-WC
CYNTHIA FRAZIER, WIDOW OF
DANIEL FRAZIER, DECEASED
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-04-84884
v.
MORSEY, INC.; HON. IRENE STEEN,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
JOHNSON1 AND TAYLOR, JUDGES; BUCKINGHAM,2 SENIOR JUDGE.
JOHNSON, JUDGE:
Cynthia Frazier, the widow of Daniel Frazier,
has petitioned for review of an opinion of the Workers’
Compensation Board entered on March 31, 2006, which reversed and
remanded the Administrative Law Judge’s opinion and award of
1
Judge Rick A. Johnson completed this opinion prior to the expiration of his
term of office on December 31, 2006. Release of the opinion was delayed by
administrative handling.
2
Senior Judge David C. Buckingham sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and Kentucky Revised Statutes (KRS) 21.580.
widow’s benefits entered on November 28, 2005, which terminated
Cynthia’s widow’s workers’ compensation benefits on January 15,
2009, the date Daniel would have turned age 66.
Instead, the
Board determined that the proper termination date for Cynthia’s
widow’s benefits should be February 15, 2010, the date she would
turn age 60.
Having concluded that the Board has overlooked or
misconstrued controlling statutes or precedent3 and that the
proper termination date for Cynthia’s widow’s benefits is March
1, 2012, the month after Cynthia would turn age 62, we reverse
and remand.
The facts of this case are not in dispute.
Daniel,
who was born on January 15, 1943, was a pipe fitter and had
worked on construction jobs at different times for Morsey, Inc.
On June 7, 2004, during the course of his employment with
Morsey, Daniel was injured when a steel pipe was dropped on his
left foot.4
While initially Daniel received one week of
outpatient treatment, on June 13, 2004, he was diagnosed with a
diffuse hemorrhage of his foot and admitted to the hospital.
Serious medical complications arose, including multi-organ
failure and cardiac arrest, and the work-related injury caused
Daniel’s death on June 17, 2004, at age 61.
3
At the time of his
Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
4
Daniel had a pre-existing medical history of diabetes mellitus, elevated
liver enzymes, renal insufficiency, idiopathic thrombocytopenic purpura,
hypertension, and he had had surgery previously on his left leg.
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injury, Daniel had been married to Cynthia for many years.
Cynthia, whose date of birth is February 15, 1950, worked as a
clerical employee for a local union.
The couple had one child,
Brooke Frazier, who was Daniel’s dependant on the date of his
injury.5
On December 13, 2004, Cynthia and Brooke filed an
application for resolution of injury claim with the Department
of Workers’ Claims.
Physicians, who treated Daniel during his
hospitalization, stated that the work-related injury was a
substantial contributing factor in causing his death.
On September 9, 2005, the ALJ entered an interlocutory
order requiring the payment of death benefits.
The ALJ noted in
the interlocutory order that the parties had not agreed upon the
potential duration of Cynthia’s entitlement to widow’s benefits
and that “[t]his concerns the proper interpretation of KRS
342.730(4) which, so far as the parties and the [ALJ] are aware,
has not yet been authoritatively interpreted by the Kentucky
courts.”
All benefits awarded pursuant to KRS 342.750, except
the lump-sum death benefit provided in KRS 342.750(1)(c), are
subject to the limitations contained in KRS 342.730(4), which
states as follows:
5
Brooke was born on March 28, 1983, and because she was under 22 years of age
and a full-time student, she was entitled to dependent child’s benefits from
the date of Daniel’s injury until her marriage on February 12, 2005.
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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 like
manner all income benefits payable pursuant
to this chapter to spouses and dependents
shall terminate when such spouses and
dependents qualify for benefits under the
United States Social Security Act by reason
of the fact that the worker upon whose
earnings entitlement is based would have
qualified for normal old-age Social Security
retirement benefits [emphasis added].
The first sentence of KRS 342.730(4) establishes that
income benefits payable to the employee shall terminate as of
the date the employee qualifies for normal old-age Social
Security retirement benefits.
The confusion lies within the
second sentence which uses the phrase, “[i]n like manner” which
indicates, to some extent, that it refers back to the first
sentence.
The wording of the second sentence of KRS 342.730(4)
has resulted in four different interpretations by the parties,
the ALJ, and the Board.
The ALJ accepted Morsey’s original position and found
that the benefits would terminate on January 15, 2009, the date
Daniel would have turned age 66.
In its opinion and award of
widow’s benefits entered on November 28, 2005, the ALJ stated,
in relevant part, as follows:
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Although this Statute may appear to be
confusing when first read, it is the opinion
of this ALJ that there is no ambiguity in
this Statute and that the sentence “the
worker upon whose entitlement is based” are
the operating (sic) words of the Statute.
To this ALJ this sentence dictates in this
case that the decedent/employer is the
worker upon whose earnings entitlement is
based and that he would have otherwise
qualified for normal [old-]age Social
Security at the age of 66 and that,
therefore, his dependents’ income benefits
are directly linked to when the deceased
employee would have qualified for Social
Security Retirement Benefits.
After having read the parties’ briefs,
it is the decision of this ALJ that
[Cynthia’s] widow’s benefits shall cease
when her husband, the decedent herein,
Daniel [ ], would otherwise have qualified
for normal old-age Social Security
Retirement Benefits and that the widow,
Cynthia [ ], shall be entitled to receive
the sum of $294.22 per week until January
15, 2009[,] or earlier in the event of her
remarriage.6
Cynthia appealed to the Board, which entered its
opinion reversing the ALJ’s award on March 31, 2006.7
The Board
agreed with the ALJ that there was no ambiguity in the statute;
however, the Board rejected the ALJ’s interpretation that
Cynthia’s benefits would terminate on January 15, 2009, the date
6
Throughout the remainder of the Opinion, we will discuss the termination
date without regard to remarriage as provided in KRS 342.750(1)(a)&(c).
7
The ALJ’s decision on a question of law is due no deference by the Board,
nor the appellate courts. See Jecker v. Plumbers’ Local 107, 2 S.W.3d. 107
(Ky.App. 1999); and Ford Motor Co. v. Forman, 142 S.W.3d 141 (Ky. 2004).
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that Daniel would have turned age 66 and qualified for normal
old-age Social Security retirement benefits.
The Board stated
that the ALJ had erroneously concluded that the operative words
in KRS 342.730(4) are “the worker upon whose earnings
entitlement is based[.]”
However, the Board also rejected
Cynthia’s proposed benefits termination date of March 1, 2012,
the first month after Cynthia would turn age 62.
Rather, the
Board held that Cynthia’s benefits would terminate on February
15, 2010, the day she would turn age 60, and would qualify for
widow’s benefits, pursuant to 42 U.S.C. § 402(e).
This petition
for review followed.
In her petition for review, Cynthia identifies the
question of law as “what age would Cynthia [ ] qualify for
Social Security benefits by reason of the fact that the worker
upon whose earning[s] entitlement is based [Daniel] would have
qualified for normal old-age Social Security retirement
benefits?”
Pursuant to 42 U.S.C. § 402(b), if Daniel had lived
to qualify for normal old-age Social Security retirement
benefits, Cynthia would have become eligible for Social Security
benefits (by reason of Daniel’s having qualified for normal oldage Social Security benefits) on March 1, 2012, the month after
she would have turned age 62.
Cynthia contends “that the Board has mistakenly adopted
the standard for Social Security widow’s benefits instead of
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Social Security spouse benefits.”
Cynthia notes that widow’s
benefits are triggered by the worker’s death, while spouse’s
benefits are based upon retirement age, and that KRS 342.730(4)
uses the triggering event—“worker . . . would have qualified for
normal old-age Social Security retirement benefits.”
Cynthia
emphasizes the distinction between the two types of benefits,
and argues that unlike spouse benefits, “when a wage earner
dies, his widow can receive Social Security widow benefits or
widower’s benefits the month after the month they turn 60 years
of age.
It does not matter how old the worker was when he or
she died.”
Cynthia asserts that the benefits termination date
established by KRS 342.730(4) is consistent with 42 USC §
402(b), and thus, her workers’ compensation benefits should
terminate on March 1, 2012, when she would have qualified to
receive Social Security benefits by reason of Daniel’s
entitlement to normal old-age Social Security retirement
benefits.
Cynthia argues that the Legislature’s use of the
language “would have qualified” in KRS 342.730(4) recognized the
contingency that the worker would have to be deceased for the
spouse or dependent to receive the benefit, and that the
Legislature chose to use the date the spouse or dependent would
have qualified for benefits based upon the worker’s earnings
entitlement to normal old-age Social Security retirement
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benefits and not the date of a spouse’s entitlement to widow’s
benefits.
She states, “[t]he Board [erroneously] adopted Social
Security widow’s benefits, 42 USCA sec. 402(e), which are
triggered by the worker’s death, not his hypothetically reaching
retirement age.”
Contrary to Cynthia’s argument, Morsey states that the
Board did not confuse the type of benefits at issue, but rather
that the Board “recognizes there should not be an overlap in
benefits paid to the widow, nor should there be a gap in the
benefits paid to the widow.”
While Morsey originally argued in
favor of the benefit termination date chosen by the ALJ, Morsey
now contends that the Board chose the correct benefits
termination date because the Board’s interpretation accounts for
the entire language of KRS Chapter 342.
Our review of a question of law is de novo.8
The
purpose of review by this Court is to correct the Board only
where we perceive that the Board “has overlooked or misconstrued
controlling statutes or precedent, or committed an error in
assessing the evidence so flagrant as to cause gross injustice.”9
It is well established that interpretation and construction of a
8
Uninsured Employers’ Fund v. Garland, 805 S.W.2d 116 (Ky. 1991).
9
Huff Contracting v. Sark, 12 S.W.3d 704, 707 (Ky.App. 2000) (quoting Western
Baptist Hospital, 827 S.W.2d at 687-88).
-8-
statute is a matter of law for the Court.10
“[A]ny analysis of a
workers’ compensation issue is necessarily an exercise in
statutory interpretation[,]”11 and a liberal construction should
be afforded the Kentucky Workers’ Compensation Act on questions
of law.12
As a general rule, we must interpret statutes
according to their plain meaning and in accordance with the
intent of the Legislature.13
“To determine legislative intent, a
court must refer to ‘the words used in enacting the statute
rather than surmising what may have been intended but was not
expressed.’ . . .
Similarly, a court ‘may not interpret a
statute at variance with its stated language.’”14
In order to
give full effect to the legislative intent embodied in a
statute, construing a statute in such a way as to render a word
or phrase mere surplussage is disfavored.15
Even when construing
10
Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 925 (Ky. 1997).
11
Williams v. Eastern Coal Corp., 952 S.W.2d 696, 698 (Ky. 1997).
12
See AK Steel Corp. v. Childers, 167 S.W.3d 672 (Ky.App. 2005).
13
Ratliff, 955 S.W.2d at 925.
14
McDowell v. Jackson Energy RECC, 84 S.W.3d at 77 (quoting Hale v. Combs, 30
S.W.3d 146, 151 (Ky. 2000)). See also Commonwealth v. Allen, 980 S.W.2d 278,
280 (Ky. 1998).
15
See Kurtsinger v. Board of Trustees of Kentucky Retirement Systems, 90
S.W.3d 454, 457-58 (Ky. 2002); and State Street Bank & Trust Co. of Boston,
Massachusetts v. Heck’s, Inc., 963 S.W.2d 626, 630 (Ky. 1998).
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unambiguous statutory language, it is proper to look to previous
constructions of analogous statutes or rules for guidance.16
We conclude that the statute in question is
unambiguous and that the Board misconstrued the statute and
misapplied the law.
Cynthia is correct that the Legislature
triggered the benefits termination date to the date the spouse
or dependent would have qualified for Social Security benefits
based upon the earnings entitlement of the worker who would
have qualified for normal old-age Social Security retirement
benefits, if not for the worker’s work-related death.
By
selecting this date, the Legislature recognized the contingency
of the worker having died as the result of a work-related injury
and the fact that he would not qualify for normal old-age Social
Security retirement benefits because of his death.
Any other
interpretation of KRS 342.730 (4) results in the language “would
have qualified” being meaningless.
Based upon the foregoing reasons, we reverse the
opinion of the Workers’ Compensation Board and remand this
matter for an award consistent with this Opinion.
ALL CONCUR.
16
Prudential Building & Loan Association v. City of Louisville, 464 S.W.2d
625, 626 (Ky. 1971).
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BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE MORSEY, INC.:
Craig Housman
Paducah, Kentucky
R. Christion Hutson
Paducah, Kentucky
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