Bill Golden v. Westark Community College and Public Employee Claims Division

Annotate this Case
Bill GOLDEN v. WESTARK COMMUNITY COLLEGE and
Public Employee Claims Division

97-846                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered April 30, 1998


1.   Workers' compensation -- review of appeals from Commission --
     factors on review. -- In reviewing appeals from the Workers'
     Compensation Commission, the supreme court views the evidence
     in the light most favorable to the Commission's decision and
     affirms when it is supported by substantial evidence;
     substantial evidence exists if reasonable minds could reach
     the same conclusion; the supreme court will not reverse the
     Commission's decision unless fair-minded persons considering
     the same facts could not have reached the same conclusion.  

2.   Workers' compensation -- suitable employment available to
     appellant -- Commission's decision finding twenty percent
     permanent partial disabliity supported by substantial
     evidence. --   Taking into consideration appellant's testimony
     about what he could do and could not do, his physical
     limitations, age, education, previous work experience, and the
     opinion of his treating physician, the Workers' Compensation
     Commission's conclusion that there was suitable employment
     available to him in both the private security and janitorial
     fields was supported by substantial evidence; the Commission's
     determination of twenty percent permanent partial disability
     was sustained.

3.   Statutes -- presumed constitutional -- burden of proving
     otherwise on party challenging enactment. - Statutes are
     presumed constitutional; the burden of proving otherwise is
     placed on the party challenging the legislative enactment; all
     doubts are resolved in favor of a statute's constitutionality.

4.   Constitutional law -- Equal Protection Clause -- age not
     suspect classification.-- The United States Supreme Court has
     stated repeatedly that age is not a suspect classification for
     purposes of the Equal Protection Clause.

5.   Constitutional law -- no fundamental right advanced for
     receipt of full workers' compensation benefits -- equal
     protection claim of age-based discrimination analyzed under
     rational-basis standard. -- Where appellant advanced no
     fundamental right to receive full workers' compensation
     benefits, the supreme court analyzed his equal protection
     claim of age-based discrimination in the payment of disability
     benefits under the rational-basis standard.  

6.   Constitutional law -- rational basis for classification -- how
     determined. -- In deciding whether a rational basis for a
     classification exists, the supreme court looks to whether the
     Act is reasonably related to any legitimate government object.
     
7.   Statutes -- Ark. Code Ann.  11-9-522 (f)(1996) worked
     disincentive on those age sixty-five or older to seek gainful
     employment to supplement social security benefits -- no
     acceptable rationale behind inconsistency in treatment. -- The
     supreme court could not accept the premise in Ark. Code Ann.
      11-9-522(f)(1996) that workers' compensation benefits
     received by one who is age sixty-five or older fall into the
     category of a "retirement supplement"; it was illogical for
     appellees to maintain that if appellant could no longer work
     due to a work-related injury, any benefits flowing from the
     workers' compensation program, which are meant to ease the
     loss in earnings, suddenly became forbidden; the net effect of
     the statute was to work a disincentive on those age sixty-five
     or older to seek gainful employment to supplement social
     security benefits; the supreme court failed to see the
     rationale behind this inconsistency in treatment.  

8.   Statutes -- workers' compensation and social security
     compensation -- different policy considerations -- no logical
     premise for legislative conclusion that two benefits are
     duplicative and should offset one another. -- The starting
     points for workers' compensation and social security are
     completely different; a work-related injury resulting in a
     disability with severe limitation on earning capacity calls
     into play drastically different policy considerations than
     social security, which is meant to ease the financial burden
     during later years, whether the recipient age sixty-five or
     older is working or not; the supreme court found no logical
     premise for the legislative conclusion that social security
     retirement benefits and workers' compensation benefits are
     duplicative and should offset one another.

9.   Constitutional law  -- no rational basis found for offsetting
     the two benefits irrespective of age -- statute
     unconstitutional. -- Though there was clearly disparate
     treatment by the General Assembly for those ages sixty-two
     through sixty-four and those age sixty-five and older, the
     supreme court also found that there was no rational basis for
     offsetting the two benefits irrespective of the age; workers'
     compensation benefits paid for loss of the ability to earn the
     same wages and a retirement benefit under social security are
     not duplicative in any respect; the economic objective behind
      11-9-522(f) to save money might be reasonable but the means
     for achieving that particular end were not and, hence, the
     statute failed to withstand constitutional scrutiny.

10.  Workers' compensation -- case affirmed in part and reversed in
     part -- Ark. Code Ann.  11-9-522 (f) violates Equal
     Protection Clause -- statute void on its face. -- The supreme
     court affirmed the Workers' Compensation Commission's finding
     that appellant was twenty percent disabled; it reversed the
     decision of the Commission and the Court of Appeals on the
     constitutional point and held that Ark. Code Ann.  11-9-522
     (f) violates the Equal Protection Clause of the United States
     Constitution because the justification for the age-based
     classification for groups receiving both workers' compensation
     benefits and social security retirement benefits is not
     rationally related to a legitimate government purpose; Ark.
     Code Ann.  11-9-522(f) is void on its face and of no effect.


     Appeal from Arkansas Workers' Compensation Commission;
affirmed in part and reversed in part.
     Sexton Law Firm, P.A. by:  William J. Kropp, III, for
appellant.
     Nathan C. Culp, for appellees. 

     Robert L. Brown, Justice.
     This case is before us on review from the Arkansas Court of
Appeals. The Court of Appeals concluded that substantial evidence
existed to support the Workersþ Compensation Commissionþs decision
of 20% permanent partial disability to appellant Bill Goldenþs body
as a whole.  Golden v. Westark Community College, 58 Ark. App. 209,
948 S.W.2d 108 (1997).  The Court of Appeals further affirmed the
Commissionþs determination that benefits for this disability would
be offset, dollar-for-dollar, pursuant to Ark. Code Ann.  11-9-
522(f) (Repl. 1996), by any social security retirement benefits
received by Golden and that  11-9-522(f) did not violate the Equal
Protection Clause of the Fourteenth Amendment.  Id.  We affirm the
decision of the Commission and the Court of Appeals with respect to
the 20% disability rating but reverse with respect to the
constitutionality of  11-9-522(f), which, we hold, runs counter to
the Equal Protection Clause.  We remand this matter to the
Commission for an order awarding benefits in accordance with this
opinion.
     On November 26, 1993, appellant Bill Golden was employed as a
security guard by appellee Westark Community College (Westark) when
he slipped on an icy ramp and suffered a compensable injury to his
neck and back.  Westark and its workers' compensation insurance
carrier, appellee Public Employee Claims Division (PECD), accepted
a 5% permanent physical impairment rating but contested the extent
of Golden's permanent partial disability rating.  Westark and PECD
also argued that any benefits received by Golden, who was 67 years
old at the time of his injury, should be offset by any retirement
benefits received as provided by  11-9-522(f).  Golden, in turn,
challenged the constitutionality of the offset provision.
     In a hearing before the Administrative Law Judge (ALJ), Golden
testified that he had neither completed high school nor achieved a
General Equivalency Diploma.  He testified that he had been in the
army from 1943 to 1946; that he had worked as a route salesman for
cigarette companies from 1948 to 1954; that he was a laborer and
manager for pest-control companies from 1954 to 1985; and that he
began his employment with Westark as a security guard in 1986. 
According to Golden, each of these jobs required physical activity
such as lifting objects, crawling under buildings, climbing stairs,
and prolonged periods of standing.  
     With respect to his employment at Westark, he explained that
his primary duties were to guard and protect the property, which
involved walking from building to building, and that the job had
the potential for the use of physical force.  Golden stated that
after his fall on the ice, he promptly sought treatment from
physicians and specialists and claimed that he still suffered from
consistent and sharp pains from his lower back up through his neck. 
His treating physician assigned a permanent physical impairment
rating of 5% and instructed him to avoid bending, stooping,
climbing stairs, lifting objects weighing in excess of fifteen
pounds, standing or walking for prolonged periods of time, and
engaging in activities requiring the use of physical force. 
Because of these limitations, Golden contended that Westark had
effectively terminated his employment on January 10, 1995, and that
his subsequent attempts to gain suitable employment were in vain. 
     The ALJ entered an order finding that Golden had suffered a 5%
permanent physical impairment rating and a 15% permanent partial
disability, or loss-of-income, rating.  As a result, the ALJ
awarded Golden benefits at the rate of $119 per week for twenty-two
and one-half weeks for his 5% permanent physical impairment and
concluded that the offset statute,  11-9-522(f), did not apply to
these benefits.  With respect to the 15% permanent partial
disability rating, the ALJ determined that any weekly compensation
benefits would be set off, dollar-for-dollar, pursuant to  11-9-
522(f) against the $575 per month received by Golden in social
security retirement benefits.  Because of the offset, the ALJ
concluded that Golden was not entitled to receive any benefits for
his permanent partial disability.
     The case was appealed to the full Workersþ Compensation
Commission.  On August 14, 1996, the Commission, with one
dissenter, determined that the term "disability," as used in the
Workers' Compensation Act, included both a physical-impairment
component and a loss-of-earning-capacity component.  The
Commission, accordingly, concluded that Golden had suffered a 20%
permanent partial disability and that the entire amount of Golden's
benefits should be set off, dollar-for-dollar, against the $575 per
month award of social security retirement benefits.  Hence, the
Commission concluded that Golden was entitled to no award.  The
Commission also determined that the offset provision of  11-9-
522(f) did not violate the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution.

            I. Substantial Evidence of 20% Disability
     We first consider the Commissionþs conclusion that Golden
suffered a permanent partial disability of 20% to the body as a
whole, with 5% representing the permanent anatomical impairment and
15% representing his loss in earning capacity.  Golden contends
that there was no substantial evidence to support the Commission's
determination that he only be awarded compensation based on a 20%
permanent partial disability.  Nonetheless, although he requests a
higher disability rating, he does not submit a figure to this court
which he deems appropriate but relies instead on this court to fix
an appropriate percentage.
     In reviewing appeals from the Commission, we view the evidence
in the light most favorable to the Commission's decision and affirm
when it is supported by substantial evidence.  Olsten Kimberly
Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997); Gansky
v. Hi-Tech Eng'g, 325 Ark. 163, 924 S.W.2d 790 (1996).  Substantial
evidence exists if reasonable minds could reach the same
conclusion.  Kuhn v. Majestic Hotel, 324 Ark. 21, 918 S.W.2d 158
(1996); Plante v. Tyson Foods, Inc., 319 Ark. 126, 890 S.W.2d 253
(1994).  This court will not reverse the Commissionþs decision
unless fair-minded persons considering the same facts could not
have reached the same conclusion.  Id.
     The Commission reached a 20% permanent partial disability
rating for Golden after agreeing with the same conclusion reached
by the ALJ.  In examining the evidence presented, we note where
Goldenþs treating physician, Dr. Peter Irwin, opined that Golden
had suffered a 5% physical impairment rating, and the ALJ and the
Commission added a 15% permanent partial disability rating for loss
of income.  Taking into consideration Golden's testimony about what
he could do and could not do, his physical limitations, age,
education, previous work experience and the opinion of his treating
physician, we cannot say that substantial evidence does not support
the Commissionþs conclusion that there was suitable employment
available to him in both the private security and janitorial
fields.  Nor do we conclude that this conclusion is unreasonable. 
Were we to raise the disability rating under these facts, we would
simply be substituting our finding for that of the Commission,
which we will not do.  Arkansas Power & Light Co. v. Hooks, 295
Ark. 296, 749 S.W.2d 291 (1988).
     Invoking our standard of review, we hold that substantial
evidence exists to sustain the Commissionþs determination of 20%
permanent partial disability.

                 II. Equal Protection Violation
     Golden next argues that the Commission erred in upholding the
constitutionality of Ark. Code Ann.  11-9-522(f) (Repl. 1996),
which provides:
          (1) Any permanent partial disability benefits
     payable to an injured worker age sixty-five (65) or older
     shall be reduced in an amount equal to, dollar-for-
     dollar, the amount of benefits the injured worker
     received or is eligible to receive from a publicly or
     privately funded retirement or pension plan but not
     reduced by the employee's contributions to a privately
     funded retirement or pension plan.
          (2) The purpose and intent of this subsection is to
     prohibit workers' compensation from becoming a retirement
     supplement.
Id.  A similar offset statute applied to permanent total
disability benefits (Ark. Code Ann.  11-9-519(g) (Repl. 1996)),
but this statute was repealed by Act 251 of 1997.
     We initially observe that statutes are presumed constitutional
and the burden of proving otherwise is placed on the party
challenging the legislative enactment.  ACW, Inc. v. Weiss, 329
Ark. 302, 947 S.W.2d 770 (1997); McCutchen v. Huckabee, 328 Ark.
202, 943 S.W.2d 225 (1997).  In the same vein, all doubts are
resolved in favor of a statute's constitutionality.  Foster v.
Jefferson County Bd. of Election Comm'rs, 328 Ark. 223, 944 S.W.2d 93 (1997); Reed v. Glover, 319 Ark. 16, 889 S.W.2d 729 (1994).  
     The question which confronts us on the front end is whether 
11-9-522(f) presents a classification of injured workers for equal-
protection purposes, that is, whether people in the same situation
are being treated differently.  We focus first on the category of
injured workers who are receiving both workersþ compensation
benefits and social security retirement benefits.  Under  11-9-
522(f), it is impermissible for injured workers, age 65 or older,
to receive permanent partial disability benefits and social
security retirement benefits without an offset for social security
benefits received.  However, as Golden makes clear, injured
workers below the age of 65 can receive both workersþ compensation
benefits and social security retirement benefits, and the offset
statute does not prevent this.  Indeed, social security retirement
benefits may be drawn early between the ages of 62 and 64.  42
U.S.C.  402(a) (1994).
     Golden claims that the General Assemblyþs use of age 65 as the
cutoff for full receipt of workersþ compensation benefits and
social security retirement benefits was an arbitrary and capricious
benchmark which was employed without any rational basis and which
does not further a legitimate governmental interest.  He asserts,
as a consequence, that the provision was enacted in violation of
his equal protection rights under both the United States and
Arkansas Constitutions.  Westark and PECD, however, point to the
fact that the General Assembly provides twin reasons for the
disparate treatment under  11-9-522(f).  The stated justification
for the classification under  11-9-522(f)(2) is to prevent
workersþ compensation benefits from becoming a þretirement
supplement.þ  There is a further purpose set out in Ark. Code Ann.
 11-9-101(b) (Repl. 1996), that the workersþ compensation system
þmust be returned to a state of economic viability.þ
     With regard to whether  11-9-522(f) sets out an impermissible
classification, the United States Supreme Court has stated
repeatedly that age is not a suspect classification for purposes of
the Equal Protection Clause.  See, e.g., Gregory v. Ashcroft, 501 U.S. 452 (1991); Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985); Vance v. Bradley, 440 U.S. 93 (1979); Massachusetts Bd.
of Retirement v. Murgia, 427 U.S. 307 (1976).  Moreover, Golden
advances no fundamental right to receive full workers' compensation
benefits.  Thus, we analyze his equal protection claim of age-based
discrimination in the payment of disability benefits  using the
rational-basis standard.  Id.
     In deciding whether a rational basis for a classification
exists, this court looks to whether the Act is reasonably related
to any legitimate government object.  Hamilton v. Hamilton, 317
Ark. 572, 879 S.W.2d 416 (1994); Arkansas Hosp. Ass'n v. Arkansas
State Bd. of Pharmacy, 297 Ark. 454, 763 S.W.2d 73 (1989).  See
also Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). 
Golden urges that there is no rational basis to support the
disparate treatment under  11-9-522(f).  He relies in large part
on a decision by the Colorado Supreme Court in Industrial Claim
Appeals Office v. Romero, 912 P.2d 62 (Colo. 1996), where that
court struck down a statute on equal protection grounds that
prevented employees from receiving permanent total disability
benefits together with social security retirement benefits once
they reached age 65 but allowed receipt of both benefits when
permanent partial disability was involved.
     In Romero, the Colorado Supreme Court summarily rejected the
primary legislative justification for the classification set out in
the contested statute.  That justification was that the statute was
enacted to prevent a double recovery in the form of both social
security retirement benefits and workers' compensation benefits. 
In rejecting this notion, the Colorado Supreme Court took issue
with the conclusion that workersþ compensation benefits and
retirement benefits represent duplicate benefits:
     Social security retirement benefits are provided to
     persons over age sixty-five regardless of injury, as long
     as the recipient has reached the statutory age after
     having been employed and having contributed to the Social
     Security Trust Fund.  These benefits are not disability
     benefits, but are old-age entitlements serving the same
     function as pension payments.  In contrast, workers'
     compensation benefits are provided to compensate
     employees who suffer work-related injuries for loss of
     income resulting from such injuries.  Workers'
     compensation benefits are paid from insurance provided by
     employers in exchange for the employee's forbearance from
     suing the employer in tort.  Thus, withholding workers'
     compensation benefits from persons age sixty-five and
     older because they presumably receive retirement benefits
     is not rationally related to the goal of preventing
     duplicate benefits because workers' compensation benefits
     do not serve the same purpose as retirement benefits.
Id. at 67-68 (citations omitted).  We agree with the reasoning of
the Colorado Supreme Court.
     A second case which fits the Romero mold is State v.
Richardson, 482 S.E.2d 162 (W. Va. 1996).  In Richardson, the West
Virginia Supreme Court of Appeals acknowledged the legislature's
interest in preserving the fiscal viability of that state's
workers' compensation system.  Yet, it issued a writ of prohibition
to prevent the enforcement of a West Virginia statute that reduced
permanent total disability benefits under workers' compensation by
one-half of the sum of social security retirement benefits received
by the injured workers.  The Workersþ Compensation Commission had
contended that the offset statute was permissible because the
legislature had dual goals comparable to the goals in the instant
case of (1) preserving the fiscal integrity of the workersþ
compensation program, and (2) elimination of duplicate benefits. 
     The West Virginia Supreme Court, however, deemed the
duplication argument to be without a rational footing because the
purposes behind the two programs were so different -- additional
compensation during retirement years for a lifeþs work in the case
of social security versus compensation for a workplace injury in
the case of workersþ compensation.  The court went on to emphasize
that workersþ compensation benefits are a substitute for access to
the courts for redress for torts and are not a welfare benefit for
wage loss.  Quoting from Sasso v. Ram Property Management, 431 So. 2d 204 (Fla. App. 1983), affþd, 452 So. 2d 932 (1984), the court
in Richardson further noted that because a worker age 65 or older
can supplement his or her social security retirement benefits by
income from gainful employment, social security benefits have
evolved into a benefit more associated with advanced years than a
replacement for wage loss.  The West Virginia court then concluded
that the lack of a commonality of purpose between the two programs
sapped the contested statute of rationality.  The court held that
the statute violated the Equal Protection Clause of the West
Virginia Constitution.
     Westark and PECD cite this court to several states which have
upheld the constitutionality of offset provisions comparable to 
11-9-522(f) on the basis that the provisions were rationally
related to the legitimate government purpose of foreclosing a
duplication of benefits.  See, e.g., Injured Workers of Kansas v.
Franklin, 942 P.2d 591 (Kan. 1997); Berry v. H.R. Beal & Sons, 649 A.2d 1101 (Me. 1994); Case of Tobin, 675 N.E.2d 781 (Mass. 1997);
McClanathan v. Smith, 606 P.2d 507 (Mont. 1980); Vogel v. Wells
Fargo Guard Servs., 937 S.W.2d 856 (Tenn. 1996); Harris v. State,
843 P.2d 1056 (Wash. 1993). See also 9 Arthur Larson and Lex K.
Larson, Larson's Workers' Compensation Law  97.35(b) (1997).
     The justification for this result, as explained in Professor
Larsonþs treatise, has been that both workersþ compensation
benefits and social security retirement benefits are intended to
substitute for a wage loss and that recipients should not recover
more than what was his or her actual wage at time of injury.  Id.
 97.10, at 18-9.  According to the theory, the injured worker is
experiencing only one wage loss and should receive only one wage-
loss benefit.  Id.  In this connection, Westark and PECD underscore
that the workersþ compensation system in this state must be
þreturned to a state of economic viability."  Ark. Code Ann.  11-
9-101(b) (Repl. 1996).  They further contend that one means of
accomplishing that goal is to "prohibit workers' compensation from
becoming a retirement supplement."  Ark. Code Ann.  11-9-522(f)(2)
(Repl. 1996).
     Though we recognize that the states are divided on this issue,
we are persuaded by the reasoning in the Romero and Richardson
decisions.  Furthermore, we cannot accept the premise posited by
our General Assembly in the offset statute that workersþ
compensation benefits received by one who is age 65 or older fall
into the category of a þretirement supplement.þ  Ark. Code Ann. 
11-9-522 (f).  All parties agree that Bill Golden could
legitimately accept social security retirement benefits after
attaining age 65 and, at the same time, supplement his retirement
benefits with income from work at his Westark job without any
offset.  Yet, illogically, Westark and PECD maintain that if Golden
could no longer work due to a work-related injury, any benefits
flowing from the workersþ compensation program, which are meant to
ease the loss in earnings, suddenly become verboten.  Not only is
the reasoning illogical, but the net effect of the statute is to
work a disincentive on those age 65 or older to seek gainful
employment to supplement social security benefits.  We fail to see
the rationale behind this inconsistency in treatment.  The effect,
of course, is to weed these older workers out of the work force.
     Plus, the starting points for workersþ compensation and social
security are so completely different.  As the Romero decision makes
abundantly clear, a work-related injury resulting in a disability
such as a leg amputation with severe limitation on earning capacity
calls into play drastically different policy considerations than
social security which is meant to ease the financial burden during
later years, whether the recipient age 65 or older is working or
not.  Suffice it to say that we find no logical premise for the
legislative conclusion that social security retirement benefits and
workersþ compensation benefits are duplicative and should offset
one another.
     In sum, it is not the mere age-based classification that is
troublesome to this court, though there is clearly disparate
treatment by the General Assembly for those age 62 through 64 and
those age 65 and older, but the fact that we perceive no rational
basis for offsetting these two benefits irrespective of the age. 
To be sure, economic viability of the workersþ compensation program
and eradication of duplicate benefits are worthy and lofty goals,
but we fail to see how workersþ compensation benefits paid for loss
of the ability to earn the same wages and a retirement benefit
under social security are duplicative in any respect.  The economic
objective behind  11-9-522(f) to save money may be reasonable but
the means for achieving that particular end are not and, hence, the
statute fails to withstand constitutional scrutiny.
     We affirm the Commissionþs finding that Golden was 20%
disabled.  We reverse the decision of the Commission and the Court
of Appeals on the constitutional point and hold that  11-9-522 (f)
violates the Equal Protection Clause of the United States
Constitution because the justification for the age-based
classification for groups receiving both workersþ compensation
benefits and social security retirement benefits is not rationally
related to a legitimate government purpose.  Accordingly,  11-9-
522(f) is void on its face and of no effect.
     Affirmed in part.  Reversed in part and remanded.