MARY JO EDWARDS V. LOUISVILLE LADDER; APPELLEES HONORABLE ROBERT E. SPURLIN, Director of the Special Fund; HONORABLE RONALD W. MAY, Administrative Law Judge; and KENTUCKY WORKERS' COMPENSATION BOARD
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RENDERED:
October 10, 1997; 10:00 a.m.
TO BE PUBLISHED
96-CA-2597-WC
MARY JO EDWARDS
APPELLANT
PETITION FOR REVIEW UNDER CR 76.25
OF A DECISION OF THE WORKERS' COMPENSATION BOARD
WC-95-16901
v.
LOUISVILLE LADDER;
HONORABLE ROBERT E. SPURLIN,
Director of the Special Fund;
HONORABLE RONALD W. MAY,
Administrative Law Judge; and
KENTUCKY WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
* * * * * * * * * * * * * * * * * * * *
BEFORE:
BUCKINGHAM, HUDDLESTON, and KNOPF, Judges.
BUCKINGHAM, JUDGE.
This case involves an appeal by Mary Jo
Edwards (Edwards) from a decision of the Workers' Compensation
Board (Board) affirming an opinion and award by an Administrative
Law Judge (ALJ).
The issues involve the apportionment findings
of the ALJ, the extent to which Edwards is entitled to benefits,
and the constitutionality of the 1994 amendments to Kentucky
Revised Statute (KRS) 342.730.1
1
For the reasons set forth
As Edwards' claim was filed prior to the 1996 amendments
(continued...)
hereinafter, we affirm the decision of the Board and hold the
statutes to be constitutional.
Edwards, a 66-year-old woman, worked for Louisville
Ladder Company (Louisville Ladder) for approximately 30 years as
an assembler and machine operator, which required her to do a
great deal of lifting and stooping.
In February 1993, Edwards
fell and suffered a hip injury (which was not work-related)
necessitating surgery.
She did not return to work until six
months later, at which time she was placed on a "light duty" job.
In September 1994, Edwards experienced pain in her lower back
when she stooped to pick up some parts at work.
As a result of
this injury, Edwards filed a workers' compensation claim against
Louisville Ladder.
The ALJ ruled that Edwards was 100 percent disabled,
but that 40 percent of her disability was the result of the
prior, noncompensable hip injury.
The ALJ further ruled that an
additional 40 percent of Edwards' disability was due to "non-work
spontaneous fractures," meaning that only 20 percent of her
disability was the result of the accident she sustained while
working for Louisville Ladder.
Pursuant to the parties'
stipulation, the ALJ apportioned one-half of the 20 percent
disability to Louisville Ladder and one-half to the Special Fund,
and further ordered that Edwards' benefits be paid for 425 weeks.
KRS 342.730(1)(c).
Pursuant to KRS 342.730(4), the ALJ also
(...continued)
to the Workers' Compensation Act, this case involves the statutes
as they existed at that time and not as they now exist.
2
directed that Edwards' benefits be reduced by 10 percent
beginning at age 65 and by 10 percent each year thereafter until
and including age 70.
The Board affirmed the ALJ, whereupon
Edwards filed this appeal.
The first argument raised by Edwards is that the
findings of the ALJ that she suffered from a preexisting active
hip condition and nonwork-related compression fractures are
erroneous and an abuse of discretion.
She states in her brief
that "there was absolutely no medical or lay testimony for ALJ to
make such active findings much less support ALJ May's
apportionment of 80% of the Petitioner's total disability for the
non-work related hip and spontaneous compression fractures."
We
have reviewed the evidence and determined that Edwards' argument
has no merit.
The medical evidence consisted of reports of Drs.
William Ramsey, Wayne Kotcamp, and Robert Jacob.
Dr. Ramsey, who
apparently treated Edwards' prior hip fracture, states in his
notes that Edwards was complaining of back pain in August of
1994, over a month before she sustained the back injury in
question.
This directly contradicts Edwards' argument that she
had no previous injuries to her lower back.
Further, when Dr.
Ramsey saw Edwards approximately one week after her back injury,
she failed to mention the injury to him.
Dr. Ramsey detected
evidence of "an old compression fracture L3" and "some narrowing
of the disk space at L2-3 and also at L5-S1."
3
TR Vol. I, p. 71.
He also found that Edwards was suffering from "pronounced
osteoporosis."
Id.
Dr. Jacob examined Edwards in March 1995 and found that
she had compression fractures at L2, L3, L4, and L5, which he
stated were "a direct result of the patient's severe longstanding osteoporosis and the single most common manifestation of
advanced lumbar disease."
Dr. Jacob determined that only the
fracture at L2 may have occurred at Edwards' work, and he
assigned her a five percent whole person impairment due to that
fracture.
In addition, he stated that "at least 90 percent [of
the impairment] would have been due to the patient's osteoporosis
for were it not for the osteoporosis, it [the fracture] would
have never occurred."
In his examination of Edwards, Dr. Kotcamp found that
she suffered from deformities at L3 and L5 and also a compression
fracture at L2.
He asserted that the problems at L3 and L5
predated Edwards' alleged work-related injury.
According to Dr.
Kotcamp, Edwards suffered from osteopenia, which was brought into
disabling reality by Edwards' work injury.
He assigned a
permanent partial impairment of 30 percent to the body as a whole
as a result of Edwards' compression injuries.
The question before the Board on appeal was "whether
such evidence as there was before the ALJ should be viewed as
uncontradicted and compelling a different result."
Western
Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685, 687 (1992).
Board determined that the ALJ's findings were supported by
4
The
substantial evidence.
Upon an appeal to this Court, our function
is "to correct the Board only where the the [sic] Court perceives
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."
Kelly, supra, at 687-88.
Edwards had previously injured her hip in a nonworkrelated accident and frequently used a cane to walk following the
injury.
Furthermore, Dr. Ramsey and Dr. Kotcamp indicated that
Edwards had suffered preexisting fractures to her vertebrae
before the back injury in question occurred.
The evidence was
sufficient to support the findings of the ALJ, and no flagrant
error or gross injustice exists in this case.
Kelly, supra.
Edwards' next argument is that since the ALJ determined
that she was 100 percent occupationally disabled, she is entitled
to receive benefits for the duration of her injuries pursuant to
KRS 342.730(1)(a) rather than benefits for 425 weeks pursuant to
KRS 342.730(1)(c).
KRS 342.730 provided in relevant part that:
(1) Except as provided in KRS 342.732,
income benefits for disability shall be paid
to the employee as follows:
(a)
For total disability due to a
work-related injury or occupational
disease, sixty-six and two-thirds
percent (66-2/3%) of the employee's
average weekly wage but not more
than one hundred percent (100%) of
the state average weekly wage . . .
during that disability. Nonworkrelated disability shall not be
considered in determining whether
the employee is totally disabled
for purposes of this subsection.
. . . .
5
(c)
For permanent, partial
disability, . . . sixty-six and
two-thirds percent (66-2/3%) of the
employee's average weekly wage but
not more than seventy-five percent
(75%) of the state average weekly
wage . . . for a maximum period
from the date the disability
arises, of four hundred twenty-five
(425) weeks . . . . The period of
disability under this paragraph for
nonwork-related disabilities shall
not extend the maximum period of
disability under this paragraph.
The statutory language in question is the pronouncement in
KRS 342.730(1)(a) that "[n]onwork-related disability shall not be
considered in determining whether the employee is totally
disabled for purposes of this subsection" and the statement in
KRS 342.730(1)(c) that "[t]he period of disability under this
paragraph for nonwork-related disabilities shall not extend the
maximum period of disability under this paragraph."
Both the
Board and Edwards agree that the aforementioned statutory
language is intended to legislatively overrule Teledyne-Wirz v.
Willhite, Ky. App., 710 S.W.2d 858 (1986).
That case held that
"even though a claimant had a noncompensable occupational
disability which existed prior to the [compensable] injury, this
prior disability is not excluded when determining whether there
was 'total disability' for the purposes of KRS 342.730(1)(a)
. . . ."
Benefits were ordered to be paid to the claimant in the
Teledyne case under KRS 342.730(1)(a) for so long as she was
disabled.
Id. at 860.
6
The Kentucky Supreme Court recently addressed the
revised version of KRS 342.730(1)(a) in Spurlin v. Adkins, Ky.,
940 S.W.2d 900 (1997).
In Adkins, the claimant was determined to
be totally occupationally disabled from a compensable injury
(resulting in 80 percent disability) and a noncompensable injury
(resulting in 20 percent disability) and was awarded benefits
under the prior version of KRS 342.730(1)(a) for the duration of
his disability.
Id.
In the course of declaring that the 1994
amendments will not be applied retroactively, the Court in Adkins
stated that "the 1994 amendments to KRS 342.730(1) would prohibit
the consideration of prior, active nonwork-related disability
when determining the extent of a worker's occupational disability
for the purpose of awarding income benefits."
Id. at 903.
This
statement by the Court indicates that the statute as amended is
to be interpreted in accordance with its plain meaning--any
noncompensable disability is not to be considered in determining
whether a person is totally disabled and entitled to increased
benefits under KRS 342.730(1)(a).
This approach is in accordance
with the accepted rule that "[i]n the absence of a specific
statutory definition, statutory terms are to be 'construed
according to the common and approved usage of language.'
KRS 446.080(4)."
Claude N. Fannin Wholesale Co. v. Thacker, Ky.
App., 661 S.W.2d 477, 480 (1983).
According to the ALJ and the Board, Edwards would not
be totally occupationally disabled in the absence of her nonworkrelated disabilities.
Therefore, she does not meet the criteria
7
for total disability payments under KRS 342.730(1)(a).
Further,
KRS 342.730(1)(c) states clearly that nonwork-related
disabilities "shall not extend the maximum period of disability
under this paragraph."
Therefore, Edwards' argument that she is
entitled to receive benefits for the duration of her injury is
without merit.2
Edwards next contends that the language in
KRS 342.730(1)(a) that "[n]onwork-related disability shall not be
considered in determining whether the employee is totally
disabled for purposes of this subsection" deprives her rights to
a remedy and to compensation for her injuries which are
guaranteed through Sections 14 and 54 of the Kentucky
Constitution.
Section 14 of the Kentucky Constitution states
that "[a]ll courts shall be open, and every person for an injury
done him in his lands, goods, person or reputation, shall have
remedy by due course of law, and right and justice administered
without sale, denial or delay."
Section 54 of the Kentucky
Constitution states that "[t]he General Assembly shall have no
power to limit the amount to be recovered for injuries resulting
in death, or for injuries to person or property."
Analogizing her claim to a tort claim, Edwards attempts
to demonstrate that she has been denied full compensation for her
injuries due solely to her preexisting condition.
2
In other
Edwards places considerable emphasis on the case of Young
v. Fulkerson, Ky., 463 S.W.2d 118 (1971), although she fails to
identify how the case helps her argument. We fail to see its
relevance.
8
words, she argues that but for the 1994 amendment to
KRS 342.370(1)(a), she would be entitled to benefits for the
duration of her injuries rather than compensation for only 425
weeks.
Edwards' tort theories are inapplicable in a workers'
compensation case, as it has long since been held that the advent
of Kentucky's workers' compensation system "practically abolished
the common law relating to the subject of tortious liability as
between the employer and the employee . . . ."
Morrison v.
Carbide and Carbon Chemicals Corp., 278 Ky. 746, 750, 129 S.W.2d
547 (1939).
The Court in Morrison essentially stated that the
workers' compensation system is the exclusive remedy for any
injuries falling within its purview, except for intentional
injuries caused by the employer.
Id. at 750-51.
See also
KRS 342.690(1); Davis v. Solomon, Ky., 276 S.W.2d 674, 676
(1955); Zurich American Ins. Co. v. Haile, Ky., 882 S.W.2d 681,
684 (1994); Zurich Ins. Co. v. Mitchell, Ky., 712 S.W.2d 340, 342
(1986).
Edwards makes no contention that she opted out of the
Workers' Compensation Act's coverage.
She has therefore waived
any tort claim she may have had against Louisville Ladder,
rendering moot her tort arguments and leaving only the question
of whether KRS 342.730(1)(a) is constitutional.
KRS 342.730(1)(a) is constitutional and does not
violate either Section 14 or Section 54 of the Kentucky
Constitution.
In fact, it is perfectly logical for the General
Assembly to determine that only persons totally disabled from
9
compensable injuries should receive benefits for the duration of
those injuries.
The very definition of "injury" for workers'
compensation purposes speaks of "any work-related harmful change
in the human organism, arising out of and in the course of
employment . . . ."
(Emphasis added.)
KRS 342.0011(1).
A similar argument was made that the workers'
compensation system was in violation of Section 54 of the
Kentucky Constitution in Greene v. Caldwell, 170 Ky. 571, 580,
186 S.W. 648, 652 (1916).
In holding the workers' compensation
system to be constitutional, the Greene court stated:
It is quite correct to say that this section
[54] operates as a restraint on the General
Assembly and prohibits it from attempting to
limit the amount of recovery in the cases
described in the section. But in this
legislation the General Assembly did not
arbitrarily or at all undertake to limit the
amount of recovery. It merely proposed a
statute to a certain class of people for
their individual acceptance or rejection. It
did not assume to deprive these classes or
individuals without their consent of any
constitutional rights to which they were
entitled. The General Assembly merely
afforded by this legislation a means by and
through which individuals composing classes
might legally consent to limit the amount to
which the individual would be entitled if
injured or killed in the course of his
employment.
Greene, at 580-81.
Similarly, it has been more recently held
that
[o]ur Kentucky Constitution, §§ 14, 54, and
241, preserve to all persons, including the
employee, the common law remedy in tort
against a party at fault, except where the
employee has made a voluntary election to
waive such constitutional rights, express or
implied. The foundation for declaring
10
workers' compensation constitutional in
Kentucky is built on recognition of this
principle. Wells v. Jefferson Co., Ky., 255
S.W.2d 462 (1953). In Wells, we recognized a
"presumed acceptance" as a waiver of the
worker's constitutional rights, but we did
not abolish the acceptance and waiver
requirements.
M.J. Daly Co. v. Varney, Ky., 695 S.W.2d 400, 403 (1985),
overruled on other grounds by U.S. Fidelity & Guaranty Co. v.
Technical Minerals, Inc., Ky., 934 S.W.2d 266, 269 (1996).
Therefore, by electing to proceed under the workers' compensation
system, Edwards has waived any rights that she could have
asserted under §§ 14 and 54 of the Kentucky Constitution.
KRS 342.730(1)(a) now prevents extended benefit
payments for injuries which would not rise to the level of total
disability, thereby insuring that only work-related injuries
which result in total disability are compensated for the
increased duration and monetary amount set forth in the statute.
Edwards will be fully compensated for her work-related injuries,
but she will not receive excess compensation for her nonworkrelated injuries.
The General Assembly's approach to these
situations in the 1994 amendments complies with both logic and
the law.
Edwards' final argument is that "the 'tier-down'
provisions of KRS 342.730(4) as enacted in 1994 [are]
unconstitutional and violate her rights."
Although she did not
cite any authority to support her position, Edwards claims that
the statute violates the due process and equal protection
provisions of the Kentucky Constitution and constitutes
11
discrimination based on age.
KRS 342.730(4) provided in its
entirety as follows:
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.
A court dealing with a challenge to the
constitutionality of an act of the General Assembly must
"necessarily begin with the strong presumption in favor of
constitutionality and should so hold if possible."
Brooks v.
Island Creek Coal Co., Ky. App., 678 S.W.2d 791, 792 (1984).
It
has further been held that the constitutionality of a statute
dealing with economic matters "will be upheld if its
classification is not arbitrary, or if it is founded upon any
substantial distinction suggesting the necessity or the propriety
of such legislation."
Kentucky Harlan Coal Co. v. Holmes, Ky.,
872 S.W.2d 446, 455 (1994).
In addition, "[a] statutory
classification in the area of social welfare is not
unconstitutionally arbitrary if it has a legitimate objective and
is rationally related to that objective."
Ky. App., 704 S.W.2d 653, 655 (1985).
Estridge v. Stovall,
Estridge also states that
due process or equal protection are violated "'only if the
resultant classifications or deprivations of liberty rest on
grounds wholly irrelevant to a reasonable state objective.'"
Id., citing Kentucky Assoc. of Chiropractors, Inc. v. Jefferson
12
County Medical Society, Ky., 549 S.W.2d 817 (1977).
What these
standards mean is that appellate review of this issue will
involve the use of the rational basis test.3
Although the issue of whether KRS 342.730(4) amounts to
age discrimination in violation of the due process and equal
protection clauses of the Kentucky Constitution is one of first
impression in Kentucky, a similar issue was raised in Brooks,
supra.
In Brooks, the argument concerned the constitutionality
of a provision in KRS 342.730(1)(b) (since repealed) which
discontinued workers' compensation benefits "after the employee
becomes eligible for normal old age benefits under the Federal
Old Age, Survivors and Disability Insurance Act . . . ."
792.
Id. at
The Court in Brooks determined the provision in question to
be a constitutionally valid attempt to prevent the duplication of
wage losses.
Id. at 792-93.
If a provision which completely
cuts off workers' compensation benefits can be deemed
constitutional, this statute, which merely reduces benefits, is
also likely constitutional.4
3
Classifications based upon age are generally reviewed
using a rational basis test and are not subjected to heightened
scrutiny. Cf. 16A Am. Jur.2d Constitutional Law § 750; Case of
Tobin, 675 N.E.2d 781, 784 (Mass. 1997); Vogel v. Wells Fargo
Guard Services, 937 S.W.2d 856, 858 (Tenn. 1996); Sasso v. Ram
Property Management, 431 So.2d 204, 221 (Fla. App. 1 Dist. 1983),
aff'd 452 So.2d 932 (1984), appeal dismissed 469 U.S. 1030
(1984).
4
KRS 342.730(4) was amended effective December 12, 1996,
and now states in relevant part that income benefits "shall
terminate as of the date upon which the employee qualifies for
normal old-age Social Security retirement benefits under the
(continued...)
13
A statute very similar to KRS 342.730(4) was declared
constitutional in Cruz v. Chevrolet Grey Iron, Div. of Gen.
Motors Corp., 220 N.W.2d 178 (Ct. App. Mich. 1974), aff'd 247
N.W.2d 764 (Sup. Ct. Mich. 1976).
The statute in the Cruz case
provided that an employee entitled to or receiving compensation
benefits who had reached the age of 65 would have his benefits
reduced 5 percent per year from ages 65-75.
Rejecting a worker's argument that the statute was
unconstitutional, the Court of Appeals of Michigan determined
that "[t]he use of age in the statute to classify is reasonable"
and that when workers' compensation benefits were viewed as
compensation for wage loss "it is not unreasonable to assume that
the Legislature found that, upon attaining the age of 65, a
worker's level of compensation often decreased as a result of
retirement, reduction in work, or other reasons."
N.W.2d 180.
Cruz, 220
In affirming the Court of Appeals, the Michigan
Supreme Court stated that "[w]e would sustain the
constitutionality of the scale-down of benefits on the ground
that it is rationally related to the scale-down in earning
capacity due to normal retirement."
Cruz, 247 N.W.2d 771.
We agree with the sound reasoning of the Cruz case that
a worker's level of compensation often decreases upon attaining
the age of 65 as a result of retirement, reduction in work, or
(...continued)
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."
14
other reasons.
The General Assembly had a rational basis for
enacting KRS 342.730(4), and "[i]t is not the place of this Court
to question the wisdom or efficiency of the legislature acting
within the constitutional limits of its power."
at 655.
Estridge, supra,
We hold KRS 342.730(4) to be constitutional.
The decision of the Board is therefore affirmed.
ALL CONCUR.
15
BRIEF FOR APPELLANT:
BRIEF FOR LOUISVILLE LADDER:
Ched Jennings
Louisville, KY
Ellen Hesen
Louisville, KY
BRIEF FOR SPECIAL FUND:
Joel Zakem
Labor Cabinet
Louisville, KY
16
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