JOHN FRANKLIN GREY v. KAY ELLEN GREY
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RENDERED:
February 5, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000252-WC
JAMES L. WILLIAMS
APPELLANT
PETITION FOR REVIEW OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-95-26721
V.
BOULWARE CENTER, INC.; SPECIAL
FUND; J. KEVIN KING, Arbitrator;
DONNA H. TERRY, Chief
Administrative Law Judge; and
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION AFFIRMING
* * * * * * * *
BEFORE:
GUDGEL, Chief Judge; COMBS and DYCHE,1 Judges.
GUDGEL, CHIEF JUDGE:
This matter is before us on a petition for
review of an opinion of the Workers' Compensation Board (board),
which determined that James L. Williams was precluded from filing
a motion to reopen his claim by operation of KRS 342.125(3) and
(8), as amended December 12, 1996.
We affirm.
Williams previously filed a workers' compensation claim
for a low back injury which he sustained on October 21, 1993, in
1
Judge Abramson was present at the oral argument herein but
a majority decision was not reached prior to her departure from
the court. Judge Dyche was assigned as the third member of the
panel after her departure.
the course of his employment with Boulware Center, Inc.
In an
opinion and award rendered May 8, 1996, J. Landon Overfield,
Administrative Law Judge, found that Williams's low back injury
was in the nature of a sprain or strain.
Williams was awarded
benefits based upon a 5% permanent occupational disability.
On April 20, 1997, Williams filed a motion to reopen
based upon a change of condition pursuant to KRS 342.125.
On
July 21, 1997, Kevin King, Arbitrator, denied the motion to
reopen on the basis that KRS 342.125(3) and (8) prevented a claim
from being reopened, except to contest medical expenses, within
two years of the date of the previous opinion or award.
The
arbitrator's order was appealed to Donna H. Terry, Chief
Administrative Law Judge (CALJ).
In her order affirming the
arbitrator's decision to deny Williams's motion to reopen, the
CALJ agreed that KRS 342.125, as amended December 12, 1996,
prohibited Williams from reopening his claim until two years
following May 8, 1996, the date the previous award was made.
her order, the CALJ noted as follows:
[I]t must be concluded that under the plain
language of the statute, as amended,
Williams' motion to reopen cannot be
maintained. The Kentucky General Assembly
clearly stated its intent to proscribe all
reopenings for a potential increase in income
benefits for two years after an award or
order, and applied this prohibition to all
awards, even those entered prior to December
12, 1996, the effective date of the
amendment. Thus, upon de novo review
pursuant to 803 KAR 25:010, the Arbitrator's
order must be AFFIRMED and Williams' motion
to reopen must be overruled. (Emphasis
added).
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In
Williams appealed the CALJ's decision to the board.
He
argued that KRS 342.125(3) and (8) cannot be applied to prevent
him from reopening his claim within two years from the date of
his original award of benefits, because to do so would deprive
him of several federal and state constitutional protections.
Citing Blue Diamond Coal Co. v. Cornett, Ky., 189 S.W.2d 963
(1945), the board declined to render a decision with respect to
the constitutionality of the amended statute.
In his appeal to this court, Williams reiterates his
argument that the statute, as amended, is unconstitutional as it
deprives him of substantive and procedural due process, equal
protection of the law, and reasonable access to the courts.
We
disagree.
KRS 342.125, as amended effective December 12, 1996,
provides in pertinent part as follows:
(3)
Except for reopening solely for
determination of the compensability of
medical expenses, fraud, or conforming
the award as set forth in KRS
342.730(1)(c)2., or for reducing a
permanent total disability award when an
employee returns to work, no claim shall
be reopened more than four (4) years
following the date of the original award
or order granting or denying benefits,
or within two (2) years of such award or
order, and no party may file a motion to
reopen within two (2) years of any
previous motion to reopen by the same
party.
. . . .
(8)
The time limitation prescribed in this
section shall apply to all claims
irrespective of when they were incurred,
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or when the award was entered, or the
settlement approved. However, claims
decided prior to December 12, 1996, may
be reopened within four (4) years of the
award or order or within four (4) years
of December 12, 1996, whichever is
later, provided that the exceptions to
reopening established in subsections (1)
and (3) of this section shall apply to
these claims as well.
Williams contends that the language of the statute, as
amended, serves to deprive him of the right to a remedy and to
compensation for his injury, as guaranteed through various
provisions of the Kentucky Constitution.
We disagree.
The right to receive workers' compensation benefits is
a creature of statute.
KRS 342.690.2
The entirety of the basic
underlying statutory framework of Kentucky's workers'
compensation system was declared constitutional in Greene v.
Caldwell, 170 Ky. 571, 580-81, 186 S.W. 648, 652 (1916), wherein
the court explained as follows:
It is quite correct to say that [section 54
of the Kentucky Constitution] 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
2
There is no common law right to be compensated for an
injury in the absence of negligence.
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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.
More recently, it was 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
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 U.S. Fidelity & Guaranty Co. v.
Technical Minerals, Inc., Ky., 934 S.W.2d 266 (1996).
Williams has made no argument that he opted out of the
coverage provided by the Workers' Compensation Act.
Instead, he
elected to proceed under our workers' compensation system.
As a
result, we must conclude that Williams has waived any rights that
he could have asserted under §§14 and 54 of the Kentucky
Constitution.
290 (1997).
Edwards v. Louisville Ladder, Ky. App., 957 S.W.2d
Under the same analysis, we must also conclude that
Williams has waived any rights that he might have asserted under
§§2 and 59 of Kentucky's constitution.
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Williams also argues that the statute, as amended in
1996, is unconstitutional as it deprives him of federal and state
due process and equal protection guarantees.
Again, we disagree.
As we noted in Edwards, supra at 295, "[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.'" (Citation omitted).
In addition, "[a] statutory
classification in the area of social welfare is not
unconstitutionally arbitrary if it has a legitimate objective and
it is rationally related to that objective."
Stovall, Ky. App., 704 S.W.2d 653, 655 (1985).
Estridge v.
Moreover, due
process or equal protection is violated "'only if the resultant
classifications or deprivations of liberty rest on grounds wholly
irrelevant to a reasonable state objective.'"
Id. (citing
Kentucky Association of Chiropractors, Inc. v. Jefferson County
Medical Society, Ky., 549 S.W.2d 817 (1977)).
See also Wynn v.
Ibold, Inc., Ky., 969 S.W.2d 695 (1998).
In this case, the effect of the challenged amendment is
to define the time period within which motions to reopen may be
brought.
The designation of such a time period constitutes an
attempt by the General Assembly to ease the administrative and
practical difficulties associated with reopening and altering
workers' compensation awards.
With this amendment, Kentucky
joins the majority of jurisdictions having enacted time limits
for reopening proceedings based upon a change of condition.
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3
Arthur Larson, Workers' Compensation Desk Book §81.20 (1998).
Even those states in the minority which still permit a reopening
of the proceedings on the basis of a changed condition at any
time make such proceedings subject to various qualifications and
restrictions.
Delaware, for example, provides that modifications
to an award cannot be made more often than once every six months.
Id.
Through the enactment of the subject time limitations,
the Commonwealth's legislators sought to answer obvious
administrative concerns related to reopening proceedings.
As a
result, we cannot say that the restrictions imposed by the
statute's amendment are "wholly irrelevant to a reasonable state
objective."
Estridge, supra at 655.
Thus, we conclude that the
1996 amendment to KRS 342.125, as applied to Williams's claim,
does not deprive him of any enumerated vested or constitutional
rights.
The board’s opinion is affirmed.
DYCHE, J., CONCURS.
COMBS, J., DISSENTS AND FILES A SEPARATE OPINION.
COMBS, JUDGE, DISSENTING:
I respectfully but
strenuously dissent from the reasoning and the result reached by
the majority opinion.
A very narrow issue is before us, an issue
that does not require this court to address or analyze the
propriety of the 1996 legislative re-vamping of workers'
compensation statutory scheme as a whole.
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Rather, this appeal
focuses upon one minute portion of the new legislation, which is,
in my opinion, unconstitutional as applied to the appellant in
this case and which will have an enormously crushing impact on
his life.
The constitutionality of the time limitation as applied
prospectively is not before us -- although its potentially
punitive impact on litigants is apparent and is alluded to in
appellant's brief.
The precise and narrow issue presented in
this appeal is whether the application of the time limitation on
reopenings, applied retroactively to injuries occurring before
the 1996 amendments, amounts to an unconstitutional deprivation
of due process.
I believe that it does.
Williams argues correctly that he cannot hope to obtain
adequate compensation benefits for the two-year period of his
injury during which he is precluded from seeking a reopening.
Even if he were to prevail upon reopening, an award flowing from
that new hearing would relate back only to the actual date of the
reopening.
No matter how egregious the error resulting from the
failure of an adjudicator to hear critical, newly discovered
evidence (which is highly compelling in this case -- so
compelling that it appears to have the capacity to negate the
original opinion and order in this case as a matter of law), the
injury could not be compensated with respect to the two-year
"waiting period."
This two-year hiatus virtually leaves an
injured worker without any remedy at all -- at least for that
two-year period.
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Such a result does not comport with or promote the rule
of statutory construction that the statute "be liberally
construed in favor of the employee to effectuate the beneficent
purposes of the Compensation Act."
Marc Blackburn Birch Company
v. Yates, Ky., 424 S.W.2d 814, 816 (1968).
That old rule was
reiterated more recently in Wilson v. SKW Alloys, Inc., Ky. App.,
893 S.W.2d 800, 802 (1995):
"... we must adhere to the general
rule that the workers' compensation statutes will be liberally
construed to effect their humane and beneficent purposes."
Prolific case law is replete and consistent with that rule of
liberal construction, going so far as to hold that where there is
any doubt as to an employee's entitlement to receive benefits,
the doubt is to be resolved in favor of the employee.
Hinkle v.
Allen-Codell Co., 298 Ky. 102, 182 S.W.2d 20 (1944).
This case spotlights and places in bold relief the
inequity flowing from an absolute ban on reopenings for two years
with regard to a claimant.
The compelling evidence of the fact
of a surgery to correct two herniated discs on January 8, 1997,
squarely refuted the specific finding of the ALJ only months
earlier in his decision of May 8, 1996, that claimant did not
have herniated discs and that his pain was attributable to a low
back strain.
And yet under the 1996 statute, the claimant has no
recourse, no remedy for his injury, for at least two years -despite the obvious and significant error at the heart of the
ALJ's decision.
This is precisely the kind of error ("an error
in assessing the evidence so flagrant as to cause gross
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injustice") recited as grounds for appellate intervention by our
Supreme Court in Western Baptist Hospital v. Kelly, Ky., 827
S.W.2d 685, 687 (1992).
Our courts have consistently held that a reopening is
justified under such circumstances.
In Messer v. Drees, Ky., 382
S.W.2d 209, 213, the court stated:
When subsequent events indicate that an award
was substantially induced by a misconception
as to the cause, nature or extent of
disability at the time of the hearing,
justice requires further inquiry. Whether it
be called a 'mistake' or a 'change in
conditions' is a matter of mere semantic
taste. The important question is whether the
man got the relief to which the law entitled
him, based upon the truth as we are now able
to ascertain it.
The court cited that holding again in Reynolds v. Justice Coal
Company, Ky., 425 S.W.2d 750 (1968).
More recently, the Supreme
Court addressed a case of a clear misdiagnosis of hypothyroidism
as the underlying cause of the overall medical problem where,
after entry of the opinion and order, medical tests revealed a
torn rotator cuff at the right shoulder to have been the correct
cause of the injury.
Supreme Court stated:
manifest injustice."
In ordering a reopening of this claim, the
"This is egregious error and constitutes a
Durham v. Copley, Ky., 818 S.W.2d 610, 612
(1991).
The error in this case is no less egregious, and the
manifest injustice cannot be corrected under the present statute.
I would, therefore, hold KRS 342.125(3)(8) to be unconstitutional
as applied.
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On its face, the statute appears to serve a legitimate
state interest of imposing a new order of predictability and
efficiency in reopenings.
As applied, however, it results in
allowing a wrong to go remediless in violation of the legitimate
expectations and constitutional rights of the claimant.
It has
been black-letter law since the inception of workers'
compensation legislation that the substantive rights of an
employee/claimant are fixed and defined by all statutory
provisions in effect at the time of an injury and that, as such,
his legitimate expectations upon that status of the law as of
date of injury are an integral part of his employment contract:
The substantive rights of a claimant
under the workers' compensation statute are
fixed by the statutory provisions in effect
on the date of his injury. See McGregor v.
Pip Johnson, Ky., 721 S.W.2d 708, 710 (1986).
This is so because the provisions of the
statute in effect at the time of injury are
considered to be a part of the contract of
employment between the claimant and his
employer. (Emphasis added.)
Collins v. Cumberland Gap Provision Co., Inc., Ky. App., 754
S.W.2d 864, 866 (1988).3
The change as to reopening, while
facially neutral, has had the practical impact on Williams of
3
This case was superseded by Kentucky Insurance Guaranty
Association v. Conco, Inc., Ky. App., 882 S.W.2d 129 (1994),
explaining Collins, supra, and holding that remedial workers'
compensation legislation that reversed a cap on liability could
be applied retroactively since it was remedial in nature and did
not operate to take away vested rights in derogation of the
remedial purpose of the workers' compensation. Pursuant to this
reasoning, there can be no retroactive application of the statute
at issue here as it is far from remedial in impact.
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severely altering the terms of his employment contract and thus
arbitrarily denying him his right to substantive due process.
It cannot be argued that Williams has acquiesced to and
elected this substantive change in his employment remedies merely
by continuing to participate in workers' compensation or by
failing to waive specifically workers' compensation coverage in
lieu of his right to pursue his common law tort remedy, most
clearly set forth at §54 of the Kentucky Constitution: "The
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."
It is wholly illogical and inconsistent to
construe a waiver on Williams's part of his right to seek
recovery for an injury by arguing that a new statute, having
significant and controlling impact on his right to recover for an
injury, a statute not in effect either at the time of his
employment or at the time of his injury, should be permitted to
supersede and to emasculate by implication those substantive
rights which he believed to constitute his contract of employment
at the time of his employment.
I concur with appellant's argument that KRS
342.125(3)(8) results in a denial of equal protection of the laws
in violation of Amendment 14 of the United States Constitution
and of §§2, 3, and 59 of the Constitution of Kentucky.
1996 amendments, an employer is at liberty to reopen:
Under the
(1) to
contest medical expenses, (2) to determine fraud, or (3) to
reduce an award of permanent total disability upon an employee's
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return to work.
An employee, on the other hand, has absolutely
no ability to reopen for two years from the date of the decision.
Additionally, injury endured during the two-year interim will
assuredly go uncompensated since any award upon reopening must
run from the date of reopening.
Such disparity in treatment of
employers and employees is both untenable and unconstitutional as
a violation of the right of equal protection of the laws.
In summary, I would hold that KRS 342.125(3)(8) is
unconstitutional as applied.
I would urge a remand of this case
to the ALJ for him to consider the newly discovered medical
evidence according to the analysis set forth in this dissent.
BRIEF AND ORAL ARGUMENT
FOR APPELLANT:
BRIEF FOR BOULWARE CENTER,
INC.:
Lawrence E. Osterhage
Louisville, KY
William P. Swain
Wesley G. Gatlin
Louisville, KY
ORAL ARGUMENT FOR BOULWARE
CENTER, INC.:
Wesley G. Gatlin
Louisville, KY
BRIEF AND ORAL ARGUMENT
FOR SPECIAL FUND:
David R. Allen
Louisville, KY
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