RENDERED: APRIL 27, 2017
,,Supmut ~Inutf of~~~[
2014-SC-000526-WC . ·
[Q)IA 1fEu/~b1 K,~ 14,;...,.,,.1, Q:_
MARSHALL PARKER APPELLANT ·
ON APPEAL FROM COURT OF APPEALS
CASE NO. 2013-CA-001978-WC
v. WORKERS' COMPENSATION BOARD
NO. 09-WC-99663
WEBSTER COUNTY COAL, LLC (DOTIKI APPELLEES
MINE); HON. STEVEN G. BOLTON,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
AND 20 l 4-SC-000536-WC
WEBSTER COUNTY COAL, LLC (DOTIKI MINE) APPELLANT
ON APPEAL FROM COURT OF APPEALS ·
CASE NO. 2013-CA-001968·-wc
v. WORKERS' COMPENSATION BOARD
NO. 09-WC-99663
MARSHALL PARKER; APPELLE ES
MULTICARE MADISONVILLE; DR.
RICHARD HOLZKNECHT; COOP HEALTH
SERVICES; DEACONESS HOSPITAL;
DAVID D. EGGERS, M.D.;
NEUROSURGICAt CONSULTANTS; JAMES
M. DONLEY, M.D.; CENTER FOR
ORTHOPEDI~S; WAYNE C. COLE, D.O.;
KELLY L. COLE, D.O.; HON. STEVEN G.
BOLTON, ADMINISTRATIVE LAW·JUDGE;
AND WORKERS' COMPENSATION BOARD
OPINION OF THE COURT BY JUSTICE KELLER.
AFFIRMING IN PART AND REVERSING
AND REMANDING IN PART
In separate appeals, Marshall Parker challenges the constitutionality of
Kentucky Revised Statute (KRS) 342. 730(4) and Webster County Coal (Webster
County) challenges the Administrative Law _Judge's (ALJ) award ofbenefits to
Parker for a back injury. The Board affirmed the ALJ's award of benefits but,
because it lacks the jurisdiction to do so, the Board did not address Parker's
constitutional claim.I The Court of Appeals affirmed the Board and found that
KRS 342.730(4)
.
is ' constitutional. For the following
.
reasons, we affirm the
Court of Appeals regarding Parker's entitlement to benefits. However, we
reverse that Court's holding that KRS 342.730(4) is constitutional and remand
this matter to the ALJ for an award consistent with this opinion.
I. BACKGROUND.
. . .
Parker was born on October 5, 1939, and he began working as an
underground coal miner for Webster County in 1974. On September 8, 2008,
· Parker· slipped while trying to climb over a conveyor'belt. He testified that he
felt pain in his right knee, righthip, and low back after this incident. De~pite
his injuries, Parker continued to work for approximateiy.three months. Parker
eventually uriderwent right knee surgery in December 2008 and lumbar spine
I The Board noted in its opinion thaf Webster County filed a number of medtcal
fee disputes while the appeal was pending-and that the AW had issued an order
joining additional parties after the notice of appeal had been filed. Because the AW
lost jurisdiction once.the notice of appeal was filed, the Board vacated his order.
Furthermore, the Board remanded the medical fee disputes for a determination on the
merits artd ori the necessity of joining additional parties .. Neither party has contested
this portion of the Board's opinion; therefore, we do not address it.
2
surgery in June· 2011. Following treatment, Parker has continued to have back
pain, and he has·difficulty walking and climbing stairs. He has not returned to·
any type. of work.
Webster County accepted liabilio/ for Parker's right knee injury and has
' \
paid all medical benefits associated with that injury. Because Webster County
is not contesting Parker's knee injury claim, we do not set forth the medical
evidence regarding that claim. However, Webster County did contest Parker's
back injury ~laim b8;sed on medical records containi1:1g pre-injury complaints of
low back pain and diagnostic testing that showed sigi:ificant degenerative ·
changes. Therefore, we summarize the medical evidence related to that claim
below.
In support of his back injury claim, Parker filed medical records and a
report from his spine surgeon, Dr: David Eggers. Iri his May 20, 2009 office
note, Dr. Eggers stated that Parker had suffered from "intractable low back and
right radicular leg pain" since an injury in September 2008. In his Form 107
Medical Report- Injury/Hearing Loss/Psychological Condition, Dr. Eggers
stated that Parker suffered from displacement of a lumbar disc, spinal stenosis,
and acquired spondylolisthesi~. Dr. Eggers related these conditions to Parker's
injury; however, he did not specify the date of the injury. Furthermore,
although he had been asked to do so, Dr. Eggers would not give an opinion
regarding what permanent impairment or restrictions Parker has.
· Webster County filed records from Tri-State Orthopedic Surgeons and
Dr. James Donley. The Tri-State records.showe.d, in pertinent part, that Parker
3
complained of and sought treatment for low back and leg pain in September
2003, March 2005, and May 2006. It appears from the records that Parker
received at least one epidural steroid injection in late 2005 and one epidural
steroid injection in May 2006. Furthermore, Parker's 2003 lumbar MRI
revealed multi-level degenerative changes with mild to moderate stenosis. Dr.
Donley's records reveal, in pertinent part, that Parker complained of ach.es and
pains/strains but had not received any treatment for back pain in the two
years befor~ the work injury.
Webster County also filed reports from Dr. Russell Travis, Dr. Bart
Goldman, and Dr. William Gavigan. Dr. Travis, in his October 9, 2009 report,
stated that Parker suffered from right L4 radiculopathy secondary to
I
degenerative spondylolisthesis with a bulging disc at L4-5 and significant
·degenerative changes throughout the iumbar spine. Dr. Travis concluded that,
despite Parker's significant pre-existing lurribar degenerative changes, .the
surgery then being recommended by Dr. Eggers was work-related . .In reaching
that conclusion, Dr. Travis stated that he had seen "no records that indicate
Mr. Parker had significant low back pain and no right lower extremity pain
prior to this." In a November.20, 2009 addendum to his October report, Dr.
Travis stated that, upon review of an office note from one of Parker's physicians
dated September 28, 2009, Parker's ."current problem is not related directly to
the injury of 9 /2.8/2008, but is clearly a question of pre-"existing severe
degenerative changes with neural impingement and previous symptomatic
4
problems with his low back." We note that Dr. Travis had reviewed and
summarized the September 28, 2008 office note in his October 2009 report.
Dr. Goldman stated that Parker suffered fro:r;n degenerative retrolisthesis
at L3-4 which pre-existed the September 8, 2008 work-injury. Accordingto Dr.
Goldman, the surgery performed by Dr. Eggers was to alleviate an active pre-
existing condition, not because of Parker's work injury.
' .
D:u.· Gavigan made diagnoses of severe degenerative-disc disease that
actively pre-existed the work injury. He opined that ali of Parker's back
treatment was related to that pre-existing active condition and not to the work ·
injury. Finally, Dr. Gavigan, who imposed no restrictions, assigned Parker a
22% impairment rating; all of which he attributed to the pre-existing active
condition.
Based on the preceding evidence, the AW found that Parker suffered a
lower back injury on September 8, 2008 and that none of Parker's back-related
impairment was the result of a pre-existing active "disability /impairment of the
. .
back under the holding in Finley (supra)."2 The AW also determined that
'
Parker is not totally disabled and awarded income benefits based on Parker's
4% kne·e impairment and his 22% lumbar spine impairment for a combined
permanent impairment rating of 26%. However, because Parker had already ·
received two years of temporary total disability income benefits, the AW found
that Webster County did riot have liability for payment of any additional
2 Finley v. DBiv.ITechS., 217 S.W.3d 261 (Ky. App. 2007).
5
income benefits pursuan_t to KRS 342.730(4). The Board and the Court of
Appeals affirmed.
, As· noted above, both Webster County and Parker have appealed from the
Court of.Appeals's opinion. Webster County argues that the evidence did not
support the AW's award of benefits related to Parker's low back condition.
Parker appeals the AW's termination of income benefits pursuant to KRS
342.730(4). We set forth additional necessary background information below.
II. STANDARD OF REVIEW~
The AW has the sole discretion to determine the quality, character, and
substance of the evidence and may reject any testimony and believe or
. .
disbelieve various parts ·of the evidence regardless of whether it comes from the
same witness or the same party's total proof. Paramount Foods, Inc. v.
Burkhardt, 695 S.W.2d 418, 419 (Ky._ 1985). Parker had the burden of proving
' .
that his back condition is related to the work injury. Gibbs v. Premier Scale.
Company/Indiana
. Scale Co., 50 S.W.3d 754, 763 (Ky. 2001), as modified on
.
denial of reh'g (Aug. 23, 2001). Because he was successful before the AW, the
question for us on appeal is whether the AW's finding of work relatedness is
supported by substantial evidence. Whittaker v. Rowland, 998 S.W.2d 479,
481 (Ky. 1999). "Substantial evidence has been defined as some evidence of
substance and relevant c.onsequence, having the fitness to induce conviction in
the minds of reasonable men." Id. at481-82. Thus, the determinative
question.to be answered on review is whether the AW's finding that Parker's
back condition is related to the work injury "is so unreasonable under the .
6
evidence that it must be viewed as erroneous ·as a matter of law." KRS
342.285; Ira A. Watson Dept. Store v. Hamilton,. 34 S.W.3d 48, 52 (Ky. 2000).
While we give great deference to the AW's factual findings, questions of
law, i.e., whether KRS 342.370(4) is constitutional, we review de novo. See U.S..
Bank Home Mortgage v. Schrecker, 455 S.W.3d 382, 384 (Ky. 2014). With the
preceding standards in mind~ we first address Webster County's argument that
the AW's finding that Parker suffered a work-related back injury is not
\
supported by the evidence. We then address Parker's argument that KRS
342. 730(4) is unconstitutional.
III. ANALYSIS.
A. Whether Parker suffered a work-related back injury.
Webster County argues that there was not sufficient evidence to support
a finding that Parker suffered a work-related back injury. It notes that Drs.
Gavigan, Travis, and Goldman all opined that P_arker's·back condition actively
pre-existed his September 2008 injury. It also notes th~t, although Dr. Eggers
referred to an ipjury as being the cause of Parker's back condition in his Form
107, he did not specify which· injury. Finally, Webster County notes th~t
Parker's medical records and his testimony indicate that he had complaints of
low back pain for several years preceding the September 2008 injury.
While Dr. Eggers's Form 107 may have been deficient regarding
causation, he related Parker's back condition to the work injury in his initial
office note. Furthermore, Dr. T~avis's two reports are arguably inconsistent.
Initially, Dr. Travis, who listed and summarized the medical records he
7
reviewed, opined that Parker's back .condition was related to the work injury.
In his· second report,. Dr. Travis listed and summarized those same medical
records as supporting his opinion that Parker's back condition· actively pre-
existed the work injury. The AW was free to consider all of Dr. Eggers's
\
records and to believe_ Dr. Travis's initial report and to disbelieve his ~econd
report. That evidence was substantive and sufficient to suppo:r:t the AW.'s
finding of work-relatedness.
Furthermore, although Parker did complain of and receive treatment for
low back pain prior to the work injury, he made no such complairits nor
received any such treatment in the two years preceding the September 2008
work injury. In fact, Parker worked an average of 70 hours per week in that
two-year period, and Webster County produced no evidence that any physician
had assigned Parker an impairment rating or imposed permanent restrictions
on Parker's work activities as a result of his pre-injury complaints of back pain.
As stated in Finley v. DBM Techs., 217 S.W.. 3d 261, 265 (Ky. App. 2007):
a pre-existing condition that is both asymptomatic and produces
no impairment prior to the work-related injury constitutes a pre-
existing dormant condition. When a pre-existing dormant condition
is aroused into disabling reality by a work-related injury, any
impairment or medical expense related solely to the pre-existing
condition is compensable. A pre:-existing condition may be either
temporarily or permanently aroused. If the.pre-existing condition
completely reverts to its pre-injury dormant state, the arousal is
··considered temporary. If the pre-existing condition does not
completely revert to its pre-injury dormant state, the arousal is
considered permanent, rather than temporary.
The AW's fi~ding that Parker's back condition did not actively pre-exist
the work injury but is related to that injury is supported by both the evidence
8
and the law. We cannot say the AW's finding was erroneous as a matter of
law, and we therefore affirm it. See Ira _A. U(atson Dept. Store, 34 S.W.3d at48.
B. Whether KRS 342. 730.(4) is constitutional.
KRS 342.730(4) states in pertinent part that:
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 lasf exposure,
whichever last occurs.
At the time of his injury, Parker was 68 years of age and qualified for
"normal old-age Social Security retirement benefits.". Under KRS 342. 730(4),
the AW found that Parker, who had received two years of temporary total
disability benefits, was not entitled to any additional income benefits related to
his permanent disability. Parker argues that KRS 342.730(4)
unconstitutionally infringes on his right to due process, abrogates his jural
rights, a,nd violates the Equal Pro.tection Clauses of the _United States and
Kentucky Constitutions. Webster County argues that, based on thi~ Court's
prec.edent, Parker's argument is without merit.
At the outset, we note that this Court previously ~etermined that KRS
342.730(4) as it presently exists is constitutional.3 See McDowell v. Jackson
Energy RECC, 84 S.W:3d 71 (Ky. 2002); and Keith v. Hopple Plastics, 178
3 In 1994, the legislature added paragraph (4) to KRS 342.730, which provided
that workers' compensation income benefits would be reduced by 10% when an
employee' reached ~ge 65 and by 10% every year thereafter until the employee reached
-age 70. In Wynn v. Ibold, Inc., 969 S.W.2d 695 (Ky. 1998), we held that version of KRS.
342.730(4) was constitutional. The legislature adopted the current version of KRS
342.730(4) in 1996. · .
9
S.W.3d 463 (Ky. 2005), as corrected (Dec. 13, 2005). We also are cognizant of
the strong presumption of constitutionality afforded to legislative acts. Id. at
468. However, having reviewed our prior opinions, we now determine that they
were incorrectly decided regarding the issue of equal protection. In doing. so, we
are:
as always, .mindful of the value of prece.dent and the doctrine of
stare decisis. The doctrine of stare decisis "is the means by which
we ensure that the law will not merely change erratically, but will
develop in a.principled and intelligible fashion." Changing the "ebb
and flow of settled law'' is not something we take lightly, and we do
so only after careful consideration. While stare decisis "permits
society to presume that bedrock principles are founded in the law
rather than in the proclivities of individuals," it does not
necessitate that this Court "unquestioningly follow prior decisions"
when we are otherwise compelled. This Court is not assigned the
duty of maintaining the watch as the law ossifies.
Osborne v. Keeney, 399 S.W.3d 1, 16-17 (Ky. 2012) (footnotes omitted).
The dissent questions our decision to re-visit McDowell, stating that the
only change that has occurred, since that opinion is to the composition of this
Court. We do not disagree that the composition of the Court has changed;
. .
however, we note that the Court was closely divided on this issue in McDowell;
Furthermore, this Court determined in 2011 that there was no rational basis
for applying a different evidentiary standard to employees who contracted coal
workers' pneumoconiosis than that applied to workers who contracted non-coal
workers' pneumoconiosis. See Vision Mining, Inc. v. Gardner, 364 S.W.3d 455
·(Ky. 2011). This Court did-so de.spite previously holdingthat a rational basis
10
existed for treating those two groups differently. See Kentucky Harlan Coal Co.
v. Holmes, 872 S.W.2d 446 (Ky. 1994). 4
It is undisputed that, because of KRS 342.730(4), injured older workers
are treated differently from their younger coU:nterp~rts. When a statuto:ry
provision results in disparate treatment, we look to the 14th Amendment of the
United States Constitution and to Sections 1, 2, and 3 of the Kentucky
Constitution. The goal of those constitutional provisions "is to 'keep[]
governmental decision makers from treating differently persons who are in all
relevant respects alikem while recognizing that "nearly all legislation
differentiates in so~e manner between different classes of persons." Vision
Mining, 364 S.W.3d at 465 (citation and footnote omitted). In order to maintain
the necessary balance between the goals of the constitutional provisions and
legislative reality, the Courts apply different levels of scrutiny depending "on
. .
. the classification made in the statute and the interest affected 'by it." Id.
Currently, there are three levels of :i;-eview applicable to an equal
protection challenge. Strict or intermediate scrutiny applies ·
whenever a statute makes a classification on the basis of a
"suspect" or."quasi-suspect" class, respectively. Conversely, "if the
statute merely affects social or economic.policy, it is subject" to a
less searching form of judicial scrutiny, i.e. the "rational basis"
test.
4 We recognize that the Court in Holmes specifically addressed the different
basis for awarding benefits to employees who have contracted coal workers' vs. non-
coal workers' pneumoconiosis, while the Court in Vision Mining was addressing the
standard of proof and the consensus process. However, the.dissent in Vision would
have relied on Holmes to support affirming the disparate evidentiary standards and
the consensus process: Regardless, the fact remains that this Court has revisited its
decisions regarding the constitutionality of portions of KRS 342 when appropriate to
db so.. . .
11
. .
Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 465-66 (Ky. 201 l)(citations and
footnotes omitted). "Workers' compensation statutes concern matters of social
and economic policy. As a result, such a statute is· not subject to strict or
[intermediate] scrutiny and therefore must be upheld if a 'rational 'basis' or
'substantial and justifiable reason' supports the classifications that it cre~.tes."
Id. at 466 (citation omitted).s Proving the absence of a rational basis or of a
substantial and justifiable reason for a statutory provision is a steep burden;
however, it is not an insurmountable one. Id. at 468-69.
The focus of the parties (and of the majorities ,in our prior decisions) is on
the perceived discrimination between injured older workers and injured
younger workers. This focus is ·understandable because, under the statute, a
worker who is injured more than 425 weeks (or 520 weeks under certain
circumstances) before he or she reaches normal Social Security retirement age
will receive all of the permanent partial disability income benefits to which he
or she is entitled. 6 A worker who is injured less than 425 weeks before he or
s We note that, while federal case law may be instructive regarding issues of
·equal protection; we are not bound to follow federal equal protection analysis. As we
noted in Elk Harri Coal Corp. v. Cheyenne Resources, Inc., 163 S:W.3d 408, 418 (Ky.
2005), "the Kentucky Constitution's equal protec:tion provisions ... are much more
detailed and specific than the Equal Protection Clause of the United States
Constitu~on." The analysis employed by our federal counter-parts.acts as a floor,
below which we may not fall, not as a ceiling, above which we may n·ot rise. Id. In fact,
"we have construed our Constitution as requiring a 'reasonable basis' or a 'substantial
and justifiable reason' for discriminatory legislation in. areas of social and economic
policy." Id. at 418-19. In this case however, the preceding distinction, while.
important, is one without a difference because KRS 342.730(4) does not pass the less
stringent rational basis test.
6 This does not take into account any payment of temporary total disability
income benefits, which could, as it did here, alter the number of weeks of entitlement
to permanent disability benefits. ·
12
she reaches normal Social Security retirement age will not receive all of the
permanent partial disability
.
income benefits to which
.
he or she is entitled. The
rational bases for treating younger ahd older workers differently is: (1) it
prevents duplication of benefits; and (2) it results in savings for the workers'
compensation system. Undoubtedly, both of these .are rational bases for
treating those who, based on .their age, have qualified for normal Social
Security retirement benefits differently from those who, based on their age,
have yet to do so.
However, the equal protection problem with KRS 342.730(4) is that it
treats injured ·older workers who qualify for normal old-age Social Security
retirement benefits differently than it treats injured older workers who do not
qualify. As Justice Graves noted in his dissent in McDowell, "Kentucky
teachers ... have a retirement program and do no~ participate in social
'
security.". 84 S.W.3d at 79. Thus, a teacher who has not had any outside
employment and who suffers a work-related injury will not be subject to the
limitation in KRS 342.730(4) because that teacher will never qualify for Social
Security retirement benefits. There is no rational basis for treating all other
workers in the Commonwealth differently than· teachers. Both sets of workers ·
will qualify for retirement benefits and both have contributed, in part, to their
"retirement plans:~ However, while teachers will receive all of the workers'
compensation income benefits to which they are entitled, nearly every other
worker in the Commonwealth will not. This disparate treatment does not
accomplish the goals posited as the rational bases for KRS 342.730(4). The
. 13
statute does prevent duplication of benefits, but only for non-teachers because,
' '
while nearly every other worker is foreclosed from receiving "duplicate
benefits," teachers are n~t.
The dissent indicates that our analysis should be limited to determining
if the "overall statutory scheme unlawfully discriminates on the basis of age."
According to the dissent, we have wrongly viewed this matter through the
"lens" of teacher retirement and have concluded that "there is no rational basis
for treating teachers differently from all other workers in the Commonwealth."
To the contrary, what we have concluded is that there is no rational basis for
treating ali other workers in the Commonwealth differently from teachers.
The dissent also states that we have undertaken to reverse the Court. of
Appeals based on a reason not presented on appeal. However, we note that
Parker has challenged the constitutionality of KRS 342.730(4) on equal
protection grounds at every level. While he has not specifically mentioned the
disparate treatment- between teachers and all other employees in the
Commonweaith, he has challenged the disparate treatment between those who
qualify for normal old age social security retirement and those who do not.
Thus, we believe that is sufficient to preserve the issue for our review.
As to the alleged savings to the workers' compensation program, we
discern no rational basis for this disparate treatment. In Vision Mining, we
addressed the evidentiary standard and claims' processing procedures that
were being applied in coal workers' pneumoconiosis c1aims. We concluded that
there was no rational basis for treating coal workers suffering from
14
pneumoconiosis differently from other workers suffering from pneumoconiosis.
364 S.W.3d at 473. In doing so, we rejected the employer's argument that the
disparate treatment was justified because it resulted in monetary savings to
the workers' compensation system. Id. at 472. ("The state would save more
money by subjecting all occupational pneumoconiosis claimants to the more
exacting procedure and higher rebuttable standard.")(emphasis in original).
Furthermore, we noted that "[i]n considering·an equal protection challenge, a
court does not engage in accounting of debits and credits; rather the court
must examine whether similarly situated individuals have been treated
differently ... and, if so, whether or not such treatment is rationally related to)
a legitimate state interest.'; Jd.. at 474. Here, injured older workers who qualify
for normal old-age Social Security retirement benefits.are treated differently
than injured older workers who do not. There is no rational basis for treating
these two groups of injured older workers differently.
The dissent states.that KRS 342.730(4) js constitutional, despite its
disparate treatment of older workers, because the exclusion of teachers from.
its benefit limitation is an example of acceptable "underinclusiveness." We
agree with the dissent that a statutory scheme need not attack "every aspect of
a problem" in ord~r to pass constitutional muster; however such a statute
must be "free from invidious discrimination." Dandridge v. Williams, 397 ·u.s.
471 (1970).7 The problem with KRS 342.730(4) is not that it fails to attack
7In Dandridge, the plaintiffs, who had large families, challenged the Maryland.
Dep.artment of Public Welfare maxi.mum cap on AFDC benefits. 397 U.S. at 474-75.
The Court determined that the cap ·did not violate equal protection. Id. at 487 .
. 15
every aspect of the "problem" of inJt:tredworkers collecting workers'
compensation benefits and retirement benefits. The problem with KRS
342. 730(4) is that it invidiously discriminates against those who qualify for one
type of retirement benefit (social security) from those who do not qualify for
·that type of retirement benefit but do qualify for another type of retirement
benefit (teacher -retirement). B Based on the dissent's interpretation of
underinclusiveness, this Court erred when it determined that it is
unconstitutional to treat those who suffer from coal workers' pneumoconiosis
differently from those who suffer _from non-coal workers' pneumoconiosis. We
discern no reason to reconsider the wisdom of that decision.
Finally, although Parker did not argue it, KRS 342.730(4) violates the
prohibition.against special legislation found in Section 59 of the Kentucky
Constitution. "A special law i~ legislation whjclJ. 'arbitrarily or beyond
reasonable justification discr;iminates against some persons or objects and
favors others." Board of Ed. pf Jefferson County v. Board of Ed. of Louisville,
472 S.W.2d 496, 498 (Ky. 1971)'. As set forth.above, KRS 342.730(4) favors
Dandridge differs from the case herein because the Maryland statute treated all AFDC
recipients the same because all were subjectto the cap. Here, KRS 342.730(4) treats
two different groups of elderly workers differently.
8 The dissent ~so cites to Minnesota v. Clover Leaf Creamery Co., 499 U.S. 456
(1981) to support its underinclusiveness argument. However, as with l)andridge,
Clover Leaf Creamery is distinguishable. In Clover Leaf Creamery, the state of
Minnesota passed legislation regulating the sale of milk in plastic containers but
permitting the sale of milk in cardboard containers. 449 U.S. at 456. The Court held
that the statute bore a rational relationship to that state's goals of reducing landfill
and reducing energy consumption. Id. at 458 .. The Minnesota statute treated different
containers differently, but it treated all plastic containers, or containers of the same
"class," the same. Here, KRS 342.730(4) treats younger and elderly workers
differently, which is acceptable. However, it does not treat workers of the same
"class," elderly workers, equally. '
16
(
those who will not qµalify for normal old-age Social Security retirement while
discriminating against those who do qualify .
. Because we have found KRS 342.730(4) to be constitutionally infirm on
I
equal protection grounds, we need not address the other arguments raised by
Parker.
IV. CONCLUSION.
Having reviewed the record and the arguments of the parties, we discern
no rational basis or substantial and justifiable reason for the disparate
treatment of two groups of injured older workers. Thus, KRS 342.730(4)
violates the right to equal protection and is constitutionally infirm. Our
opinions to the contrary are hereby overruled, and this matter is remanded_to
the AW for entry of an opinion and award consistent with this opinion.
All sitting. Cunningham, Keller, Venters and Wright,-JJ., concur.
Minton, C.J., concurs in part and dissents in part by separate opinion, ·in
which Hughes and VanMeter, JJ., join.
MINTON, C.J., CONCURRING IN PART AND DISSENTING IN PART: I
fully concur with the majority's holding that there was sufficient evidence to
I
support the AW's finding that Parker suffered a work-related injury. But I
must respectfully dissent with regard to the majority's holding that KRS
342. 730(4) violates the Equal Protection Clause of the Fourteenth Amendment
to the United States Constitution as an l,lnlawful discrimination on the basis of
·age. I see no reason justifying our departure from well-established precedent
on this exact same issue.
17
In con~ucting this constitutional analys_is, I wholeheartedly follow the
majority's general approach. The United States Supreme Court has
consistently held that "age is not a suspect classification" for purposes of the
Fourteenth Amendment. See Kimel v. Florida Board of Regents, 528 U.S. 62
(2000). "Age classifications, unlike governmental conduct based on race or
gender, cannot be characterized as 'so seldom relevant to the achievement of
any legitimate state interest that laws grounded in such considerations are
deemed to reflect prejudice and antipathy."' Id. at 83. This standard echoes the
one in place for equal-protection claims premised on soci~l or economic-class
discrimination. In such instances, no suspect class exists, and "a statute will
comply with the Fourteenth Amendment's right to equal protection if it furthers
a legitimate state interest and there _is any conceivable rational basis for the
classes it creates." Keith v. Hopple Plastics, 178 S.W.3d 463, 466 (Ky. 2005) .
. So there is no disagreement that the proper standard of review for equal-
protection claims based on age or socioeconomic status is rational-basis
review-.the weakest tier of constitutional scrutiny on appeal.. That is, so long
'
as a statute is rationally related to a legitimate government interest, an
examining court will not hold the act unconstitutional. See Heller v. Doe, 509
U.S. 312 (1993); Keith, 178 S.W.3d at 463. Legislative acts are as such
presumed valid and the burden rests with the challenger to prove no rational
basis exists for this classification. See Lehnhausen v. Lake Shore Auto Parts
Co., 410 U.S. 356; 364 (1973) (emphasis added) ..
18
The rational-basis test imposes an admittedly enormously high bar for
challengers seeking to invalidate perceived unconstitutional statutes. The
United States Supreme Court has declared the rational-basis test is the proper
measure for distinctions of tbis type for purposes of the Fourteenth
Amendment,. and, absent a finding that our own constitution offers heighted ·
equal-protection rights, we are powerless to change that standard today. So in
both the majority decision and in my interpre'tation, KRS 342.730(4) remains
constitutionally valid so long as its goals are rationally related to a legitimate
state interest. I unfortunately disagree with the majority's conclusion that the
General Assembly has no rational basis in classifying the workforce in this
manner.
We dealt with this precise issue just over a decade ago in McDowell v.
·Jackson Energy RECC, 84 S.W.3d 71 (Ki 2002) and Keith. And in the time that
has elapsed since, I see no changes or developments in the law other-than the
composition of this Court. There has been no adjustment in either Kentucky or
federal law predicating reconsideration of the wisdom· of these relatively recent
rulings .. As .such, I vote to affirm this deeply rooted precedent ..
In McDowell, we determined that KRS 342.740(4) exists to avoid
duplication of income-replacement benefits. This structure reduces the overall
. .
cost ·or workers' compensation and improves the economic stability within state·
government. This reflects a similar policy goal from the pre-1996 tier-down
structure that had previously been upheld.by this Cour.t. See Wynn v. !bold,
969 S.W.2d 695 (Ky. 1998). And this view of the benefit structure as ~wage-
19
· loss" protection by placing· a ceiling on combined benefits "was viewed widely as
being sound public policy." Keith, 178 S.W.3d at 467 (referring to A~thur
Larson and Lex K. Larson, 9 Larson's Workers' Compensation Law§ 97.35(a)
and (b) (Matthew Bender 1997)). The McDowell Court also relied on the United
States Supreme Court decision in Richardson v. Belcher, 404 U.S. 78 (1971), in
support of its holding. In Belcher, the Court rejected an equal-protection
challenge to a portion of the Social Security Act that allowed social security
disability benefits to be reduced through overlapping state workers'
compensation benefits. Belcher, 404 U.S. at 92. The McDowell Court found no
difference under therational-basis standard between the federal offset
provision and that found in KRS 342.730. Anci l agree.
The Commonwealth's goal of financial stability to ensure the overall
viability of the state worker's compensation structure is not on~ I consider
irrational. And it does so by first recognizing that workers' compensation exists
to offset wage-loss resulting from workplace injury and then coordinating the
\
receipt of benefits to avoid duplicate recovery. Essentially, the statute exists to
prevent workers eligible for old-age social security benefits from "receiving.
greater workers' compensation benefits than similarly situated workers who are
totally disabled." Keith, 178 S.W.3d at 468. Though the statute admittedly, and
·obviously discriminates against older workers, it advances a legitimate state
goal of ensuring the overall viability and stability of the workers' compensation
structur:e as a whole. While this may appear unfair and exploitative of some of
20
the Commonwealth's oldest and most vulnerable workers, lam not prepared to
say it is unconstitutional to do so.
The majority opinion in fact agrees that the prevention of duplicate
benefits and the continued solvency of the workyrs' compensation system are
indeed rational bases for treating those who have qualified for normal social
·security retirement benefits differently from those whq have yetto do ·so. And
though it does not expressly say so, I imagine the majority would also find
these state interests legitimate. So accordiilg to our highly deferential standard
of review, the analysis should end ther~.
But the majority continues by contrasting the general workers'
compensation structure with the teacher retirement system, a point not raised
or argued to us or in the proceedings below. As the majority reminds us,
teachers have their own retirement and do. not participate
. .
in social security.' So
accordingly, an older teacher who suffers a workplace inJ~ry will never be
subject to the limitation in KRS 342.730(4) because the teacher will never
quaH.fy for social security. This leads to the majority's ultimate conclusion that
there is no rational basis for treating teachers differently from all other workers
in the Commonwealth. But that is not the question before· this Court in the
case before us today.
In addressing this observation, the analysis 'is no longer a dispute ov~r ·
whether our overall .statutory scheme unlawfully discriminates on the basis of .
age. Instead, the majority takes its eyes off the issue before us and refocuses
attention on whether state government unconstitutionally distinguishes benefit
21
/
availability across different professions. And the majority is justified in
recognjzing this distinction. Perhaps there is indeed a novel question whether
there is a rational· basis (or whatever standard is invoked for. distinctions of this
type-if it even exists). to treat teachers differently from any other worker in the
Commonwealth. Maybe the real question at the heart of that issue requires a
close examination of the teacher retirement system to see whether there is a
good reason to continue to exempt this profession from KRS 342.730(4), or
whether this is simply a loop~ole in the system.
Those disparities
. considered,. that statute simply is. not before the court
'
for our review. It has no doubt appeared in cases of this kind, to be sure, and it
.formed the central basis in Justice .Graves's dissent in McDowell. The majority
reprises Justice Graves's argument, though this time crafted as a majority
opinion of this Court. But make no mistake, we have not been tasked with
reviewing the exception retired teachers enjoy under the current parameters of
the workers'compensation system. Even entertaining this argument, for the
moment, leaves me equally unpersuaded. To me, viewing teacher retirement
through the lens of this current matter, I am highly skeptical of its usefulness
in conclusively determining that this statute - KRS 242. 730(4) -· violates the
Fourth Amendment's guarantees of equal protection under the law. And the
)
highly deferential rational-basis standard of review clinches the issue for me.
For KRS 342.730(4) to remain constitutional, we need only consi?er any
reasonably conceivable state of facts that could offer a rational basis for the
classifications made by the General Assembly in drafting the statute. See
Commonwealth Natural Res. & Envtl. Prot. Cabinet v. Kenetec Coal Co., Inc:, 177
S.W.3d 718, 738 (Ky. 2005) (Cooper, J., concurring in part and dissenting in
part). Though certainly some in the majority may conclude there is no .
conceivable basis of rationality in the statute's distinction altogether,
comparison to the teacher retirement systerri offers us little to no guidance in
reaching a determination either way.- Under rational-basis review, "the
possibility that a classification II}ight result in some practical inequity doe.s not
cause it [t-he statute] to fail." Id. A~ the Supreme Court held in Heller v. Doe by
Doe, 509 U.S. 312 (1993), a statutory classification can fail only if it is
completely irrelevant to the achievement of what the majority admits are
legitimate state interests. Id. at 324 (emphasis added).
Additionally, a stattite's underinclusiveness in achieving its. stated
purpose is insufficient grounds to hold it unconstitutional under the rational-
basis test. See Kenetec Coal, 177 ~.W.3d at 740. In exercise of its .
constitutional powers, alegislature is "free to choose to remedy only part of a
problem. It may select one phase of a field and apply a- remedy there, neglecting
the others." Id. (internal citations omitted). In Dandridge v. Williams, 397 U.S.
4 71 (1970), the Supreme Court held that the "Equal Protection Clause do~s not
require that a State must choose between attacking every aspect ofa problem
or not attacking the problem at all. It is enough that the State's action be
rationally based and free from invidious discrimination." Id. at 486-87. See also
Minnesota v. Clover Leaf Creamery Co., 499 U.S. 456, 466 (1981) ("[A]
legislature need not strike at all evils at the same time or in the same way."). I
23
believe the General Assembly's failure to include all retired workers in its
comprehensive workers' compensation. scheme is this .underinclusiveness
doctrine at work. This incomplete application does not undermine the
legislature's goals or undercut the rationality of its distinction; it only
highlights its failu;re to perfectly tailor its interest across the board. But
ultimately, the fact that the line may have been drawn differently at one point
is a question more appropriately committed for legislative, rather than judicial,
consideration. See United States R.R. Ret. Bd. v. Fritz, 499 U.S. 166, 179)
(1980).
To me, this distinction actually mitigates accusations of ageism; the
statutory distinction is more about benefit eligibility and less a.bout age
discrimination. A distinction between teachers and general workers
undoubtedly exists, but I cannot say it is an age-based classification. I am
unprepared and unwilling to evaluate these other equal-protection concerns
today. I do recognize the majority's concerns, but I am·uncomfortabledepai:ting
from Court precedent at this juncture.
I must also further take issue that the majority opinion classifies KRS
342.730(4) as uncon1stitutional special legislation prohibited under Section 59
of the Kentucky Constitution. Unfortunately, like the teacher-retirement
exception, no party raised this issue at any point in the proceedings below nor
offered any arguments in their brief to us suggesting that this statute is special
legislation. Although we may affirm a lower-court ruling for any reason
appearing in the record, case law and our own judicial prudence dictate that
24
we should be reluctant to reverse a judgment for reasons not presented on
appeal or argued below. And with respect to workers' compensation, KRS
342.285 further guides us; if the issue is not raised before an Administrative
Law Judge, it may riot be rais~d later on appeal. Because this issue appears for
the first time in the majority opinion, we should refrain from addressing it
without at least inviting the parties to brief this new constitutional argument.
I respectfully dissent as to these portions of the majority opinion.
Hughes and VanMeter, JJ., join ..
COUNSEL FOR AP~ELLANT / APPELLEE MARSHALL PARKER:
Thomas Lawrence Hicks
Cetrulo, Mowery & Hicks, PSC
COUNSEL FOR APPELLEE/ APPELLANT WEBSTER COUNTY COAL:
Stanley Shields Dawson
Fulton & Devlin LLC
COUNSEL FOR APPELLEES MULTICARE MADISONVILLE,
DR. RICHARD HOLZKNECHT, DEACONESS HOSPITAL,
COOP HEALTH SERVICES:
John C. Morton ·
Morton Law LLC
UNREPRESENTED APPELLEES:
David D. Eggers, M.D.
Neurosurgical Consul tan ts
James M. Donley, M.D. ·
Center for Orthopedics
Wayne C. Cole, D.O.
Kelly L. Col.e, D.O.
. 25