Vision Mining, Inc. v. Gardner

MINTON, C.J.,

dissenting:

Under the rational basis review, this Court should not overturn legislative action on Equal Protection grounds “unless the varying treatment of different groups or persons is so unrelated to the achieve*476ment of any combination of legitimate purposes that we can only conclude that the [General Assembly’s] actions were irrational.” 43 And we should be “quite reluctant to overturn [legislative] action”44 even if “the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous.”45 In my view, the majority opinion reaches its intended result by ignoring these well-settled tenets of law, invading the province of the legislature to force a sea-change in Workers’ Compensation law and leaving Kentucky’s Equal Protection precedent in shambles. Respectfully, I must dissent.

I would find that the consensus procedure and the clear and convincing burden of proof are both rationally related to the legitimate government objectives of obtaining unbiased medical diagnoses and prompt and efficient processing of occupational disease claims. Equal Protection law does not require a classification between coal-related pneumoconiosis claims and claims of pneumoconiosis from other dust sources to be based on science. Moreover, the special benefits awarded to coal workers with pneumoconiosis further justify applying different procedures and standards to coal-related pneumoconiosis claims.

Rather than enacting Kentucky Revised Statutes (KRS) 342.316(3) and (13) out of a desire to harm coal workers, as the majority opinion unfairly suggests, every expression by members of the 2002 session of the General Assembly supports the conclusion that the legislature intended the amendments to Chapter 342 to benefit coal workers by allowing coal miners with pneumo-coniosis to receive more benefits in an efficient manner. Whether or not the amendments succeeded in achieving these goals is not the Court’s concern under proper Equal Protection analysis. The deciding factor is that the legislature could have rationally believed the consensus procedure and the clear and convincing rebuttal standard would ensure unbiased, prompt, and efficient processing of coal-related pneumoconiosis claims. So I would uphold KRS 342.316(3) and (13).

I. THE CONSENSUS PANEL AND THE CLEAR AND CONVINCING STANDARD FOR REBUTTAL ARE RATIONALLY RELATED TO THE LEGITIMATE GOVERNMENTAL OBJECTIVES OF UNBIASED, PROMPT, AND EFFICIENT PROCESSING OF CLAIMS.

“The 14th Amendment to the United States Constitution requires persons who are similarly situated to be treated alike.”46 Under federal Equal’ Protection analysis, statutes concerning social or economic matters are examined under the rational basis test; and the classifications they make must be rationally related to a legitimate state interest.47 “Sections 1,2, and 3 of the Kentucky Constitution provide that the legislature does not have arbitrary power and shall treat all persons equally. A statute complies with Kentucky [E]qual [Protection requirements if a ‘reasonable basis’ or ‘substantial and justifiable reason’ supports the classifications *477that it creates.”48 Essentially, the federal and state Equal Protection standards are the same; and a single analysis can be applied to both.49

Review of the legislative history surrounding the 2002 amendments of KRS Chapter 342 reveals at least two legitimate governmental objectives behind the consensus procedure and the clear and convincing rebuttal standard.50 The 2002 General Assembly rationally could have believed they would secure unbiased medical diagnoses of coal-related pneumo-coniosis and ensure prompt and efficient processing of those claims. These are undeniably legitimate governmental objectives. And Gardner and Martinez have not carried their burden of proving “that the facts on which the classification is apparently based could not reasonably be conceived to be true” by the legislature.51

A. Consensus Procedure.

As demonstrated by the disparity in the parties’ evidence in this case, “B” readers hired by the parties to provide medical opinions in coal-related pneumoconiosis claims often differ greatly concerning the presence or severity of the disease. The adoption of the consensus process and enactment of KRS 342.792 imply a conclusion by the 2002 General Assembly that opinions from a panel of three physicians who are also “B” readers, but who are hired by the commissioner, would be unbiased. For this reason, they would provide a more accurate and persuasive assessment of the worker’s actual condition than the parties’ experts. And the consensus of such a panel would be more persuasive than the opinion of a single university evaluator.

Legislative history reveals the 2002 General Assembly’s concern with preventing “doctor shopping” and the need to obtain unbiased medical opinions. One Senator took the Senate floor to speak in support of the bill, stating the amendments ensure “the integrity of the process by focusing on obtaining the best and most unbiased x-ray assessment we can get from the ‘B’ reader consensus process.” Coal industry representatives and union representatives52 testified before the House’s Labor and Industry committee concerning the need for independent medical evaluations and the desire to prevent a return to the “battle of the experts” situation that formerly dominated the administrative process. And this Court has recognized that “the apparent purpose of KRS 342.794(1) and the second level of the consensus procedure set forth in KRS 342.316(3)(b)4e is to provide the ALJ with additional evidence from three “B” readers who are unbiased.”53

*478The consensus process also advances a legitimate state interest in the prompt and efficient processing of benefits applications. Claims based on coal-related pneu-moconiosis account for approximately 44 percent of all occupational disease claims filed during the ten-year period from fiscal year 1999-2000 through 2009-2010 and approximately 42 percent in fiscal year 2000-2001, which immediately precedéd the 2002 General Assembly.54 Occupational disease applicants seeking benefits under KRS 342.870 must prove their disease produces a permanent impairment rating. Only some of those seeking benefits under KRS 342.732 must do so.55 So use of the consensus process expedites the processing of coal-related pneumoconiosis claims by limiting university evaluations to those claims in which the worker has been found to suffer from the disease and alleges respiratory impairment.56 It also saves employers the expense and saves workers the inconvenience of travel and of undergoing the evaluation unless the disease is found to be present.57 In addition, KRS 342.316(3) limits the record in coal-related pneumoconiosis claims to evidence that is relevant to diagnosing the presence of the disease until such time as other evidence becomes relevant.

The majority asserts the consensus process and the clear and convincing eviden-tiary burden cannot “be justified as [] cost-saving measure[s], as it is axiomatic that, if the enhanced procedure saves money, the state would save more money by subjecting all occupational pneumoconiosis claimants to the more exacting procedure and higher rebuttable standard.” It is a poor argument to say the consensus procedure is not rationally related to promoting unbiased medical diagnoses or prompt and efficient processing of coal-related pneu-moconiosis claims simply because the procedure would also advance those goals if applied to all pneumoconiosis claims. The majority’s analysis is flawed here for two reasons.

First, there is a heightened need for accuracy and efficiency for coal-related pneumoconiosis claims because of the sheer number of coal-related pneumoconio-sis claims and the special benefits available to the claimants. KRS 342.732 provides different benefits for employees suffering from coal-related pneumoconiosis than employees suffering from other types of pneumoconiosis enjoy, some of which require no proof of a permanent impairment rating. KRS 342.732(l)(a) entitles those who suffer from category 1 coal workers’ pneumoconiosis to a “retraining incentive *479benefit” (RIB) without requiring proof that the condition produces a permanent impairment rating. Other subsections of KRS 342.732(1) presume a particular level of disability based on the disease category and respiratory impairment. And KRS 342.732(( )(a)7 entitles workers who are at least 57 years old on the date of last exposure to elect to receive, in lieu of a RIB, up to 425 weeks of benefits based on a 25 percent disability rating without proving a permanent impairment rating due to pneumoconiosis.

In contrast, KRS 342.730(1) bases the entitlement to partial disability benefits for other forms of pneumoconiosis on the permanent impairment rating the condition produces, a corresponding statutory factor, and various multipliers. It bases a finding of permanent total disability on proof of a permanent impairment rating and a permanent and complete inability to work.58 And it does not provide for retraining benefits. Because coal workers receive special benefits, the legislature rationally believed that a “more exacting procedure” and a “higher rebuttable standard” were necessary to ensure accuracy and efficiency*

Second, the legislature need not tackle all problems in the workers’ compensation system at once. It is unprecedented and unfair for this Court to quibble that because the consensus procedure and the clear and convincing standard for rebuttal would be equally effective in promoting efficiency and accuracy across the board, the legislature must use the procedure for all pneumoconiosis claims or not at all.

The Equal Protection Clause allows the State to regulate one step at a time, addressing itself to the phase of the problem which seems most acute. The State need not run the risk of losing an entire remedial scheme simply because it failed, through inadvertence or otherwise, to cover every evil that might conceivably have been attacked.59

The 2002 General Assembly impliedly viewed the problems with coal-related pneumoconiosis claims as the Commonwealth’s most pressing occupational disease issue at that time. This can be logically attributed to the fact that nearly half (42 percent) of all occupational disease claims filed in fiscal year 2000-2001 were based on coal-related pneumoconiosis.60 “If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’”61 It is enough that the consensus procedure is rationally related to the legitimate government objectives of accurate, prompt, and efficient processing of coal-related pneumoconiosis claims.

B. The Clear and Convincing Standard for Rebuttal.

Contrary to the majority opinion, less than three years ago a majority of this Court held in Durham v. Peabody Coal Co.62 that KRS 342.316(13) may appear to be discriminatory but does not actually impose a greater burden of proof on coal *480workers who claim benefits under KRS 342.732. Quoting from Fitch v. Burns,63 we explained in Durham that “the concept of clear and convincing evidence ‘relates more than anything else to an attitude or approach to weighing the evidence’ and refers to ‘evidence substantially more persuasive than a preponderance of the evidence, but not beyond a reasonable doubt.’ ”64

All workers seeking benefits under Chapter 342 bear the burden of proof and risk of non-persuasion.65 To meet that burden, a worker must go forward with substantial evidence of every element of the claim, ie., evidence sufficient to convince reasonable people.66 When met with equally convincing evidence, the worker must offer more persuasive evidence in rebuttal or lose the claim. We concluded in Durham that KRS 342.316(13)’s use of the term “clear and convincing evidence” acknowledges that reality and “imposes no greater burden than is placed on any other worker whose evidence is met with very persuasive contrary evidence.”67 Despite the majority’s attempt to distinguish Durham, the majority opinion today unquestionably overrules this recent opinion of the Court.68

Even viewing the clear and convincing rebuttal standard as more burdensome, it is rationally related to the legitimate government interest in accurate findings of coal-related pneumoconiosis. Like KRS 342.315(2), applicable to non-coal-related pneumoconiosis claims, KRS 342.316(13) creates a rebuttable presumption that the opinions of certain highly-skilled and unbiased medical experts are accurate concerning the existence and severity of an occupational disease. Unlike KRS 345.315(2), KRS 342.316(13) bases the presumption on the fact that a consensus panel consists of three physicians who are “B” readers, licensed in Kentucky, and hired by the commissioner and the fact that at least two panel members reach a consensus.69 The claimant must offer clear and convincing evidence to overcome this presumption.

The legislature could have rationally believed the consensus of such experts would provide an accurate and unbiased assessment of the worker’s condition that would assist the ALJ in weighing the conflicting evidence. And it is reasonable to presume that a consensus x-ray interpretation reflects the worker’s condition accurately and is probably more accurate than a conflicting interpretation performed by a “B” reader hired by a party. In other words, a panel consensus is highly persuasive evidence that may only be rebutted by even more persuasive evidence.

*481In light of the consensus panel of “B” readers, which provides more accurate, unbiased, and persuasive medical diagnoses, and our recent holding in Durham, it is rational to require claimants to produce clear and convincing evidence to overcome the expert panel’s consensus.

II. EQUAL PROTECTION ANALYSIS DOES NOT REQUIRE A SCIENTIFIC DISTINCTION BETWEEN COAL-RELATED PNEUMOCONIOSIS AND OTHER FORMS OF THE DISEASE.

The majority bases its opinion largely on the fact that coal-related pneumoconiosis is scientifically identical to pneumoconiosis from other dust sources. In stating that “there is no ‘natural’ or ‘real’ distinction between coal workers’ pneumoconiosis and other forms of pneumoconiosis,” the majority employs the wrong constitutional test and relies on the dissenting opinion in Kentucky Harlan Coal Co. v. Holmes.70 Whether a natural or real distinction exists to support a classification determines whether a statute is ‘special legislation’ in violation of Section 59 of the Kentucky Constitution, not whether it violates Equal Protection guarantees.

In Holmes, a coal company challenged the constitutionality of a statute in effect before the 1996 overhaul of workers’ compensation, providing income benefits for coal-related pneumoconiosis based on x-ray evidence and creating an irrebuttable presumption that a claimant is totally disabled based on x-ray classifications.71 The coal company claimed the statute was ‘special legislation’ because it favored coal workers. “[I]n order for a law to be general [rather than ‘special’] in its constitutional sense it must meet the following requirements: (1) it must apply equally to all in a class, and (2) there must be distinctive and natural reasons inducing and supporting the classification.”72 While the majority here cites the dissenting opinion in Holmes to refer to ‘natural’ distinctions in a scientific sense, the majority of the court in Holmes made clear that “the classification ... must be based upon some reasonable and substantial difference in kind, situation or circumstance which bears a proper relation to the purpose of the statute.”73

And contrary to the majority’s current finding, the Holmes court held that “distinctive and natural reasons [exist] for classifying [coal workers who have contracted pneumoconiosis] from workers in other industries who have also contracted pneumoconiosis.”74 The Court found that the 1987 statute was part óf a comprehensive overhaul of the Kentucky Workers’ Compensation Act in response to the burden of coal-related workers’ compensation claims on the Special Fund.75 The legislature responded to the concern, in part, by “incorporating medical realities into both the standards for the admissibility of evidence for claims involving coal workers’ pneumoconiosis (KRS 342.316), [and] the standards of proof for the various levels of benefits set forth in the newly-enacted KRS 342.732.”76 Despite the fact that no scientific difference exists between coal-related pneumoconiosis and other forms of the disease, the Court held that the claims could be treated differently because of the sheer number of coal-related pneumoconio-*482sis claims and their economic impact on the Special Fund.77

Similar reasons uphold the current workers’ compensation scheme against the Equal Protection claims here. The sheer number of coal-related pneumoconiosis claims necessitates an efficient and prompt processing method. And the mere fact that “pneumoconiosis is pneumoconiosis is pneumoconiosis” does not prohibit the legislature from tailoring its actions to address the differing needs of the Commonwealth’s claimants, industries, and the workers’ compensation structure itself. By holding otherwise, the majority overrules yet another decision of this Court.

III. THE LEGISLATURE CAN REQUIRE THE CONSENSUS PROCESS AND THE CLEAR AND CONVINCING REBUTTAL STANDARD BECAUSE COAL WORKERS RECEIVE SPECIAL BENEFITS.

The legislature can require the consensus procedure and the clear and convincing rebuttal standard for coal-related pneumo-coniosis claims because coal workers receive special benefits. As discussed above, coal workers with pneumoconiosis receive special retraining benefits without proving permanent impairment. In contrast, employees with other forms of pneumoconio-sis may not receive retraining benefits and must prove impairment to receive income benefits.

The Holmes court addressed a similar argument from the coal company that a presumption of occupational disability unconstitutionally benefited coal workers, unlike employees in other industries. The court found,

The mere fact that the legislative treatment of coal workers’ pneumoconiosis is different from that of other occupational pneumoconioses does not make it arbitrary or unfair to either group. Workers with coal workers’ pneumoconiosis are entitled to a presumption of occupational disability based on the medical criteria of the various subsections of KRS 342.732, but their standards for admissible medical evidence are more stringent and they are required to meet a minimum exposure requirement before they may receive benefits .... Workers with other occupational pneu-moconioses are not subject to the stringent medical proof requirements or minimum exposure requirements, but are required to prove the degree to which their disease has caused them to be occupationally disabled.78

Likewise, the differing statutory treatment of coal-related pneumoconiosis claims and other pneumoconiosis claims does not render the statutes arbitrary or unfair, or deny coal workers Equal Protection. Because coal workers with pneumoconiosis receive special retraining benefits without proving permanent impairment, the legislature is entitled to require different medical procedures and more stringent standards of proof. When the benefits, for a class of workers differ from other classes, the burdens may also differ. The majority’s contrary reasoning again overrules our holding in Holmes.

Other courts have also found that entitlement to special benefits defeats Equal Protection claims. The Federal Circuit Court of Appeals held that because one group received special benefits they were not similarly situated to other groups, rendering the Equal Protection guarantee inapplicable.79

*483And this Court has held that a statute “may be upheld over an [Ejqual [Protection argument when a party is caused to bear a different economic burden or enjoys a different economic benefit.”80 Similarly, coal workers may be required to undergo the consensus procedure and present clear and convincing rebuttal evidence because they receive special retraining benefits.

IV. THE 2002 AMENDMENTS TO CHAPTER 342 WERE NOT ENACTED OUT OF A DESIRE TO HARM A POLITICALLY UNPOPULAR GROUP.

The majority erroneously supports its decision with City of Cleburne, Texas v. Cleburne Living Center.81 Cleburne dealt with a state requirement that homes for the mentally disabled obtain a special use permit.82 The federal Court of Appeals for the Fifth Circuit decided the mentally handicapped constitute a quasi-suspect class requiring intermediate scrutiny under the Equal Protection Clause.83 The Supreme Court disagreed, finding that the rational basis test applied. But the Supreme Court held that the government did not achieve a legitimate interest by requiring homes for the mentally disabled to apply for a special permit.84 Rather, the requirement was based largely on the fears and biases of the community.85 The Court stated, “some objectives — such as a bare [ ] desire to harm a politically unpopular group[] — are. not legitimate state interests.” 86

Cleburne spurred a debate about whether a more stringent rational basis review applied to classifications of politically unpopular groups.87 Justice O’Connor stated in a later concurring opinion that “[w]hen a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.”88 Even if Cleburne is read as using the traditional rational basis test, the City of Cleburne could not name a single legitimate reason to require homes for the mentally handicapped to apply for a special use permit when other types of homes did not have to do so. Rather, the legislation was based in the fears and biases of the community.

In sharp contrast, Kentucky coal workers have enjoyed enormous political support in the General Assembly. It is clear from legislative history that the 2002 General Assembly intended the amendments to Chapter 342 to benefit coal miners rather than harm them. The legislators who spoke on the subject during the 2002 session maintained that the 1996 overhaul of *484the workers’ compensation scheme unintentionally restricted the number of successful coal-related pneumoconiosis claims. These new amendments were meant to liberalize the process and allow coal miners who actually suffered from pneumoco-niosis to receive benefits more efficiently. So the legislature decided to provide retraining benefits without making coal miners prove permanent impairment. Along with these special benefits came the need to ensure more accurate and affordable medical diagnoses, which the legislature sought to achieve by requiring the consensus procedure and the clear and convincing burden of proof.

Y. THE COURT MUST NOT INVADE THE PROVINCE OF THE LEGISLATURE.

The majority erroneously “rejedfe] any contention that the two-step procedure promotes prompt and efficient processing of coal mining pneumoconiosis cases, as an additional step presents nothing more than another formidable hurdle for the’ coal worker before he or she can receive compensation.” Whether or not the 2002 amendments achieved the legislature’s objectives is not for the courts to decide. Arguably, the consensus procedure and the clear and convincing evidentiary burden have made it more difficult, or as difficult, for coal workers to prove they suffer from pneumoconiosis than before the 2002 amendments. But this does not authorize the judicial branch to usurp the policy-making role of the elected legislators under the guise of Equal Protection analysis. “[I]t is up to legislatures, not courts, to decide on the wisdom and utility of legislation.”89 And “the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes.”90 Because the legislature could have rationally believed the consensus procedure would ensure prompt and efficient processing of coal-related pneumoconiosis claims, the Equal Protection challenge must fail.

For similar reasons, I cannot agree with Justice Schroder’s opinion concurring, in part, and dissenting, in part. The legislature is constitutionally permitted to require a different procedure and standard of proof for coal-related pneumoconiosis claims. A requirement from this Court that coal workers be allowed to pursue both statutory paths to workers’ compensation benefits is a policy choice that impinges upon the legislative prerogative. And rather than providing Equal Protection under the law, allowing both statutory paths to coal workers would give coal workers greater than Equal Protection under the law.91

VI. CONCLUSION.

The majority’s opinion runs contrary to well-established precedent and overturns this Court’s recent decisions in Durham and Holmes. Because the legislature could have rationally believed the consen*485sus procedure and the clear and convincing evidentiary burden would ensure unbiased, prompt, and efficient processing of coal-related pneumoconiosis claims, I would find that KRS 342.316(B) and (13) do not violate the federal or state Equal Protection guarantee. Therefore, I must respectfully dissent.

ABRAMSON, J., joins.

. Kimel v. Florida Board of Regents, 528 U.S. 62, 84, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) (citation omitted),

. Gregory v. Ashcroft, 501 U.S. 452, 471, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) (citations omitted).

. Romer v. Evans, 517 U.S. 620, 632, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (citations omitted).

. Durham v. Peabody Coal Co., 272 S.W.3d 192, 195 (Ky.2008) (citations omitted).

. Id.

. Id. (citations omitted).

. Commonwealth v. Howard, 969 S.W.2d 700, 705 (Ky.1998).

. I note that it is not necessary to prove that the legislature actually considered the legitimate reasons proposed for the rational basis test. It is enough that the Court can conceive of legitimate reasons. See F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 315, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993) ("[B]e-cause we never require a legislature to articulate its reasons for enacting a statute, it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature.”) (citations omitted).

. Kimel, 528 U.S. at 84, 120 S.Ct. 631 (citations omitted).

. Specifically, the legislative committee heard from a representative of Union Coal Miners and the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), a federation of 57 national and international labor unions. http://www.aflcio. org/aboutus/ (verified on November 30, 2011).

. Hunter Excavating v. Bartrum, 168 S.W.3d 381, 385 (Ky.2005).

. See 2009-2010 Kentucky Department Of Workers' Claims Ann. Rep. 11. The report indicates that 3,279 coal workers’ pneumoco-niosis claims and 4,245 other occupational disease claims (including claims for other occupational pneumoconioses) were filed during the previous ten-year period. The report does not specify the number of claims based on other occupational pneumoconioses, http:// www.labor.ky.gov/workersclaims/Periodic %20Reports/Annual%20Report%202009-2010.pdf (verified December 5, 2011).

. Employees seeking income benefits under KRS 342.732 must prove pulmonary dysfunction.

. Durham, 272 S.W.3d at 196 (noting the present statutes "attempt to control the cost of coal workers’ pneumoconiosis claims, particularly by workers with no significant respiratory impairment.”).

. The commissioner’s July 1, 2003, report to the Interim Joint Committee on Labor and Industry indicates that "B” readers were paid $100.00 per x-ray interpretation and that seven Kentucky "B" readers were located in eastern Kentucky, one in Owensboro, and seven in Lexington or Louisville. For university evaluations, employees must travel to the University of Louisville or University of Kentucky medical schools.

. See Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (2000).

. Clements v. Fashing, 457 U.S. 957, 969-70, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982) (internal quotations and citations omitted).

. See 2009-2010 Kentucky Department Of Workers' Claims Ann. Rep. 11.

. Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970) (citations omitted).

. 272 S.W.3d 192, 196 (Ky.2008).

. 782 S.W.2d 618, 622 (Ky.1989).

. Durham, 272 S.W.3d at 196-97.

. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky.App.1984); Snawder v. Stice, 576 S.W.2d 276 (Ky.App.1979); Young v. Burgett, 483 S.W.2d 450 (Ky.1972); Roark v. Alva Coal Corp., 371 S.W.2d 856 (Ky.1963).

. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky.1986); See also Smyzer v. B.F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky.1971).

. Durham, 272 S.W.3d at 196-97.

. The majority attempts to distinguish the case, citing the fact that coal workers in Durham challenged the disparate treatment between coal-related pneumoconiosis claims and workers' compensation claims for traumatic injuries; not the classification between coal and non-coal pneumoconiosis claims. But this difference does not affect the holding in Durham that KRS 342.315(13) "imposes no greater burden than on any other worker whose evidence is met with very persuasive contrary evidence.” Id. at 197.

.When there is no consensus, KRS 342.316(3)(b)4e directs the AU to decide the claim based on the evidence submitted.

. 872 S.W.2d 446 (K.y.1994).

. Id.

. Id. at 452 (emphasis added).

. Id. (emphasis added).

. Id. at 453.

. Id. at 452.

. Id. at 453.

. Id.

. Id. (emphasis added).

. Absher v. United States, 805 F.2d 1025, 1026-27 (Fed.Cir.Ct.App.1986) ("The Claims Court, of course, took the position that '[t]he *483special benefits accorded retirees of the uniformed services are such that this class of individuals is not situated similarly to other groups that are not required to waive retirement pay to receive tax-free VA benefits.’ .... We do not therefore discern error in the legal conclusion of the Claims Court.”).

. Stephens v. State Farm Mut. Auto. Ins. Co., 894 S.W.2d 624, 627 (Ky.1995).

. 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985).

. Id. at 436, 105 S.Ct. 3249.

. Id. at 437-38, 105 S.Ct. 3249. The intermediate scrutiny test requires that govemment action is substantially, related to an important government interest.

. Id. at 450, 105 S.Ct. 3249.

. Id.

. Id. at 446-47, 105 S.Ct. 3249 (internal quotations and citations omitted).

. See Powers v. Harris, 379 F.3d 1208 (10th Cir.2004) (discussing whether Cleburne changed the rational basis test).

. Lawrence v. Texas, 539 U.S. 558, 580, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (concurring in part) (emphasis added).

. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 469, 101 S.Ct. 715, 66 L.Ed.2d 659 (1981) (quotations and citations omitted).

. Cleburne, 473 U.S. at 440, 105 S.Ct. 3249.

. See Desris v. City of Kenosha, Wis., 687 F.2d 1117, 1120 (7th Cir.1982) (“Simply stated, the plaintiffs claim that they are entitled, to retire at the same age as s 62.13 pensioners but at the higher WRF benefit level. The plaintiffs’ claim of entitlement to one beneficial portion or aspect of the s 62.13 pension plan is not a claim for [EJqual [Protection of the law but rather more properly should be designated as a claim for greater protection under the law.”).