RENDERED: APRIL 29, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0324-WC
FLOYD METCALF APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-17-01543
ADVANCED PAVING &
CONSTRUCTION; HONORABLE W.
GREG HARVEY, ADMINISTRATIVE
LAW JUDGE; HONORABLE DANIEL
CAMERON, ATTORNEY GENERAL
OF KENTUCKY; AND WORKERS’
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT, MCNEILL, AND TAYLOR, JUDGES.
LAMBERT, JUDGE: Floyd Metcalf has petitioned this Court for review of the
February 26, 2021, opinion of the Workers’ Compensation Board (the Board)
affirming the September 16, 2020, opinion, award, and order by the Administrative
Law Judge (ALJ) on remand finding that the current (2018) version of Kentucky
Revised Statutes (KRS) 342.730(4) retroactively applied to his award of disability
benefits. We affirm.
This matter has previously been before the Court of Appeals, and we
shall rely upon the prior opinion for our discussion of the underlying facts and
procedural history:
Metcalf began his employment with Advanced in
2012, and primarily operated heavy machinery in his job
duties. His prior work history was similar in that he had
worked in maintenance and/or construction most of his
life. On or about November 9, 2016, Metcalf was on a
jobsite operating a backhoe with a hoe-ram attached
when a piece of rock hit him in the right eye. He was
fifty-one years old at the time of the accident. Although
he has had four surgeries since the accident, he suffers a
near total loss of vision in his right eye. Metcalf had
previously sustained an injury to his left eye at age
twelve, which left him blind in that eye. The left eye was
replaced with a prosthetic in 2012, prior to his
employment with Advanced.
The parties stipulated to the impairment ratings
assigned to Metcalf by Dr. Richard Eiferman. Metcalf
suffers from 96% whole person impairment due to a near
total loss of vision in both eyes. Dr. Eiferman attributed
20% of the impairment to the loss of Metcalf’s vision in
his left eye in 1977, at age twelve. The remaining 76%
impairment is attributable to the November 9, 2016
injury.
The ALJ found that Metcalf is permanently and
totally disabled after performing a five-step analysis
pursuant to City of Ashland v. Stumbo, 461 S.W.3d 392,
396-97 (Ky. 2015). Although 20% of the impairment
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resulted from Metcalf’s prior injury at age twelve, the
ALJ was not persuaded that Metcalf suffered any
occupational disability from the childhood injury because
he worked for Advanced without any restrictions prior to
the November 9, 2016 accident.
The ALJ ordered that Metcalf shall receive
permanent total disability benefits (PTD) on a weekly
basis “for so long as he remains disabled, subject to the
tier down provision in the 1994 version of KRS
342.730(4).” The parties filed petitions for
reconsideration. Metcalf argued that, because the
Kentucky Supreme Court had recently held the then-
current version of KRS 342.730(4) unconstitutional,
neither the current nor former version of the subsection
applied. See Parker v. Webster County Coal, LLC
(Dotiki Mine), 529 S.W.3d 759, 767 (Ky. 2017). In
short, Metcalf argued that he is entitled to receive full
PTD for the remainder of his natural life. For its part,
Advanced argued that Metcalf was not permanently and
totally disabled as a result of the November 9, 2016
accident. The ALJ entered an order denying both
petitions. Both parties appealed to the Board. The Board
affirmed in part, but vacated and remanded the portion of
the ALJ’s decision regarding KRS 342.730(4), noting
that
the ALJ did not err in applying the tier-down
provision contained in the pre-1996 version
of KRS 342.730(4) when he decided the
claim. However, effective July 14, 2018,
the amended version of KRS 342.730(4) is
applicable to this claim. This recent
statutory change sets forth that income
benefits awarded to Metcalf terminate at age
seventy. Therefore, we must vacate and
remand this claim to the ALJ for a
determination regarding the termination of
Metcalf’s award.
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The parties now appeal to this Court. Advanced
argues that Metcalf is not permanently and totally
disabled as a result of the November 9, 2016 accident,
and that the ALJ is required to carve-out the award of
benefits to account for “the combined effects of pre-
existing, non-work-related impairment and work-related
impairment.” Metcalf argues the ALJ erred by applying
the pre-1996 version of KRS 342.730(4) and, similarly,
the Board erred in remanding the case to the ALJ for a
determination of benefits pursuant to the version of KRS
342.730(4) effective July 14, 2018 (i.e., the current
version). He argues that he is entitled to lifetime
benefits.
Advanced Paving & Construction v. Metcalf, No. 2018-CA-001196-WC, 2020 WL
1490770, at *1-2 (Ky. App. Mar. 27, 2020). The Court found no error in the
arguments raised by Advanced Paving in its petition. See id. at *4, *6.
We then addressed the issue Metcalf raised in his petition, namely, the
application of KRS 342.730(4) to his award of benefits. Based on the Supreme
Court of Kentucky’s holding in Holcim v. Swinford, 581 S.W.3d 37 (Ky. 2019),
that the 2018 amendment to KRS 342.730(4) had retroactive application, this Court
agreed with the Board that it was proper to vacate and remand Metcalf’s permanent
total disability award to comply with that version. The ALJ had subjected
Metcalf’s award to a tier-down provision. Metcalf, 2020 WL 1490770, at *7. The
record reflects that Metcalf attempted to appeal this decision to the Supreme Court,
but the notice of appeal was untimely filed.
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The matter was remanded to the ALJ, who entered an amended
opinion, award, and order on September 16, 2020. The award of PTD benefits was
noted to be subject to the current version of KRS 342.730(4), which “requires
termination of those benefits at age 70.” Metcalf appealed this amended award to
the Board, arguing that the ALJ erred in finding that the current version of KRS
342.730(4) had retroactive application and that retroactive application violated the
Contracts Clause of the United States and Kentucky Constitutions and was an
exercise of arbitrary power in contravention of Section 2 of the Kentucky
Constitution. Advanced Paving argued that Metcalf’s appeal was barred by the
law of the case doctrine and that the retroactive application of KRS 342.730(4) was
not unconstitutional. The Board entered its opinion on February 26, 2021,
affirming the ALJ’s amended award on remand. The Board rejected Advanced
Paving’s argument that the law of the case doctrine applied, noting that this Court
“previously declined to render a decision on the issue of constitutionality.” The
Board noted that it did not have jurisdiction to address Metcalf’s constitutional
arguments. It ultimately held that the ALJ properly applied KRS 342.730(4)
retroactively to Metcalf’s award of PTD benefits and therefore affirmed the
decision. This petition for review now follows.
In his petition, Metcalf argues, as he did before the Board, that the
ALJ erred in finding that the current version of KRS 342.730(4) was to be applied
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retroactively and that retroactive application of the current version violated the
Contracts Clause of the United States and Kentucky Constitutions and constituted
an exercise of arbitrary power. Advanced Paving continues to argue that the law of
the case doctrine applies to prevent Metcalf from raising these arguments1 and that
retroactive application of the current version of the statute was not
unconstitutional.
This Court’s standard of review in workers’ compensation appeals is
well-settled in the Commonwealth. “The function of further review of the [Board]
in the Court of Appeals is to correct the Board only where the Court perceives the
Board has overlooked or misconstrued controlling statutes or precedent, or
committed an error in assessing the evidence so flagrant as to cause gross
injustice.” Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
While this petition was pending, the Supreme Court rendered two
opinions addressing the current version of KRS 342.730(4). In Cates v. Kroger,
627 S.W.3d 864 (Ky. 2021), and Dowell v. Matthews Contracting, 627 S.W.3d 890
(Ky. 2021), the Supreme Court upheld the constitutionality of the current version
and its retroactive application as we shall discuss below.
In Cates, the Supreme Court set forth the legislative and legal history
of the amendments to KRS 342.730(4) to provide a context to its analysis:
1
We reject this argument for the reasons set forth in the Board’s opinion.
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Before we undertake our analysis, we review for
context two of our recent holdings addressing the
General Assembly’s efforts to establish an outer limit on
the receipt of workers’ compensation income benefits. In
Parker v. Webster County Coal, LLC, a majority of this
Court invalidated the 1996 version of KRS 342.730(4).
That statute read:
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 last
exposure, whichever last occurs.
The majority in Parker found the statute
unconstitutional for two reasons: (1) the statute created
an arbitrary classification because the benefit cut-off date
was dependent upon when the recipient received old-age
social security benefits and (2) the statute was special
legislation because it favored those who would not
receive old-age social security benefits and disfavored
those who would receive such benefits. Importantly,
even though Parker invalidated the 1996 version of the
statute, it reaffirmed this Court’s prior precedent in which
we consistently held that treating older injured workers
differently from younger injured workers is rationally
related to the legitimate government interests in
preventing a duplication of benefits and saving money
for the workers’ compensation system. We said in
Parker,
The rational bases for treating younger and
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
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on their age, have qualified for normal
Social Security retirement benefits
differently from those who, based on their
age, have yet to do so.
[Parker, 529 S.W.3d at 768.]
Shortly after our holding in Parker, the General
Assembly in 2018 enacted a new version of KRS
342.730(4) to read:
All income benefits payable pursuant to this
chapter shall terminate as of the date upon
which the employee reaches the age of
seventy (70), or four (4) years after the
employee’s injury or last exposure,
whichever last occurs. In like manner all
income benefits payable pursuant to this
chapter to spouses and dependents shall
terminate as of the date upon which the
employee would have reached age seventy
(70) or four (4) years after the employee’s
date of injury or date of last exposure,
whichever last occurs.
This change purported to rectify the shortcomings
of the 1996 version as identified in Parker by untethering
the cessation of a claimant’s workers’ compensation
income benefits from the receipt of old-age social
security retirement benefits, a benefit that Parker
identified as not available to Kentucky’s retired teachers.
The new statute now limits the duration of benefits by
linking cessation for all income beneficiaries to the later
of two events (1) reaching age 70, or (2) four years after
injury or last injurious exposure.
In Holcim v. Swinford we addressed retroactive
application of the 2018 amendment. While not explicitly
stated in the statute as codified, we found a clear
legislative intent that the amendment apply retroactively
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to all claims where (1) the injury occurred after
December 1997 and (2) has not been fully and finally
adjudicated through the appellate process, or for which
time to file an appeal has not lapsed, as of the effective
date of the Act, July 14, 2018. We declined to address
the constitutionality of its effect, or the constitutionality
of the amendment’s text because those issued were not
argued until after the Court of Appeals had rendered its
opinion. The cases at hand now present the issue
remaining after Holcim, which is the constitutionality of
the amendment and its retroactive application.
Cates, 627 S.W.3d at 868-70 (footnotes omitted).
The Cates Court first held that the 2018 amendment to KRS
342.730(4) did not violate the Equal Protection Clause under either the 14th
Amendment to the United States Constitution or Sections 1, 2, and 3 of the
Kentucky Constitution:
[W]e find the 2018 amendment classifies recipients based
only on age, entirely unrelated to their old-age social-
security eligibility. This age classification prevents a
duplication of benefits, which we have found, to be a
legitimate state interest and applies to all those receiving
workers’ compensation equally. So the current version
of KRS 342.730(4) is not violative of the Equal
Protection Clause because the age classification is
rationally related to a legitimate state purpose.
Cates, 627 S.W.3d at 871. The Court then held that the retroactive application of
the 2018 amendment to KRS 342.730(4) did not create an arbitrary class of
litigants:
We find here no arbitrary exercise of legislative
authority in the retroactive application of the amendment.
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After Parker, the General Assembly acted swiftly to
amend the statute to fill the statutory gap with
constitutional norms. The legislature “may amend the
law and make the change applicable to pending cases,
even when the amendment is outcome determinative.”
Because the 1996 version had been invalidated and a new
version enacted, the General Assembly was left to decide
if pending claims would be governed by the 1994 version
of the statute – a statute that had not been in effect for
over 20 years – or to allow for current claims to be
decided under the new amendment. The legislative body
apparently chose the latter, and that choice was its
prerogative.
Id. at 871-72 (footnotes omitted).
In Dowell, the Supreme Court addressed whether the 2018
amendment to KRS 342.730(4) violated the federal and state Contracts Clause.
Adams and Dowell both argue that applying the
current version of KRS 342.730(4) to their claims
violates the Contracts Clause of both the United States
and Kentucky Constitution. Article 1, Section 10, Clause
[1] of the United States Constitution reads:
No State shall enter into any Treaty,
Alliance, or Confederation; grant Letters of
Marque and Reprisal; coin Money; emit
Bills of Credit; make any Thing but gold and
silver Coin a Tender in Payment of Debts;
pass any Bill of Attainder, ex post facto
Law, or Law impairing the Obligation of
Contracts, or grant any Title of Nobility.
Similarly, Section 19 of the Kentucky Constitutions
provides, “No ex post facto law, nor any law impairing
the obligation of contracts, shall be enacted.”
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Dowell, 627 S.W.3d at 894. However, the Supreme Court did not perform a
Contracts Clause analysis in this case “because the Workers’ Compensation Act
(WCA) does not constitute a contract between Kentucky workers and their
employers or the state. Instead, the WCA is a statutory scheme that may be
amended as the General Assembly chooses, provided it fits within our
constitutional framework.” Id. at 894-95.
The workers’ compensation system is controlled
by the state and is governed by legislative enactments. It
is not a contract on [sic] between employers and their
employees. Changes to the relevant statutes, therefore,
do not create a Contracts Clause issue. While changes to
statutes may result in other constitutional issues, such as
a violation of due process or constitute special
legislation, a Contracts Clause issue is impossible in this
matter because there is simply no contract or contractual
right for the statutory amendment to impair.
Id. at 896 (footnote omitted).
The Supreme Court then addressed the retroactivity issue in the
context of a claimant’s right to a certain duration or amount of benefits received.
Dowell and Adams argue that applying the new
version of KRS 342.730(4) is unconstitutional because
they have a vested right to the benefits assigned to them
by the ALJ and Workers’ Compensation Board. We
have also briefly addressed this argument in a companion
opinion, also rendered today, Cates v. Kroger. We will
address it here to clarify that litigants like Adams and
Dowell do not have a vested right to certain benefits.
While they have a vested right to some benefits by
statute, they do not have a vested right to “certain”
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benefits until their claim for benefits has been determined
by final order.
A benefits-recipient’s right to compensation
becomes fixed and vests on the date of the injury. The
right to receive benefits is a substantive issue and the
injury date is controlling under substantive law. We have
long held “that where a suit has been instituted under a
statute giving a cause of action and a right to maintain
such action, and once the action has been prosecuted to
final judgment, and the rights of the parties fixed, such
rights then become vested in the judgment, and thereafter
a legislature can pass no law which impairs the validity
of the vested right thus obtained.” So, Dowell and
Adams have a vested, substantive right to litigate their
benefits, a right that cannot be taken away by statutes that
have since come into existence since filing their claim.
But in contrast, their right to a certain duration or amount
of benefits has not vested and will not do so until they
receive a final decision of their claims. So, the 2018
amendment to KRS 342.730(4) “[does] not create new or
take away vested rights” of plaintiffs like Adams and
Dowell, and its retroactive application is constitutional.
Because Adams’s and Dowell’s benefits have not
been completely litigated, their potential awards must
conform with the changes in the applicable law effective
during the litigation process. And in Holcim we found
that the legislature intended the law to apply to all claims
currently pending. So the 2018 amendment applies to
Dowell and Adams even though the only issue left to
litigate is the effect of the 2018 amendment on the
duration of their benefits. While we agree with Adams
that the 2018 amendment impairs his benefits award,
Adams had no vested right in the outcome of his claim
before the ALJ or the Board. As we stated in Martin v.
Warrior Coal, LLC, [671 S.W.3d 391, 397-98 (Ky.
2021),] the legislature intended for the 2018 amendment
of KRS 342.730(4) to apply to all pending appeals, and
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Adams’s appeal was pending when the Court of Appeals
ruled. In fact, the case is still not fully litigated.
Likewise, Dowell’s benefits claim was decided
after we had invalidated the 1996 amendment and the
ALJ and the Board resurrected the 1994 version of the
statute as applicable to Dowell’s claim. By the time
Dowell’s appeal reached the Court of Appeals, the 2018
amendment had become effective, and we had
determined the statute applied retroactively. So Dowell’s
benefits were not final then and are not now. Because
Dowell’s award is still being litigated, we find the 2018
amendment to KRS 342.730([4]) controls.
As we stated in Cates v. Kroger, “we reiterate our
holding in Holcim that the legislature intended for the
new amendment to apply to all pending appeals with
injury dates occurring after December 1996.” We are
bound by the text of the statute and unless it conflicts
with a constitutional provision, we must uphold the laws
the legislature has enacted. Neither Adams nor Dowell
had a vested right to certain benefits, only a right to some
benefits that are to be determined under current law.
Dowell, 627 S.W.3d at 897-98 (footnotes omitted).
The above-cited cases constitute binding authority of the Supreme
Court of Kentucky, which this Court must follow pursuant to Supreme Court Rule
(SCR) 1.030(8)(a) (“The Court of Appeals is bound by and shall follow applicable
precedents established in the opinions of the Supreme Court and its predecessor
court.”). Because Metcalf’s injury occurred after 1996 and his award of benefits is
still being litigated, the 2018 amendment to KRS 342.730(4) controls in this case.
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For the foregoing reasons, the opinion of the Workers’ Compensation
Board affirming the ALJ’s amended award on remand is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE
ADVANCED PAVING &
Wayne C. Daub CONSTRUCTION:
Louisville, Kentucky
Lyn Douglas Powers
Louisville, Kentucky
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