RENDERED: JULY 8, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0364-WC
AARON DAVIS APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NOS. WC-16-80953 AND WC-18-00206
CENTRAL BRIDGE; DANIEL
CAMERON, KENTUCKY
ATTORNEY GENERAL;
HONORABLE JOHN H.
MCCRACKEN, ADMINISTRATIVE
LAW JUDGE; AND KENTUCKY
WORKERS’ COMPENSATION
BOARD APPELLEES
OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.
CLAYTON, CHIEF JUDGE: Aaron Davis (“Davis”) appeals from an opinion of
the Workers’ Compensation Board (the “Board”) affirming the benefits awarded
by the Administrative Law Judge (“ALJ”). As the Kentucky Supreme Court has
recently rejected the constitutional challenges posited by Davis in this appeal, we
affirm the Board’s opinion.
FACTUAL AND PROCEDURAL HISTORY
Davis was struck in the head with a sledgehammer by his supervisor
on May 26, 2016, while working as a laborer for Central Bridge. Davis received
treatment for his injuries and brought a claim under the Workers’ Compensation
Act. On January 14, 2019, the ALJ found Davis permanently totally disabled.
Accordingly, the ALJ awarded Davis permanent total disability and medical
benefits.
Davis appealed the ALJ’s order to the Board, arguing that the 2018
amendment to Kentucky Revised Statute (“KRS”) 342.730(4), terminating his
benefits at the age of 70, as well as its retroactive application, were
unconstitutional. On February 14, 2020, the Board affirmed the ALJ’s order,
holding that Davis had failed to properly preserve his constitutional argument as he
had failed to provide the Attorney General with the required notice pursuant to
KRS 418.075. Even if Davis had preserved the issue, the Board stated that it was
without jurisdiction to decide the statute’s constitutionality. This petition for
review followed.
However, at the request of the Kentucky Attorney General, this Court
held the matter in abeyance pending decisions of the Kentucky Supreme Court in
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Cates v. Kroger, 627 S.W.3d 864 (Ky. 2021), and Dowell v. Matthew’s
Contracting, 627 S.W.3d 890 (Ky. 2021). Following the rendition of those
opinions, the Court permitted the parties additional time to file supplemental briefs.
While supplemental briefs were filed on behalf of Central Bridge and the Attorney
General, no additional materials were filed on behalf of Davis.
ANALYSIS
a. Standard of Review
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).
b. Discussion
On appeal, Davis argues that the ALJ erred in finding that his award
was subject to the current version of KRS 342.730(4) by applying it retroactively,
as doing so violated the Contracts Clause of the United States and Kentucky
Constitutions and constituted an exercise of arbitrary power. In addition, he
argued that the ALJ erred in finding he had not preserved his arguments.
Alternatively, Central Bridge and the Attorney General argue that the ALJ
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correctly applied the current version of KRS 342.730(4) to Davis’s award based on
the relevant caselaw.
As amended on July 14, 2018, KRS 342.730(4) provides:
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.
In Holcim v. Swinford, the Supreme Court established that the amended version of
KRS 342.730(4), regarding the termination of benefits at age seventy (70), applied
retroactively to all claims not fully adjudicated before July 14, 2018. 581 S.W.3d
37, 44 (Ky. 2019).
Additionally, as previously discussed, while this petition for review
was pending, the Kentucky Supreme Court rendered two other opinions addressing
the current version of KRS 342.730(4). In Cates, the Kentucky Supreme Court
rejected the argument that retroactive application of the amended version of KRS
342.730(4) violated the Equal Protection Clauses of the Kentucky and United
States Constitutions or created an arbitrary class of litigants. 627 S.W.3d at 871-72
(footnotes omitted). Similarly, the Court in Dowell rejected the argument that the
retroactive application of the amended version of KRS 342.730(4) violated the
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Contracts Clauses of the Kentucky and United States Constitutions. 627 S.W.3d at
898.
The decisions in Holcim, Cates, and Dowell are binding precedent and
directly apply to the issues Davis raises in this appeal. This Court must follow
such applicable precedent 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.”).
Accordingly, because Davis’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. Based on our holding, we need not address the preservation issue.
CONCLUSION
For the foregoing reasons, we affirm the Board’s opinion.
ALL CONCUR.
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BRIEF FOR APPELLANT: BRIEFS FOR APPELLEE CENTRAL
BRIDGE:
Stephanie N. Wolfinbarger
Louisville, Kentucky Ward Ballerstedt
Lyn Douglas Powers
Louisville, Kentucky
BRIEF FOR APPELLEE DANIEL
CAMERON, ATTORNEY
GENERAL:
Matthew F. Kuhn
Brett R. Nolan
Alexander Y. Magera
Frankfort, Kentucky
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