dissenting.
Respectfully, I must dissent.
KRS 342.730(4)1 which requires that workers’ compensation benefits terminate *78when the recipient qualifies for normal old-age social security, violates the United States and Kentucky Constitutions because it denies equal protection of the law to the Commonwealth’s older workers. Furthermore, the changing nature of the federal social security regime demonstrates that the statute’s rationale is not to provide compensation for lost wages.
I. FACTS
This case arises from a Court of Appeals decision affirming the views of both the Workers’ Compensation Board and an Administrative Law Judge that awarded Appellant Barbara McDowell permanent, total disability that would terminate when she reached age 65. Appellant began working for Jackson Energy RECC as a billing clerk and cashier in 1958. Her duties involved the repetitive use of her fingers and hands for 39 years. Eventually she began to experience pain and numbness in her hands that interfered with her work and for which conservative medical treatment was ineffective. Throughout her 39 years of employment, she had an excellent work history. Ultimately, she underwent surgery for bilateral carpel tunnel syndrome in May 1997. Although her hands improved somewhat, she was unable to return to work and filed a workers’ compensation claim. She testified that she had hoped to be able to work until age 62 in order to be eligible for full retirement benefits.
The Administrative Law Judge determined that Appellant had sustained a permanent, total disability as of May 30, 1997, and awarded income benefits to begin on that day and terminate when she reached age 65. The ruling as to termination was based on KRS 342.730(4), as amended effective December 12, 1996. Appellant appealed claiming that the statute was unconstitutional. The Board affirmed the ALJ, as did the Court of Appeals, which upheld the constitutionality of the statute, determining that it provided for an offset of benefits in an amount equal to that of old age social security benefits that the claimant would be entitled to receive on her 65th birthday. Appellant argues that the statute violates Sections 14, 54, and 241 of the Kentucky Constitution by depriving her the right to be fully compensated for her injury. She further argues that the provision violates the Fifth and Fourteenth Amendments to the United States Constitution by taking property from her in violation of her due process right to fair compensation, and in violation of her right to equal protection under the law.
II. STRUCTURE OF THE BENEFITS PROGRAMS
As Professor Larson notes in his workers’ compensation treatise, “[s]ince most social legislation in the United States has appeared in unrelated fragments, lack of coordination resulting in cumulation of benefits is quite common.” Larson’s Workers’ Compensation Law 157-1 (Lexis ed.2001). In trying to impose some after-the-fact coordination on these schemes, *79jurisdictions have split, based on their views of legislative intent, on whether an injured, older worker may be eligible for both social security and workers’ compensation benefits.
While most workers are required by federal law to participate in the social security program and are covered by the old-age social security program, all are not. Certain types of employment are exempt, and state and local government employees are covered only to the extent of the state’s “Section 218” agreement with the federal government. A state may require employees who are not covered by a state or local retirement system to participate in social security; whereas, employees who are covered by a state or local retirement system cannot be required to participate in social security unless a majority of them vote in favor of such coverage. Social Security Administration’s Social Security Handbook (13th ed.1997) sees. 1000-1019. Kentucky teachers, for example, have a retirement program and do not participate in social security. Other groups may participate in both retirement programs and social security.
By basing a worker’s entitlement to income benefits after reaching the “normal” retirement age for old-age social security upon whether the worker qualifies for social security, KRS 342.730(4) unfairly discriminates against injured workers who are required to participate in social security, particularly those who have no other pension. Those who do not qualify for “normal” old-age social security are guaranteed an income that is commensurate with their occupational disability, but those who qualify for “normal” old-age social security are not. In contrast, those who are entitled to other types of public or private pensions may receive both a workers’ compensation income benefit and their public or private pension.
III. RATIONAL BASIS
This Court has stated that the primary purpose for the enactment of KRS 342.730(4) was to minimize the duplication of benefits. However, all previous cases exploring this issue that state that social security is no more than another form of income replacement, were rendered before the 2000 amendments to the Social Security Act, and relate to social security law as it existed before the amendments. When KRS 342.730(4) was written, social security laws mandated that persons could not work while receiving social security benefits, making the benefit solely a replacement for wages lost in retirement. To a large extent this rationale resulted in a duplication of workers’ compensation, which replaced wages lost due to work-related injury. Since the enactment of KRS 342.730(4), however, recent changes in social security law now allow older citizens not only to work but also to receive benefits.
Because of the federal government’s revised stance on the availability of social security benefits to the working recipient, a relationship no longer exists between KRS 342.730(4) and the Commonwealth’s interest in avoiding a duplication of benefits. Both the rationale and the source of funding behind the two sets of social legislation belie their overlap. As noted above, workers’ compensation replaces earning capacity. Social security is now most closely equated to a return on monies invested. Workers’ compensation is a wage-loss benefit given to persons injured on the job, financed by state employers through a state program, in lieu of a possible tort action against the employer. This arrangement puts the burden of the injury on the industry because it is in the best position to factor in the cost and to encourage worker safety. Social security is oper*80ated by the federal government and can no longer be viewed as a wage-loss benefit in light of the fact that gainfully employed persons are also allowed to draw social security based solely upon their age. This view has been taken by various states in recent years, including Arkansas, Colorado, and West Virginia. Golden v. Westark Community College, 333 Ark. 41, 969 S.W.2d 154, 158-60 (1998); Industrial Claim Appeals Office v. Romero, 912 P.2d 62, 67-68 (Colo.1996); State v. Richardson, 198 W.Va. 545, 482 S.E.2d 162 (1996).
Historically, old-age social security was intended to replace income lost as a result of retirement. Consequently, those unable to work due to advancing age did not become dependent on the public. However, when the program was enacted, most workers did not live beyond age 65, then the “normal” retirement age for the program. Life expectancies have since increased. Many individuals now must work beyond the “normal” retirement age for their birth date, and many others must do so because their social security benefit, as their only other source of income, fails to meet their essential needs.
Since the amendments, the Social Security Act now provides that earnings are not to be deducted from the old-age social security benefits of those workers who have reached the normal retirement age for their birth date. 42 U.S.C. 403(f)(8)(E). Whereas, those who elect to receive benefits beginning at age 62 and who have not yet reached their “normal” retirement age remain subject to the income limitations that are contained in Subsection (D). Therefore, although old-age social security continues to provide income replacement for those older workers who quit working altogether, it is also apparent that the legislative intent behind the old-age benefit has changed. Congress now appears to view old-age social security as being more like a contractual benefit. For those who continue to work after reaching the “normal” retirement age, the benefit provides an income supplement, the amount of which is based upon their prior contributions to the social security program. When social security benefits eclipse workers’ compensation benefits, there’s a disincentive for those 65 or older to work. This is due to the utter void of wage-loss benefits available in the event of a workplace injury. The end result of this discrimination is that older workers are slowly phased out of the work force. As described in Richardson, supra:
It appears that under [the state code], any permanent total disability award to those [older workers collecting social security] would be subject to reduction by reason of social security based on work before their “retirement.” The courts of Michigan and Florida have sustained similar provisions — based directly on age or on eligibility for social security— on the minimum scrutiny “rational basis” that such provisions of workers’ compensation laws, similar to ours under discussion encourage retirement of older workers and make way for young workers.
Id., 482 S.E.2d at 171. While Richardson ultimately was not based on this argument, I would note that encouraging older workers to leave jobs for which they are qualified is not a rational basis for any statute. This is, however, an unfortunate result of KRS 342.730(4).
IV. METHODS OF FUNDING AND BENEFIT DETERMINATION
Finally, the method of funding for each program differs substantially. Workers’ compensation benefits are funded solely by the employer. Social security is a federal program that is funded through equal contributions by workers and employers. Also workers may now elect to receive old-*81age benefits at age 62. By terminating workers’ compensation income benefits when the recipient becomes eligible for “normal” old-age social security, KRS 342.730(4) has made a worker’s entitlement to income benefits for lost earning capacity subject to the provisions of the federal Social Security Act. This shifts liability from the employer to the public for the worker’s support.
Part of the rationale supporting KRS 342.730(4) is that the employer contributions fund both social security and workers’ compensation benefits. This overlooks the fact that although employers contribute the entire workers’ compensation premium, they contribute only half of the social security premium. Workers contribute the other half. KRS 342.730(4) operates to terminate a benefit that employers fully fund by virtue of qualification for a benefit that they only partially fund and the public guarantees. Since employers are relieved of liability, older workers in effect subsidize their own wage loss benefit.
KRS 341.730(4) terminates workers’ compensation benefits simply because a worker “qualifies for normal old-age Social Security benefits,” without regard to the amount of social security benefit that worker will receive. Thus, even a minimal amount of social security benefit terminates the entire workers’ compensation income benefit and relieves the employer of its entire remaining liability (assuming that it has paid at least two years of benefits). Yet, benefits under the two programs are determined in entirely different manners.
The amount of a workers’ compensation benefit is based upon the recipient’s average weekly wage (or state’s average weekly wage) at the time of injury; whereas, the amount of a social security benefit is based upon the aggregate of the recipient’s wages. Social security has never covered all types of employment. Thus, longtime workers may well have contributed little to the social security program and, therefore, be eligible for only minimal old-age benefits. Under those circumstances, it is arbitrary to view one benefit as replacing the other or to equate the fact that a worker is eligible for “normal” old-age social security with the income benefit that is set forth in KRS 342.730(1) or KRS 342.732.
In short, while the Commonwealth’s desire to eliminate duplicative benefits is appropriate and necessary for the preservation of workers’ compensation, the means chosen for achieving that goal are improper in this instance because it draws an impermissible difference between the similarly situated classes of social security recipients who continue to supplement their benefits by working and social security recipients who would continue to supplement their incomes except for work-related injuries. KRS 342.730(4) is a violation of the equal protection guaranteed by our state and federal constitutions and should be repealed.
I would find that KRS 342.730(2) violates the equal protection provisions of both the United States and the Kentucky Constitutions. Consequently, I would reverse the decision of the Court of Appeals and remand this matter to the Workers’ Compensation Board for an award of benefits.
LAMBERT, C.J., and KELLER, J., join this dissent.
. As amended effective December 12, 1996, the statute provides as follows:
*78All 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 occurs last. In like manner all income benefits payable pursuant to this chapter to spouses and dependents shall terminate when such spouses and dependents qualify for benefits under the United States Social Security Act by reason of the fact that the worker upon whose earnings entitlement is based would have qualified for normal old-age Social Security retirement benefits.