Opinion
No. 1999-CA-002745-WC.
August 18, 2000. Ordered Not For Publication by Supreme Court File No. 2000-SC-000827-WC.
Petition for Review of a Decision of the Workers' Compensation Board WC-97-65060
Thomas W. Moak, Prestonsburg, KY, brief and oral arguments for appellant.
Before: BUCKINGHAM, JOHNSON, and TACKETT, Judges.
OPINION
Gregory Adkins petitions for our review of an opinion of the Workers' Compensation Board (Board) which affirmed an opinion by an administrative law judge (ALJ) awarding Adkins benefits for a permanent partial disability rating of 15%. The sole issue in this case is whether KRS 342.730(1) is constitutional. We hold that it is and therefore affirm.
Kentucky Revised Statutes.
While employed with R S Body Company, Adkins suffered a work-related injury on September 19, 1997. Adkins was lifting a hub on an axle when he experienced pain near the center of his low back. He attempted to return to work at light duty, but he was unable to continue and last worked in April 1998. The only medical evidence introduced in Adkins' claim came from his treating orthopedic surgeon, Dr. John J. Vaughn, who assessed a permanent functional impairment of 10% to the body as a whole in accordance with the American Medical Association (AMA) "Guides to the Evaluation of Permanent Impairment."
The ALJ found it was likely Adkins would not be able to resume the type of work in which he was customarily able to engage prior to his work injury. However, the ALJ further held that "it cannot be said that he [Adkins] is totally disabled." The ALJ then held as follows:
It having been determined that petitioner has been rendered less than totally disabled by the effects of the September 19, 1997, work injury, his permanent disability must be computed in accordance with the table set forth in KRS 342.730(1)(b); and, because petitioner is precluded from returning to the type work in which he was engaged when injured, application of the enhancement factor provided in KRS 342.730(1)(c)1. is warranted as well. Therefore, utilizing the various multiplication components, petitioner is deemed entitled to benefits for a permanent partial disability rating of 15% (10% x 1.0 = 10% x 1.5). Such benefits amount to $30.68 per week (66 2/3% x $306.82 = $204.55 x 15%).
Following the Board's affirmance of the ALJ's opinion, Adkins petitioned our court for review, challenging the constitutionality of the statute.
KRS 342.730 addresses the determination of income benefits for disability, and provides in pertinent part as follows:
(1) Except as provided in KRS 342.732, income benefits for disability shall be paid to the employee as follows:
(a) For temporary or permanent total disability, sixty-six and two-thirds percent (66 2/3%) of the employee's average weekly wage but not more than one hundred percent (100%) of the state average weekly wage and not less than twenty percent (20%) of the state average weekly wage as determined in KRS 342.740 during that disability. Nonwork-related impairment and conditions compensable under KRS 342.732 and hearing loss covered in KRS 342.7305 shall not be considered in determining whether the employee is totally disabled for purposes of this subsection.
(b) For permanent partial disability, sixty-six and two-thirds percent (66 2/3%) of the employee's average weekly wage but not more than seventy-five percent (75%) of the state average weekly wage as determined by KRS 342.740, multiplied by the permanent impairment rating caused by the injury or occupational disease as determined by "Guides to the Evaluation of Permanent Impairment," American Medical Association, latest edition available, times the factor set forth in the table that follows:
AMA Impairment Factor
0 to 5% 0.75
6 to 10% 1.00
11 to 15% 1.25
16 to 20% 1.50F
21 to 25% 1.75
26 to 30% 2.00
31 to 35% 2.25
36% and above 2.50
KRS 342.730(1)(a) and (b). Adkins argues that by requiring the fact finder to use a numerical formula to determine the occupational disability of an injured party, the fact finder is not able to take into account such important factors as the injured workers' lack of education or job skills or the difficulty he will face in trying to obtain a new employment position due to these factors. He asserts that an injured worker cannot be fairly compensated by simply reducing the injury to simple mathematical terms. He contends that the statute treats injured workers in an arbitrary or capricious fashion and that it violates Sections 14, 54, and 241 of the Kentucky Constitution and the separation of powers doctrine. We disagree.
Section 14 of the Kentucky Constitution provides that "[a]ll courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial, or delay." Section 54 of the Kentucky Constitution provides that "[t]he General Assembly shall have no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property." Section 241 of the Kentucky Constitution provides in part that "[w]henever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be recovered for such death, from the corporations and persons so causing the same." It is apparent that the gist of Adkins' arguments is that the statute unconstitutionally precludes the right of an injured worker to be fully compensated for his injury.
KRS 342.395(1) gives an employee the right to reject the provisions of KRS Chapter 342, the statutes relative to workers' compensation law. KRS 342.395(3) provides that unless an employee gives a written notice of rejection of the statute, "the measure of liability of the employer shall be determined according to the compensation provisions of this chapter." In holding that the workers' compensation statutes did not violate Section 54 of the Kentucky Constitution, the court in Greene v. Caldwell, 170 Ky. 571, 186 S.W. 648 (1916), held as follows:
It is quite correct to say that this section operates as a restraint on the General Assembly, and prohibits it from attempting to limit the amount of recovery in the cases described in the section. But in this legislation the General Assembly did not arbitrarily or at all undertake to limit the amount of recovery. It merely proposed a statute to a certain class of people for their individual acceptance or rejection. It did not assume to deprive these classes or individuals without their consent of any constitutional rights to which they were entitled. The General Assembly merely afforded by this legislation a means by and through which individuals composing classes might legally consent to limit the amount to which the individual would be entitled if injured or killed in the course of his employment.
Id. at 170 Ky. 580-81, 186 S.W. at 652. Adkins' consent to the provisions of the statute negates his argument that it violates Section 54.
For the same reason, we hold that the statute does not violate Sections 14 and 241 of the Kentucky Constitution. The Kentucky Supreme Court held in M.J. Daly Co. v. Varney, Ky., 695 S.W.2d 400 (1985), ( overruled on other grounds, U.S. Fidelity Guaranty Co. v. Technical Minerals, Inc., Ky., 934 S.W.2d 266, 269 (1996)), as follows:
Our Kentucky Constitution, §§ 14, 54, and 241, preserve to all persons, including the employee, the common law remedy in tort against a party at fault, except where the employee has made a voluntary election to waive such constitutional rights, express or implied. The foundation for declaring workers' compensation constitutional in Kentucky is built on recognition of this principle. Wells v. Jefferson Co., Ky., 255 S.W.2d 462 (1953). In Wells, we recognized a "presumed acceptance" as a waiver of the worker's constitutional rights, but we did not abolish the acceptance and waiver requirements.
Id. at 403. See also Edwards v. Louisville Ladder, Ky.App., 957 S.W.2d 290 (1997), wherein this court held that the 1994 amendment to KRS 342.730(1)(a) was constitutional and did not violate either Section 14 or Section 54 of the Kentucky Constitution. Id. at 294.
Adkins' last argument is that the statute violates the separation of powers doctrine in that it is an intrusion by the legislature into an area where only the judicial branch has power. This argument is obviously based on Sections 27, 28, and 116 of the Kentucky Constitution. In support of his argument, Adkins cites O'Bryan v. Hedgespeth, Ky., 892 S.W.2d 571 (1995), wherein the Kentucky Supreme Court held that "[r]esponsibility for deciding when evidence is relevant to an issue of fact which must be judicially determined . . . falls squarely within the parameters of `practice and procedure' assigned to the judicial branch by the separation of powers doctrine and Section 116." Id. at 576. The O'Bryan court held that the collateral source statute which made evidence of collateral source payments in personal injury actions admissible violated the separation of powers doctrine. Id. at 578. We hold that the provisions of KRS 342.730(1) do not violate the separation of powers doctrine. The statutory provisions in question determine how income benefits are to be determined and are not matters which relate to the admissibility of evidence so as to fall under the principles of the O'Bryan case.
In short, the fallacy of Adkins' arguments is his contention that the statute unconstitutionally hampers the rights of injured workers to recover damages for their injuries. The Kentucky Supreme Court stated in Mullins v. Manning Coal Corp., Ky., 938 S.W.2d 260, 263 (1997), that "[t]he Workers' Compensation Act . . . is not predicated upon redressing a wrong which has caused an injury. In fact, liability under the compensation act is not in any way dependent on negligence, tortious conduct, or comparative negligence." Rather, the purpose of the workers' compensation statutes is to compensate injured workers for "disability for work." Whittaker v. Johnson, Ky., 987 S.W.2d 320, 321 (1999). Because Adkins consented to the provisions of the workers' compensation statutes and did not reject them, his rights under the Kentucky Constitution have not been violated. See Greene, supra.
The opinion of the Board is affirmed.
ALL CONCUR.