Opinion
NO. 2015-CA-000812-WC
01-15-2016
RAY BALLOU APPELLANT v. ENTERPRISE MINING CO., INC.; HON. R. ROLAND CASE, ADMINISTRATIVE LAW JUDGE; KENTUCKY ATTORNEY GENERAL; AND THE WORKERS' COMPENSATION BOARD APPELLEES
BRIEF AND ORAL ARGUMENT FOR APPELLANT: Thomas W. Moak Prestonsburg, Kentucky BRIEF ARGUMENT FOR APPELLEE, ENTERPRISE MINING CO., INC.: Tighe Estes Lexington, Kentucky ORAL ARGUMENT FOR APPELLEE, ENTERPRISE MINING CO., INC.: H. Brett Stonecipher Florence, Kentucky BRIEF FOR ATTORNEY GENERAL: James R. Carpenter Frankfort, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. 13-WC-00049 OPINION
AFFIRMING BEFORE: ACREE, CHIEF JUDGE; NICKELL AND TAYLOR, JUDGES. TAYLOR, JUDGE: Ray Ballou petitions the Court to review an Opinion of the Workers' Compensation Board (Board) entered May 8, 2015. We affirm.
On January 9, 2013, Ballou filed a claim for workers' compensation benefits alleging he had contracted pneumoconiosis from working in coal mines. The record reflects that Ballou worked in the coal mining industry from 1982 until May 9, 2012, the date of his last exposure to coal dust. Ballou was sixty-nine years old upon the date of his last exposure to coal dust (May 9, 2012).
By opinion and award entered February 20, 2015, the Administrative Law Judge (ALJ) found that Ballou demonstrated "the presence of x-ray evidence of coal workers' pneumoconiosis Category 1/1." As Ballou's pulmonary function studies were above 80 percent, the ALJ concluded that Ballou was only entitled to receive retraining incentive benefits (RIB) under Kentucky Revised Statutes (KRS) 342.732(1)(a). As to RIB, the ALJ determined that Ballou was over 65 years of age and would be ineligible to receive a monetary benefit based upon a 25 percent disability rating in lieu of actual RIB:
KRS 342.732(1)(a)7 gives the option for an employee who is age fifty-seven (57) years or older on the date of last exposure and who is entitled to retraining incentive benefits to elect to receive a 25% disability rating in lieu of the retraining incentive benefits for a period of not to exceed four hundred twenty-give (425) weeks, or until the employee reaches sixty-five (65) years of age, whichever occurs first. Although the plaintiff was older than fifty-seven (57) years of age at the time of his last exposure, he also has surpassed the age of sixty-five (65) on the date of his last exposure, which makes him ineligible to receive the 25% disability rating pursuant to KRS 342.732(1)(a)7. However, the plaintiff only has a ninth grade education and he could receive benefits pursuant to KRS 342.732(1)(a)3 for a period up to 17 weeks while pursuing a GED.Opinion, Award and Order at 3. The ALJ also noted that Ballou challenged the constitutionality of KRS 342.732(1)(a)7 and had preserved the issue for review by the judiciary.
Ballou then sought review with the Board, and the only contested issue was the constitutionality of KRS 342.732(1)(a)7. As the Board lacked jurisdiction to pass upon the constitutionality of the statute (KRS 342.732(1)(a)7), the Board summarily affirmed the ALJ. Our review follows.
The statute challenged by Ballou on constitutional grounds is KRS 342.732(1)(a)7, which reads:
(1) Notwithstanding any other provision of this chapter, income benefits and retraining incentive benefits for occupational pneumoconiosis resulting from exposure to coal dust in the severance or processing of coal shall be paid as follows:
(a) 1. If an employee has a radiographic classification of category 1/0, 1/1 or 1/2, coal workers' pneumoconiosis and spirometric test values of eighty percent (80%) or more, the employee shall be awarded a one (1) time only retraining incentive benefit which shall be an amount equal to sixty-six and two-thirds percent (66-2/3%) of the employee's average weekly wage as determined by KRS 342.740, but not more than seventy-five percent (75%) of the state average weekly wage, payable semimonthly for a period not to exceed one hundred four (104) weeks, except as provided in subparagraph 3. of this paragraph.
7. An employee who is age fifty-seven (57) years or older on the date of last exposure and who is awarded retraining incentive benefits under subparagraphs 1. to 4. of this paragraph, may elect to receive in lieu of retraining incentive benefits, an
amount equal to sixty-six and two-thirds percent (66-2/3%) of the employee's average weekly wage, not to exceed seventy-five percent (75%) of the state average weekly wage as determined by KRS 342.740 multiplied by the disability rating of twenty-five percent (25%) for a period not to exceed four hundred twenty-five (425) weeks, or until the employee reaches sixty-five (65) years of age, whichever occurs first, KRS 342.730(4) notwithstanding.
Ballou contends that KRS 342.732(1)(a)7 offends both the due process clause and the equal protection clause of the Kentucky Constitution and the United States Constitution. Specifically, Ballou argues:
The guarantees of equal protection and due process are found in the Fourteenth Amendment of the United States Constitution and Sections 1, 2, and 3 of the Kentucky Constitution.
Pursuant to KRS 342.732(1)(a)7 an individual who was at least 57 years old on the date of his last exposure may elect to receive income benefits based on a 25% disability rating for a period not to exceed 425 weeks or until the employee reaches age 65 years of age, whichever occurs first.Ballou's Brief at 6.
Ray Ballou was past age 65 when he last worked and therefore was not eligible to receive income benefits based on a 25% disability rating even though the Administrative Law Judge found that he suffered from category 1 pneumoconiosis. The statute which limits benefits strictly based on the worker's age is unconstitutional because there is no rational basis for a law that provides no benefits to someone who is more than 65 years old when he last worked.
Essentially, Ballou believes that the prohibition on a claimant who is 65 years of age or older from receiving a monetary benefit in lieu of RIB is not rationally related to a legitimate government objective and is constitutionally invalid. Ballou is challenging the disparate treatment created in KRS 342.732(1)(a)7 between pneumoconiosis claimants who are older than 65 years of age and those claimants who are 65 years of age or younger. Ballou maintains that this classification or difference in treatment is based solely on age and violates the constitutional guarantees of equal protection and due process.
The classification based upon age created in KRS 342.732(1)(a)7 is only violative of equal protection and due process if such classification is not rationally related to a legitimate state interest or objective. Edwards v. Louisville Ladder, 957 S.W.2d 290 (Ky. 1997); Reynolds Enter. Inc. v. Ky. Bd. of Embalmers and Funeral Dir., 382 S.W.3d 47 (Ky. 2012). Moreover, legislative enactments carry a presumption of constitutionality. Keith v. Hopples Plastics, 178 S.W.3d 463 (Ky. 2005).
Kentucky Revised Statutes 342.732 is a workers' compensation statute and constitutes economic legislation. Keith v. Hopple Plastics, 178 S.W.3d 463 (Ky. 2005). As economic legislation, the deferential rational basis standard is applicable to constitutional challenges under the equal protection clause and due process clause. --------
The purpose behind awarding RIB to pneumoconiosis claimants under KRS 342.732 was "to diminish the likelihood of [coal miners] becoming totally disabled by coal miners' pneumoconiosis" at a later date. Kem Coal Co. v. Baker, 918 S.W.2d 236, 238 (Ky. App. 1996). RIB was specifically "aimed at encouraging coal workers who have contracted pneumoconiosis to leave the mining industry." Id. at 238.
By enactment of KRS 342.732(1)(a)7, pneumoconiosis claimants between the age of 57 and 64 are entitled to elect to receive a monetary benefit in lieu of RIB. Such age restrictions obviously reflect the recognition that a coal miner older than 57 is unlikely to be amenable to retraining in another industry and is nearing retirement age. Therefore, the monetary benefit is intended to provide some compensation to those older coal miners who are not yet retirement age but too old to be retrained. As to coal miners 65 and older, it is not unreasonable for the legislature to assume that such "worker[s'] level of compensation often decrease[s] as a result of retirement, reduction in work, or other reasons." Edwards v. Louisville Ladder, 957 S.W.2d 290, 296 (Ky. App. 1997) (quoting Cruz v. Chevrolet Grey Iron, 53 Mich. App. 472, 220 N.W.2d 178, 180 (1974)). Consequently, the reduction in benefits based upon age (those 65 and older) "is rationally related to the scale-down in earning capacity due to normal retirement." Id. at 296. We, thus, conclude that KRS 342.732(1)(a)7 classification based upon age survives the rational basis standard.
Additionally, our Courts have upheld the constitutionality of limiting income benefits to workers' compensation claimants based upon age. Wynn v. Ibold, 969 S.W.2d 695 (Ky. 1998); Keith v. Hopple Plastics, 178 S.W.3d 463 (Ky. 2005); Estridge v. Stovall, 704 S.W.2d 653 (Ky. App. 1986). In affirming the constitutionality of such age-restrictive statutes, the Supreme Court reasoned:
Keeping in mind that the purpose of workers' compensation legislation is to maintain a stream of income to disabled workers and their dependents, we are persuaded that avoiding a duplication of income benefits is a legitimate state objective and sound public policy. See Brooks v . Island Creek Coal Co., supra. At a time when workers become eligible for other forms of income
replacement, not only does KRS 342.730(4) help avoid making it more profitable to be disabled than not, it also serves to reduce the overall cost of maintaining the workers' compensation system, thereby improving the economic climate for all the citizens of the state. We, therefore, conclude that KRS 342.730(4) complies with the requirements of due process and equal protection and is constitutional.Wynn v. Ibold, Inc., 969 S.W.2d 695, 697 (Ky. 1998).
Being bound by established precedents of the Kentucky Supreme Court as set forth in SCR 1.030(8), we hold that the age restriction contained in KRS 342.732(1)(a)7 does not violate the constitutional guarantee of equal protection or due process.
For the foregoing reasons, the Opinion of the Workers' Compensation Board is affirmed.
NICKELL, JUDGE, CONCURS.
ACREE, CHIEF JUDGE, CONCURS AND WRITES SEPARATELY.
ACREE, CHIEF JUDGE, CONCURRING: I concur in the analysis and holding of the majority opinion. I must. But I don't have to like it.
I must concur because our Supreme Court has addressed too similar an issue for this Court to ignore or distinguish. Perhaps this case, and our decision, will present an opportunity for re-assessment of the statute by proper authority.
No matter how benevolent may be the motives of a legislator or legislative body, real world application of any law hardly ever has eternally and universally fair or equal effect on individuals, at least as we perceive fairness and equity in the ordinary sense. The statute at issue was based on circumstances contemporary to its passage. When KRS 342.732(1)(a)7 was enacted, for example, the full social security benefit age was 65. That is the age delineation in the statute. Currently, however, the full benefit age is 66 for people born between 1943 and 1954, and it will gradually rise to 67 for those born in 1960 or later. Times change.
Individuals' circumstances, and those common to us all, change as well. Is it reasonable, today, that we continue to rely on the rationale "that a worker's level of compensation often decreases upon attaining the age of 65 as a result of retirement, reduction in work, or other reasons"? Edwards v. Louisville Ladder, 957 S.W.2d 290, 296 (Ky. App. 1997). Not everyone who turns 65 heads for Florida to live their golden years in leisure. And it isn't only social security law that keeps Kentuckians working past age 65; too often, what keeps seniors working is the very need to survive. The needs of Ray Ballou and those who depended on him when he was 64 did not magically disappear when he turned 65, nor were those needs supplied by the Social Security Administration.
I concur in the majority opinion because this Court must and should follow precedent. Those with different authority are not so bound. BRIEF AND ORAL ARGUMENT
FOR APPELLANT: Thomas W. Moak
Prestonsburg, Kentucky BRIEF ARGUMENT FOR
APPELLEE, ENTERPRISE MINING
CO., INC.: Tighe Estes
Lexington, Kentucky ORAL ARGUMENT FOR
APPELLEE, ENTERPRISE MINING
CO., INC.: H. Brett Stonecipher
Florence, Kentucky BRIEF FOR ATTORNEY
GENERAL: James R. Carpenter
Frankfort, Kentucky