Opinion
NO. 2020-CA-1218-WC
02-12-2021
TINA SPURGEON APPELLANT v. MASTERSONS CATERING; HON. JEFF V. LAYSON, ADMINISTRATIVE LAW JUDGE; DANIEL CAMERON, KENTUCKY ATTORNEY GENERAL; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Wayne C. Daub Louisville, Kentucky BRIEF FOR APPELLEE MASTERSONS CATERING: Joseph C. Klausing Brent E. Dye Louisville, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-16-73666 OPINION
AFFIRMING
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BEFORE: CALDWELL, COMBS, AND L. THOMPSON, JUDGES. COMBS, JUDGE: Appellant, Tina Spurgeon, appeals from an opinion of the Workers' Compensation Board affirming the determination of the Administrative Law Judge (ALJ) that her award of income benefits is subject to the limitations in KRS 342.730(4) as amended effective July 14, 2018. Spurgeon also raises an argument regarding the constitutionality of the amended statute. After our review, we affirm the Workers' Compensation Board.
Kentucky Revised Statutes.
By Opinion, Award, and Order rendered on April 20, 2020, the ALJ awarded permanent total disability (PTD) benefits to Spurgeon due to a May 14, 2016, injury "until such time that the Plaintiff reaches the age of 70" in accordance with KRS 342.730(4). The statute as amended effective July 14, 2018, provides as follows:
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.
Spurgeon filed a petition for reconsideration raising an issue as to the retroactive application and constitutionality of the amended statute, which the ALJ denied by an order rendered on May 4, 2020.
Spurgeon appealed to the Workers' Compensation Board and argued that the ALJ erred in applying KRS 342.730(4) -- as amended by House Bill 2-- retroactively. Spurgeon also argued that retroactive application of the amended statute would violate the Contracts Clause of the United States and Kentucky Constitutions and that it is an exercise of arbitrary power in contravention of Section 2 of the Kentucky Constitution.
By opinion re-entered on September 4, 2020, the Board affirmed with respect to the ALJ's application of the amended version of KRS 342.730(4). The Board explained as follows:
The Board also vacated in part and remanded. However, Spurgeon only appeals with respect to the issues of retroactivity and constitutionality of KRS 342.730(4). She does not appeal from the portion of the Board's decision related to remand.
In Holcim v. Swinford, 581 S.W.3d 37 (Ky. 2019), the Kentucky Supreme Court determined the amended version of KRS 342.730(4), effective July 14, 2018, regarding the termination of benefits at age 70 has retroactive applicability. Because the Kentucky Supreme Court has determined the newly enacted amendment applies retroactively, we affirm the ALJ's decision ordering the permanent total disability benefits are subject to the limitation in KRS 342.730(4), effective July 14, 2018.With regard to the constitutional issues Spurgeon raised, the Board explained that:
[A]s an administrative tribunal it has no jurisdiction to determine the constitutionality of a statute. Blue Diamond Coal Company v. Cornett, 300 Ky. 647, 189 S.W.2d 963 (1943). Consequently, we are without authority to render a decision upon Spurgeon's argument regarding the constitutionality of the amended statute. Thus, we affirm in this regard.
Spurgeon appeals. She argues that the ALJ erred in applying the amended version of KRS 342.730(4) to her PTD award. However, as the Board explained, Holcim unequivocally holds that the amended statute applies retroactively. Because we are persuaded that Holcim is dispositive of this case, we decline to address the sub-issue of the constitutionality of the statute's retroactive application.
Therefore, we AFFIRM the opinion of the Board.
THOMPSON, L., JUDGE, CONCURS.
CALDWELL, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Wayne C. Daub
Louisville, Kentucky BRIEF FOR APPELLEE
MASTERSONS CATERING: Joseph C. Klausing
Brent E. Dye
Louisville, Kentucky