LLOYD DAY, JR. v. FAIRBANKS COAL COMPANY; THOMAS A. NANNEY, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: November 3, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2000-CA-00048-WC
LLOYD DAY, JR.
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
CLAIM NO. 97-WC-77522
FAIRBANKS COAL COMPANY;
THOMAS A. NANNEY,
Administrative Law Judge; and
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HUDDLESTON, MILLER and TACKETT, Judges.
HUDDLESTON, Judge.
Lloyd Day, Jr. appeals from an opinion of the
Workers’ Compensation Board that affirmed an Administrative Law
Judge’s award of disability benefits based on a finding that Day
has a 5% functional impairment as the result of a work-related
injury.
Day challenges the constitutionality of the use of the
American Medical Association “Guides to the Evaluation of Permanent
Impairment” in determining income benefits for disability.
Day filed a claim for workers’ compensation benefits.
Initially, he received a benefit determination by an arbitrator.
He then requested a de novo review by an ALJ.
The ALJ determined
that Day had a 5% functional impairment according to the AMA Guides
and awarded disability compensation.
Day appealed the ALJ’s
decision to the Board to preserve his constitutional challenge and
to exhaust his administrative remedies before filing an appeal to
this Court.1
Day argues that the award was inadequate because of the
use of the AMA Guides.
He contends that sole reliance on the AMA
Guides improperly encroaches upon the ALJ’s duty as fact-finder to
determine the occupational disability of an injured worker and
yields
an
inadequate
in
Specifically,
Constitution.
award
Day
violation
urges
us
of
to
the
hold
Kentucky
that
the
limitation in discretion imposed upon the ALJ in determining the
extent of his disability based on the AMA Guides under Kentucky
Revised Statute (KRS) 342.730(1)(b) is a violation of Sections 14,
15 and 241 of the Constitution.
KRS 342.730(1)(b) provides that:
Except as provided in KRS 342.732, income benefits for
disability shall be paid to the employee as follows:
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
1
or
occupational
disease
as
Although the Attorney General was notified of Day’s
constitutional challenge pursuant to Kentucky Revised Statute (KRS)
418.075, he has declined to participate in this appeal.
-2-
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%
1.50
21 to 25%
1.75
26 to 30%
2.00
31 to 35%
2.25
36% and above
2.50
Section 14 of the Constitution of Kentucky provides that:
All 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 15 provides that:
No power to suspend laws shall be exercised unless
by the General Assembly or its authority.
Lastly, Section 241 provides that:
Whenever 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,
-3-
from the corporations and persons so causing the same.
Until otherwise provided by law, the action to recover
such damages shall in all cases be prosecuted by the
personal
representative
of
the
deceased
person.
The
General Assembly may provide how the recovery shall go
and to whom belong; and until such provision is made, the
same shall form part of the personal estate of the
deceased person.
Over one hundred years ago, the Supreme Court interpreted
the provision that is now Section 14 of the Constitution2 in
Johnson v. Higgins,3 where it said that:
This provision is found in the bill of rights.
It
prescribes certain duties for the courts of the State,
and also lays down general rules for the manner of
conducting their business, the effect of which may be
thus stated: 1.
They are to be held in an open and
public manner, and their proceedings are not to be secret
or
concealed
from
public
view.
2.
They
are
to
administer justice without sale — that is, they are not
to accept compensation from litigants; and 3.
They are
not to deny any one a fair trial, nor to delay the same,
except upon sufficient legal grounds for continuance.
2
Section 14 of the Kentucky Constitution of 1891 was first
adopted as Article XII, Section 13, of the 1792 Constitution and
was readopted verbatim as Article X, Section 13 of the Constitution
of 1799 and as Article XIII, Section 15, of the Constitution of
1850.
3
3 Metc. 566, 60 Ky. 566, 570-571 (1861). See also Barkley
v. Glover, 4 Metc. 44, 61 Ky. 44 (1862); and Williams v. Wilson,
Ky., 972 S.W.2d 260, 273 (1998) (Cooper, J., dissenting).
-4-
The terms and import of this provision show that it
relates altogether to the judicial department of the
government, which is to administer justice “by due course
of law,” and not to the legislative department, by which
such “due course” may be prescribed.
Any other construction would make it inconsistent
with other clauses of the constitution, and, in fact,
render it practically absurd.
Day does not point to any specific rule or prohibition
within this section of the Constitution that would render the use
of the AMA Guides unconstitutional, nor do we find any language in
this section that leads to the conclusion that the limitation in
discretion imposed upon the ALJ’s determination of the extent of a
worker’s disability based on the AMA Guides under KRS 342.730(1)(b)
is constitutionally infirm.
Day’s argument concerning KRS 342.730(1)(b) is similar to
that raised in Edwards v. Louisville Ladder,4 where the injured
worker
urged
that
the
limitation,
concerning
the
failure
to
consider nonwork-related disability, imposed by KRS 342.430(1)(a),
violates Sections 14 and 54 of the Kentucky Constitution.
In
Edwards, this Court held the limitation on recovery constitutional
because participation in the workers’ compensation program is
voluntary.
Our Kentucky Constitution, §§ 14, 54, and 241,
preserve[s] to all persons, including the employee, the
4
Ky. App., 957 S.W.2d 390 (1997).
-5-
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.5
In Wells v. Jefferson Co.,6 the Supreme Court recognized “presumed
acceptance” as a waiver of the worker’s constitutional rights to
common law tort claims.
A challenge to the constitutionality of an act of the
General
Assembly
must
"necessarily
begin
with
the
strong
presumption in favor of constitutionality and [the Court] should so
hold if possible."7
Additionally, the constitutionality of a
statute dealing with economic matters "will be upheld if its
classification is not arbitrary, or if it is founded upon any
substantial distinction suggesting the necessity or the propriety
of such legislation."8 Day’s presumed acceptance of the provisions
of the Workers’ Compensation Act, including both its remedies and
limitations, eliminates any argument that KRS 342.730(1)(b) is
unconstitutional.
statute
arbitrary.
In any event, we do not find the challenged
KRS
342.730(1)(b)
promotes
an
efficient
5
Wells v. Jefferson Co., Ky., 255 S.W.2d 462, 463 (1953).
6
Id.
7
792
Brooks v. Island Creek Coal Co., Ky. App., 678 S.W.2d
(1984).
8
791,
Kentucky Harlan Coal Co. v. Holmes, Ky., 872 S.W.2d 446, 455
(1994).
-6-
resolution of claims for those classes of workers who are eligible
for benefits under the Act.
Day’s arguments concerning Sections 1 falls upon the same
sword.
His presumed acceptance of the Workers’ Compensation Act
allows the General Assembly to limit his benefits without violating
the Constitution.
Section 241, which relates to wrongful death
actions, has no relevance to this case.
The
decision
of
the
Workers’
Compensation
Board
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Thomas W. Moak
STUMBO, MOAK & NUNNERY, P.S.C.
Prestonsburg, Kentucky
Jeffrey D. Damron
RILEY & WALTERS, P.S.C.
Prestonsburg, Kentucky
-7-
is
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