Opinion
NO. 2018-CA-000589-WC
02-21-2020
EDWARD TORAK APPELLANT v. MOUNTAINSIDE COAL COMPANY; HONORABLE JOHN B. COLEMAN, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Timothy J. Wilson Lexington, Kentucky BRIEF FOR APPELLEE MOUNTAINSIDE COAL COMPANY: W. Barry Lewis Hazard, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-16-01197 OPINION
AFFIRMING IN PART, VACATING IN PART, AND REMANDING
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BEFORE: JONES, LAMBERT, AND K. THOMPSON, JUDGES. LAMBERT, JUDGE: Edward Torak petitions this Court for review of the March 23, 2018, decision of the Workers' Compensation Board (the Board) affirming in part, vacating in part, and remanding the January 27, 2017, opinion, award, and order, and the February 20, 2017, order amending the award of permanent partial disability (PPD) benefits, as requested by Mountainside Coal Company (Mountainside), of the Administrative Law Judge (ALJ). In his petition, Torak contends that, as a matter of law, the ALJ committed two errors, as did the Board in affirming in part. We affirm the Board's holding regarding Torak's hearing loss, but we vacate (and remand for recalculation) the holding that the 1994 version of the Kentucky Revised Statute (KRS) 342.730(4) tier-down formula applied to the calculation of Torak's PPD benefits.
We repeat the factual summary as stated by the ALJ in its opinion, award, and order, first as it pertains to Torak's lower back work-related injury:
[Torak] was born on February 24, 1954 . . . . He has a Bachelor's Degree from Penn State University in metallurgy and has an extensive career in the coal mining industry working in the processing of coal. On April 24, 2015, [Torak] was employed by [Mountainside] and the parties were covered under the Workers' Compensation Act. [Torak] was performing job duties in the course and scope of his employment as a preparation plant manager wherein he earned an average weekly wage of $2,115.39. On that date, [Torak] was engaged in taking an inventory of parts and equipment when he went to lift a pallet which was holding a very heavy box of ball bearings. [Torak], who was 61 at the time, suffered an immediate onset of lower back pain and sought care at a local facility known as CarePlus.
[Torak] was given restrictions, placed on medications and physical therapy while in the care of CarePlus. He continued working under the restrictions for one week prior to being laid off from his employment
on May 2, 2015. [Torak] has not returned to work since that date. He was placed on temporary total disability [TTD] at the rate of $773.61 on that day and continued receiving those benefits through April 3, 2016.
Torak later complained of, and was evaluated for, neuropathy in his left upper extremity. The ALJ concluded that Torak's impairment rating for the lumbar injury was 7%, but that the claim for left ulnar nerve neuropathy was not compensable as Torak had failed to prove that the latter ailment was related to any work injury. The ALJ awarded PPD benefits, reduced by the grid factor of .85 under KRS 342.730(1)(b), to 5.95%, then, according to the ALJ's conclusions, enhanced by "a factor of 3X pursuant to KRS 342.730(1)(c)1. Given the fact that [Torak] was over age 60 at the time of his injury, [Torak was] entitled to an additional 6/10 multiplier making the multiplier 3.6X." However, the ALJ limited the PPD award by the age restrictions contained in KRS 342.730(4), so that Torak was to receive $773.61 (with interest at the rate of 12% per annum) from the period of May 2, 2015, through June 16, 2016. Mountainside was given credit for the $30,170.79 already paid in temporary total disability benefits.
Torak also filed a claim for hearing loss, which was summarized by the ALJ in this manner:
[Torak] supported his application for hearing loss benefits with the medical report indicating 1% whole person impairment. [Torak] presented a receipt for a certified letter providing notice to [Torak's] employer of the alleged occupational hearing loss. The university
evaluation was performed pursuant to KRS 342.315 and also found [Torak] to have 1% impairment due to the occupational hearing loss. The evaluator felt the hearing protection devices should be worn whenever [Torak] was exposed to loud noise, but noted that it was unlikely the hearing loss would be amenable to medical or surgical treatment. Instead, the evaluator noted the primary treatment would be hearing aids or other assistive listening devices.Because Torak had not met the threshold impairment of at least 8%, required by KRS 342.7305(2), the ALJ concluded that Torak was entitled to medical benefits only, not income benefits.
On appeal to the Board, Torak argued the same issues that he does here, namely, that he was entitled to the full 425 weeks of PPD benefits rather than having them reduced through the tier-down provisions contained in the 1994 version of KRS 342.730(4), and that the ALJ erred in failing to award indemnity benefits for his hearing impairment. This matter was held in abeyance pending the Kentucky Supreme Court's review of the constitutionality of the two statutes in question. It was returned to the active docket on January 17, 2020.
We begin by repeating the standard of review enunciated in Teco/Perry County Coal v. Feltner, 582 S.W.3d 42 (Ky. 2019):
We review questions of law, including the constitutionality of a statute, de novo. Parker v. Webster County Coal, LLC, 529 S.W.3d 759, 765 (Ky. 2017). "In considering an attack on the constitutionality of legislation, this Court has continually resolved any doubt in favor of constitutionality rather than
unconstitutionality." Hallahan v. Mittlebeeler, 373 S.W.2d 726, 727 (Ky. 1963) (citing Reynolds Metal Co. v. Martin, 269 Ky. 378, 381-82, 107 S.W.2d 251, 253 (1937)). In determining the constitutionality of a statute, "[o]ur functions are to determine the constitutional validity and to declare the meaning of what the legislative department has done. We have no other concern." Johnson v. Commonwealth ex rel. Meredith, 291 Ky. 829, 833, 165 S.W.2d 820, 823 (1942).Id. at 45.
The Kentucky Supreme Court found KRS 342.730(4) to be constitutionally infirm on equal protection grounds in Parker v. Webster County Coal, LLC (Dotiki Mine), 529 S.W.3d 759, 770 (Ky. 2017), subsequent to the ALJ's decision but prior to the decision rendered by the Board. The Parker Court was silent as to whether the 1994 or 1996 version of the statute should apply. The Board determined that the 1994 version should apply and remanded Torak's claim "for a revised calculation of PPD benefits pursuant to the tier-down formula set forth in the 1994 version of KRS 342.730(4)."
There have since been new developments on this issue. In a recent decision by this Court, it was stated:
In HB 2, the General Assembly expressly declared the amendment to KRS 342.730(4) applied retroactively to all claims where the injury occurred after December 12, 1996, and the claim was in the appellate process as of July 14, 2018. We conclude the claim at bar satisfies both conditions for retroactive application of the newly amended version of KRS 342.730(4). Here, the ALJ erroneously applied the unconstitutional version
of KRS 342.730(4) to Hensley's award. The Board correctly reversed that part of the ALJ's decision but erred by remanding the claim for entry of an award pursuant to the 1994 version of the statute. Accordingly, we vacate that portion of the Board's opinion and remand this matter to the ALJ for entry of an award applying the 2018 version of KRS 342.730(4).Pine Branch Mining, LLC v. Hensley, 590 S.W.3d 268, 275 (Ky. App. 2019) (emphasis ours). The Board here made an error similar to the one in Pine Branch Mining. "Since the newly-enacted amendment applies retroactively, it must be used to determine the duration of Swinford's benefits. We remand this matter to the ALJ to apply the time limits set out in the 2018 amendment to KRS 342.730(4)." Holcim v. Swinford, 581 S.W.3d 37, 44 (Ky. 2019).
We likewise vacate the Board's holding here that Torak's PPD benefits were subject to the 1994 version of the statute and remand for application of the 2018 amendment to KRS 342.730(4) in conformity with Holcim and Pine Branch Mining.
There was no error in the Board's conclusion that the hearing impairment was medically but not otherwise compensable. In Feltner, 582 S.W.3d at 48, our Supreme Court held that "a rational basis exists for the 8% impairment threshold for PPD income benefits in KRS 342.7305(2)." Thus, the Board did not err in affirming that aspect of the ALJ's decision.
Accordingly, we affirm in part, vacate in part, and remand this matter for further proceedings consistent with this opinion.
ALL CONCUR. BRIEF FOR APPELLANT: Timothy J. Wilson
Lexington, Kentucky BRIEF FOR APPELLEE
MOUNTAINSIDE COAL
COMPANY: W. Barry Lewis
Hazard, Kentucky