                                          RENDERED: APRIL 27, 2017


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                   2014-SC-000526-WC         .      ·

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MARSHALL PARKER                                         APPELLANT ·


                ON APPEAL FROM COURT OF APPEALS
                   CASE NO. 2013-CA-001978-WC
v.               WORKERS' COMPENSATION BOARD
                        NO. 09-WC-99663


WEBSTER COUNTY COAL, LLC (DOTIKI                       APPELLEES
MINE); HON. STEVEN G. BOLTON,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD


AND                     20 l 4-SC-000536-WC


WEBSTER COUNTY COAL, LLC (DOTIKI MINE)                 APPELLANT


                ON APPEAL FROM COURT OF APPEALS ·
                   CASE NO. 2013-CA-001968·-wc
v.               WORKERS' COMPENSATION BOARD
                        NO. 09-WC-99663


MARSHALL PARKER;                                       APPELLE ES
MULTICARE MADISONVILLE; DR.
RICHARD HOLZKNECHT; COOP HEALTH
SERVICES; DEACONESS HOSPITAL;
DAVID D. EGGERS, M.D.;
NEUROSURGICAt CONSULTANTS; JAMES
M. DONLEY, M.D.; CENTER FOR
ORTHOPEDI~S; WAYNE C. COLE, D.O.;
KELLY L. COLE, D.O.; HON. STEVEN G.
BOLTON, ADMINISTRATIVE LAW·JUDGE;
AND WORKERS' COMPENSATION BOARD
                 OPINION OF THE COURT BY JUSTICE KELLER.

                      AFFIRMING IN PART AND REVERSING
                           AND REMANDING IN PART

       In separate appeals, Marshall Parker challenges the constitutionality of

 Kentucky Revised Statute (KRS) 342. 730(4) and Webster County Coal (Webster

 County) challenges the Administrative Law _Judge's (ALJ) award ofbenefits to

 Parker for a back injury. The Board affirmed the ALJ's award of benefits but,

 because it lacks the jurisdiction to do so, the Board did not address Parker's

 constitutional claim.I The Court of Appeals affirmed the Board and found that

 KRS 342.730(4)
       .
                is ' constitutional. For the following
                                                    .
                                                       reasons, we affirm the

 Court of Appeals regarding Parker's entitlement to benefits. However, we

 reverse that Court's holding that KRS 342.730(4) is constitutional and remand

 this matter to the ALJ for an award consistent with this opinion.

                                   I. BACKGROUND.
                               .          .       .

       Parker was born on October 5, 1939, and he began working as an

 underground coal miner for Webster County in 1974. On September 8, 2008,

· Parker· slipped while trying to climb over a conveyor'belt. He testified that he

 felt pain in his right knee, righthip, and low back after this incident.      De~pite

 his injuries, Parker continued to work for approximateiy.three months. Parker

 eventually uriderwent right knee surgery in December 2008 and lumbar spine

        I The Board noted in its opinion thaf Webster County filed a number of medtcal
fee disputes while the appeal was pending-and that the AW had issued an order
joining additional parties after the notice of appeal had been filed. Because the AW
lost jurisdiction once.the notice of appeal was filed, the Board vacated his order.
Furthermore, the Board remanded the medical fee disputes for a determination on the
merits artd ori the necessity of joining additional parties .. Neither party has contested
this portion of the Board's opinion; therefore, we do not address it.

                                              2
surgery in June· 2011. Following treatment, Parker has continued to have back

pain, and he has·difficulty walking and climbing stairs. He has not returned to·

any type. of work.

      Webster County accepted liabilio/ for Parker's right knee injury and has
                              '                          \
paid all medical benefits associated with that injury. Because Webster County

is not contesting Parker's knee injury claim, we do not set forth the medical

evidence regarding that claim. However, Webster County did contest Parker's

back injury ~laim b8;sed on medical records containi1:1g pre-injury complaints of

low back pain and diagnostic testing that showed sigi:ificant degenerative      ·

changes. Therefore, we summarize the medical evidence related to that claim

below.

      In support of his back injury claim, Parker filed medical records and a

report from his spine surgeon, Dr: David Eggers. Iri his May 20, 2009 office

note, Dr. Eggers stated that Parker had suffered from "intractable low back and

right radicular leg pain" since an injury in September 2008. In his Form 107

Medical Report- Injury/Hearing Loss/Psychological Condition, Dr. Eggers

stated that Parker suffered from displacement of a lumbar disc, spinal stenosis,

and acquired   spondylolisthesi~.   Dr. Eggers related these conditions to Parker's

injury; however, he did not specify the date of the injury. Furthermore,

although he had been asked to do so, Dr. Eggers would not give an opinion

regarding what permanent impairment or restrictions Parker has.

     · Webster County filed records from Tri-State Orthopedic Surgeons and

Dr. James Donley. The Tri-State records.showe.d, in pertinent part, that Parker

                                          3
complained of and sought treatment for low back and leg pain in September

2003, March 2005, and May 2006. It appears from the records that Parker

received at least one epidural steroid injection in late 2005 and one epidural

steroid injection in May 2006. Furthermore, Parker's 2003 lumbar MRI

revealed multi-level degenerative changes with mild to moderate stenosis. Dr.

Donley's records reveal, in pertinent part, that Parker complained of ach.es and

pains/strains but had not received any treatment for back pain in the two

years   befor~   the work injury.

        Webster County also filed reports from Dr. Russell Travis, Dr. Bart

Goldman, and Dr. William Gavigan. Dr. Travis, in his October 9, 2009 report,

stated that Parker suffered from right L4 radiculopathy secondary to
                                                                  I



degenerative spondylolisthesis with a bulging disc at L4-5 and significant

·degenerative changes throughout the iumbar spine. Dr. Travis concluded that,

despite Parker's significant pre-existing lurribar degenerative changes, .the

surgery then being recommended by Dr. Eggers was work-related . .In reaching

that conclusion, Dr. Travis stated that he had seen "no records that indicate

Mr. Parker had significant low back pain and no right lower extremity pain

prior to this." In a November.20, 2009 addendum to his October report, Dr.

Travis stated that, upon review of an office note from one of Parker's physicians

dated September 28, 2009, Parker's ."current problem is not related directly to

the injury of 9 /2.8/2008, but is clearly a question of pre-"existing severe

degenerative changes with neural impingement and previous symptomatic




                                         4
problems with his low back." We note that Dr. Travis had reviewed and

summarized the September 28, 2008 office note in his October 2009 report.

      Dr. Goldman stated that Parker suffered fro:r;n degenerative retrolisthesis

at L3-4 which pre-existed the September 8, 2008 work-injury. Accordingto Dr.

Goldman, the surgery performed by Dr. Eggers was to alleviate an active pre-

existing condition, not because of Parker's work injury.
                 '           .
      D:u.· Gavigan made diagnoses of severe degenerative-disc disease that

actively pre-existed the work injury. He opined that ali of Parker's back

treatment was related to that pre-existing active condition and not to the work ·

injury. Finally, Dr. Gavigan, who imposed no restrictions, assigned Parker a

22% impairment rating; all of which he attributed to the pre-existing active

condition.

      Based on the preceding evidence, the AW found that Parker suffered a

lower back injury on September 8, 2008 and that none of Parker's back-related

impairment was the result of a pre-existing active "disability /impairment of the
                     .                                              .
back under the holding in Finley (supra)."2 The AW also determined that
                                                     '

Parker is not totally disabled and awarded income benefits based on Parker's

4% kne·e impairment and his 22% lumbar spine impairment for a combined

permanent impairment rating of 26%. However, because Parker had already ·

received two years of temporary total disability income benefits, the AW found

that Webster County did riot have liability for payment of any additional




      2   Finley v. DBiv.ITechS., 217 S.W.3d 261 (Ky. App. 2007).

                                            5
    income benefits pursuan_t to KRS 342.730(4). The Board and the Court of

    Appeals affirmed.

,         As· noted above, both Webster County and Parker have appealed from the

    Court of.Appeals's opinion. Webster County argues that the evidence did not

    support the AW's award of benefits related to Parker's low back condition.

    Parker appeals the AW's termination of income benefits pursuant to KRS

    342.730(4). We set forth additional necessary background information below.

                             II. STANDARD OF REVIEW~

          The AW has the sole discretion to determine the quality, character, and

    substance of the evidence and may reject any testimony and believe or
             .                    .
    disbelieve various parts ·of the evidence regardless of whether it comes from the

    same witness or the same party's total proof. Paramount Foods, Inc. v.

    Burkhardt, 695 S.W.2d 418, 419 (Ky._ 1985). Parker had the burden of proving
                                                       '            .


    that his back condition is related to the work injury. Gibbs v. Premier Scale.

    Company/Indiana
         .          Scale Co., 50 S.W.3d 754, 763 (Ky. 2001), as modified on
                                                           .




    denial of reh'g (Aug. 23, 2001). Because he was successful before the AW, the

    question for us on appeal is whether the AW's finding of work relatedness is

    supported by substantial evidence. Whittaker v. Rowland, 998 S.W.2d 479,

    481 (Ky. 1999). "Substantial evidence has been defined as some evidence of

    substance and relevant c.onsequence, having the fitness to induce conviction in

    the minds of reasonable men." Id. at481-82. Thus, the determinative

    question.to be answered on review is whether the AW's finding that Parker's

    back condition is related to the work injury "is so unreasonable under the .

                                            6
evidence that it must be viewed as erroneous ·as a matter of law." KRS

342.285; Ira A. Watson Dept. Store v. Hamilton,. 34 S.W.3d 48, 52 (Ky. 2000).

      While we give great deference to the AW's factual findings, questions of

law, i.e., whether KRS 342.370(4) is constitutional, we review de novo. See U.S..

Bank Home Mortgage v. Schrecker, 455 S.W.3d 382, 384 (Ky. 2014). With the

preceding standards in   mind~   we first address Webster County's argument that

the AW's finding that Parker suffered a work-related back injury is not
                                        \
supported by the evidence. We then address Parker's argument that KRS

342. 730(4) is unconstitutional.

                                   III. ANALYSIS.

A.    Whether Parker suffered a work-related back injury.

      Webster County argues that there was not sufficient evidence to support

a finding that Parker suffered a work-related back injury. It notes that Drs.

Gavigan, Travis, and Goldman all opined that P_arker's·back condition actively

pre-existed his September 2008 injury. It also notes   th~t,   although Dr. Eggers

referred to an ipjury as being the cause of Parker's back condition in his Form

107, he did not specify which· injury. Finally, Webster County notes    th~t

Parker's medical records and his testimony indicate that he had complaints of

low back pain for several years preceding the September 2008 injury.

      While Dr. Eggers's Form 107 may have been deficient regarding

causation, he related Parker's back condition to the work injury in his initial

office note. Furthermore, Dr. T~avis's two reports are arguably inconsistent.

Initially, Dr. Travis, who listed and summarized the medical records he

                                            7
reviewed, opined that Parker's back .condition was related to the work injury.

In his· second report,. Dr. Travis listed and summarized those same medical

records as supporting his opinion that Parker's back condition· actively pre-

existed the work injury. The AW was free to consider all of Dr. Eggers's
                      \
records and to believe_ Dr. Travis's initial report and to disbelieve his   ~econd

report. That evidence was substantive and sufficient to suppo:r:t the AW.'s

finding of work-relatedness.

      Furthermore, although Parker did complain of and receive treatment for

low back pain prior to the work injury, he made no such complairits nor

received any such treatment in the two years preceding the September 2008

work injury. In fact, Parker worked an average of 70 hours per week in that

two-year period, and Webster County produced no evidence that any physician

had assigned Parker an impairment rating or imposed permanent restrictions

on Parker's work activities as a result of his pre-injury complaints of back pain.

As stated in Finley v. DBM Techs., 217 S.W.. 3d 261, 265 (Ky. App. 2007):

       a pre-existing condition that is both asymptomatic and produces
       no impairment prior to the work-related injury constitutes a pre-
       existing dormant condition. When a pre-existing dormant condition
       is aroused into disabling reality by a work-related injury, any
       impairment or medical expense related solely to the pre-existing
       condition is compensable. A pre:-existing condition may be either
       temporarily or permanently aroused. If the.pre-existing condition
       completely reverts to its pre-injury dormant state, the arousal is
     ··considered temporary. If the pre-existing condition does not
       completely revert to its pre-injury dormant state, the arousal is
       considered permanent, rather than temporary.

      The AW's   fi~ding   that Parker's back condition did not actively pre-exist

the work injury but is related to that injury is supported by both the evidence

                                          8
and the law. We cannot say the AW's finding was erroneous as a matter of

law, and we therefore affirm it. See Ira _A. U(atson Dept. Store, 34 S.W.3d at48.

B.     Whether KRS 342. 730.(4) is constitutional.

       KRS 342.730(4) states in pertinent part that:

       All income benefits payable pursuant to this chapter shall
       terminate as of the date upon which the employee qualifies for
       normal old-age Social Security retirement benefits under the
       United States Social Security Act, 42 U.S.C. secs. 301 to 1397f, or
       two (2) years after the employee's injury or lasf exposure,
       whichever last occurs.

       At the time of his injury, Parker was 68 years of age and qualified for

"normal old-age Social Security retirement benefits.". Under KRS 342. 730(4),

the AW found that Parker, who had received two years of temporary total

disability benefits, was not entitled to any additional income benefits related to

his permanent disability. Parker argues that KRS 342.730(4)

unconstitutionally infringes on his right to due process, abrogates his jural

rights, a,nd violates the Equal Pro.tection Clauses of the _United States and

Kentucky Constitutions. Webster County argues that, based on           thi~   Court's

prec.edent, Parker's argument is without merit.

       At the outset, we note that this Court previously    ~etermined   that KRS

342.730(4) as it presently exists is constitutional.3 See McDowell v. Jackson

Energy RECC, 84 S.W:3d 71 (Ky. 2002); and Keith v. Hopple Plastics, 178


       3 In 1994, the legislature added paragraph (4) to KRS 342.730, which provided
 that workers' compensation income benefits would be reduced by 10% when an
 employee' reached ~ge 65 and by 10% every year thereafter until the employee reached
-age 70. In Wynn v. Ibold, Inc., 969 S.W.2d 695 (Ky. 1998), we held that version of KRS.
 342.730(4) was constitutional. The legislature adopted the current version of KRS
 342.730(4) in 1996.                                                          ·   .

                                           9
 S.W.3d 463 (Ky. 2005), as corrected (Dec. 13, 2005). We also are cognizant of

 the strong presumption of constitutionality afforded to legislative acts. Id. at

 468. However, having reviewed our prior opinions, we now determine that they

were incorrectly decided regarding the issue of equal protection. In doing. so, we

 are:

        as always, .mindful of the value of prece.dent and the doctrine of
        stare decisis. The doctrine of stare decisis "is the means by which
        we ensure that the law will not merely change erratically, but will
        develop in a.principled and intelligible fashion." Changing the "ebb
        and flow of settled law'' is not something we take lightly, and we do
        so only after careful consideration. While stare decisis "permits
        society to presume that bedrock principles are founded in the law
        rather than in the proclivities of individuals," it does not
        necessitate that this Court "unquestioningly follow prior decisions"
        when we are otherwise compelled. This Court is not assigned the
        duty of maintaining the watch as the law ossifies.

 Osborne v. Keeney, 399 S.W.3d 1, 16-17 (Ky. 2012) (footnotes omitted).

        The dissent questions our decision to re-visit McDowell, stating that the

 only change that has occurred, since that opinion is to the composition of this

 Court. We do not disagree that the composition of the Court has changed;
               .                                      .
 however, we note that the Court was closely divided on this issue in McDowell;

 Furthermore, this Court determined in 2011 that there was no rational basis

for applying a different evidentiary standard to employees who contracted coal

workers' pneumoconiosis than that applied to workers who contracted non-coal

workers' pneumoconiosis. See Vision Mining, Inc. v. Gardner, 364 S.W.3d 455

·(Ky. 2011). This Court did-so de.spite previously holdingthat a rational basis




                                         10
 existed for treating those two groups differently. See Kentucky Harlan Coal Co.

 v. Holmes, 872 S.W.2d 446 (Ky. 1994). 4

       It is undisputed that, because of KRS 342.730(4), injured older workers

 are treated differently from their younger coU:nterp~rts. When a statuto:ry

 provision results in disparate treatment, we look to the 14th Amendment of the

 United States Constitution and to Sections 1, 2, and 3 of the Kentucky

 Constitution. The goal of those constitutional provisions "is to 'keep[]

 governmental decision makers from treating differently persons who are in all

 relevant respects alikem while recognizing that "nearly all legislation

 differentiates in so~e manner between different classes of persons." Vision

 Mining, 364 S.W.3d at 465 (citation and footnote omitted). In order to maintain

 the necessary balance between the goals of the constitutional provisions and

 legislative reality, the Courts apply different levels of scrutiny depending "on
                                                                     .       .
. the classification made in the statute and the interest affected 'by it." Id.

       Currently, there are three levels of :i;-eview applicable to an equal
       protection challenge. Strict or intermediate scrutiny applies       ·
       whenever a statute makes a classification on the basis of a
       "suspect" or."quasi-suspect" class, respectively. Conversely, "if the
       statute merely affects social or economic.policy, it is subject" to a
       less searching form of judicial scrutiny, i.e. the "rational basis"
       test.



       4 We recognize that the Court in Holmes specifically addressed the different
basis for awarding benefits to employees who have contracted coal workers' vs. non-
coal workers' pneumoconiosis, while the Court in Vision Mining was addressing the
standard of proof and the consensus process. However, the.dissent in Vision would
have relied on Holmes to support affirming the disparate evidentiary standards and
the consensus process: Regardless, the fact remains that this Court has revisited its
decisions regarding the constitutionality of portions of KRS 342 when appropriate to
db so..                         . .

                                          11
.                                         .
    Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 465-66 (Ky. 201 l)(citations and

footnotes omitted). "Workers' compensation statutes concern matters of social

and economic policy. As a result, such a statute is· not subject to strict or

[intermediate] scrutiny and therefore must be upheld if a 'rational 'basis' or

'substantial and justifiable reason' supports the classifications that it      cre~.tes."

Id. at 466 (citation omitted).s Proving the absence of a rational basis or of a

substantial and justifiable reason for a statutory provision is a steep burden;

however, it is not an insurmountable one. Id. at 468-69.

         The focus of the parties (and of the majorities ,in our prior decisions) is on

the perceived discrimination between injured older workers and injured

younger workers. This focus is ·understandable because, under the statute, a

worker who is injured more than 425 weeks (or 520 weeks under certain

circumstances) before he or she reaches normal Social Security retirement age

will receive all of the permanent partial disability income benefits to which he

or she is entitled. 6 A worker who is injured less than 425 weeks before he or


        s We note that, while federal case law may be instructive regarding issues of
·equal protection; we are not bound to follow federal equal protection analysis. As we
 noted in Elk Harri Coal Corp. v. Cheyenne Resources, Inc., 163 S:W.3d 408, 418 (Ky.
 2005), "the Kentucky Constitution's equal protec:tion provisions ... are much more
 detailed and specific than the Equal Protection Clause of the United States
 Constitu~on." The analysis employed by our federal counter-parts.acts as a floor,
 below which we may not fall, not as a ceiling, above which we may n·ot rise. Id. In fact,
 "we have construed our Constitution as requiring a 'reasonable basis' or a 'substantial
 and justifiable reason' for discriminatory legislation in. areas of social and economic
 policy." Id. at 418-19. In this case however, the preceding distinction, while.
 important, is one without a difference because KRS 342.730(4) does not pass the less
 stringent rational basis test.
      6 This does not take into account any payment of temporary total disability
income benefits, which could, as it did here, alter the number of weeks of entitlement
to permanent disability benefits.                   ·

                                              12
she reaches normal Social Security retirement age will not receive all of the

permanent partial disability
                   .
                             income benefits to which
                                                  .
                                                      he or she is entitled. The

rational bases for treating younger ahd older workers differently is: (1) it

prevents duplication of benefits; and (2) it results in savings for the workers'

compensation system. Undoubtedly, both of these .are rational bases for

treating those who, based on .their age, have qualified for normal Social

Security retirement benefits differently from those who, based on their age,

have yet to do so.

      However, the equal protection problem with KRS 342.730(4) is that it

treats injured ·older workers who qualify for normal old-age Social Security

retirement benefits differently than it treats injured older workers who do not

qualify. As Justice Graves noted in his dissent in McDowell, "Kentucky

teachers ... have a retirement program and do     no~   participate in social
                                         '
security.". 84 S.W.3d at 79. Thus, a teacher who has not had any outside

employment and who suffers a work-related injury will not be subject to the

limitation in KRS 342.730(4) because that teacher will never qualify for Social

Security retirement benefits. There is no rational basis for treating all other

workers in the Commonwealth differently than· teachers. Both sets of workers ·

will qualify for retirement benefits and both have contributed, in part, to their

"retirement plans:~ However, while teachers will receive all of the workers'

compensation income benefits to which they are entitled, nearly every other

worker in the Commonwealth will not. This disparate treatment does not

accomplish the goals posited as the rational bases for KRS 342.730(4). The

                                       . 13
statute does prevent duplication of benefits, but only for non-teachers because,
           '                                           '



while nearly every other worker is foreclosed from receiving "duplicate

benefits," teachers are   n~t.


      The dissent indicates that our analysis should be limited to determining

if the "overall statutory scheme unlawfully discriminates on the basis of age."

According to the dissent, we have wrongly viewed this matter through the

"lens" of teacher retirement and have concluded that "there is no rational basis

for treating teachers differently from all other workers in the Commonwealth."

To the contrary, what we have concluded is that there is no rational basis for

treating ali other workers in the Commonwealth differently from teachers.

      The dissent also states that we have undertaken to reverse the Court. of

Appeals based on a reason not presented on appeal. However, we note that

Parker has challenged the constitutionality of KRS 342.730(4) on equal

protection grounds at every level. While he has not specifically mentioned the

disparate treatment- between teachers and all other employees in the

Commonweaith, he has challenged the disparate treatment between those who

qualify for normal old age social security retirement and those who do not.

Thus, we believe that is sufficient to preserve the issue for our review.

      As to the alleged savings to the workers' compensation program, we

discern no rational basis for this disparate treatment. In Vision Mining, we

addressed the evidentiary standard and claims' processing procedures that

were being applied in coal workers' pneumoconiosis c1aims. We concluded that

there was no rational basis for treating coal workers suffering from

                                        14
pneumoconiosis differently from other workers suffering from pneumoconiosis.

364 S.W.3d at 473. In doing so, we rejected the employer's argument that the

disparate treatment was justified because it resulted in monetary savings to

the workers' compensation system. Id. at 472. ("The state would save more

money by subjecting all occupational pneumoconiosis claimants to the more

exacting procedure and higher rebuttable standard.")(emphasis in original).

Furthermore, we noted that "[i]n considering·an equal protection challenge, a

court does not engage in accounting of debits and credits; rather the court

must examine whether similarly situated individuals have been treated

differently ... and, if so, whether or not such treatment is rationally related to)

a legitimate state interest.'; Jd.. at 474. Here, injured older workers who qualify

for normal old-age Social Security retirement benefits.are treated differently

than injured older workers who do not. There is no rational basis for treating

these two groups of injured older workers differently.

      The dissent states.that KRS 342.730(4) js constitutional, despite its

disparate treatment of older workers, because the exclusion of teachers from.

its benefit limitation is an example of acceptable "underinclusiveness." We

agree with the dissent that a statutory scheme need not attack "every aspect of

a problem" in   ord~r   to pass constitutional muster; however such a statute

must be "free from invidious discrimination." Dandridge v. Williams, 397 ·u.s.

471 (1970).7 The problem with KRS 342.730(4) is not that it fails to attack


      7In Dandridge, the plaintiffs, who had large families, challenged the Maryland.
Dep.artment of Public Welfare maxi.mum cap on AFDC benefits. 397 U.S. at 474-75.
The Court determined that the cap ·did not violate equal protection. Id. at 487 .
                                         . 15
every aspect of the "problem" of inJt:tredworkers collecting workers'

compensation benefits and retirement benefits. The problem with KRS

342. 730(4) is that it invidiously discriminates against those who qualify for one

type of retirement benefit (social security) from those who do not qualify for

·that type of retirement benefit but do qualify for another type of retirement

benefit (teacher -retirement). B Based on the dissent's interpretation of

underinclusiveness, this Court erred when it determined that it is

unconstitutional to treat those who suffer from coal workers' pneumoconiosis

differently from those who suffer _from non-coal workers' pneumoconiosis. We

discern no reason to reconsider the wisdom of that decision.

       Finally, although Parker did not argue it, KRS 342.730(4) violates the

prohibition.against special legislation found in Section 59 of the Kentucky

Constitution. "A special law i~ legislation whjclJ. 'arbitrarily or beyond

reasonable justification discr;iminates against some persons or objects and

favors others." Board of Ed. pf Jefferson County v. Board of Ed. of Louisville,

472 S.W.2d 496, 498 (Ky. 1971)'. As set forth.above, KRS 342.730(4) favors

Dandridge differs from the case herein because the Maryland statute treated all AFDC
recipients the same because all were subjectto the cap. Here, KRS 342.730(4) treats
two different groups of elderly workers differently.
      8  The dissent ~so cites to Minnesota v. Clover Leaf Creamery Co., 499 U.S. 456
(1981) to support its underinclusiveness argument. However, as with l)andridge,
Clover Leaf Creamery is distinguishable. In Clover Leaf Creamery, the state of
Minnesota passed legislation regulating the sale of milk in plastic containers but
permitting the sale of milk in cardboard containers. 449 U.S. at 456. The Court held
that the statute bore a rational relationship to that state's goals of reducing landfill
and reducing energy consumption. Id. at 458 .. The Minnesota statute treated different
containers differently, but it treated all plastic containers, or containers of the same
"class," the same. Here, KRS 342.730(4) treats younger and elderly workers
differently, which is acceptable. However, it does not treat workers of the same
"class," elderly workers, equally.                                 '

                                          16
                                       (




those who will not qµalify for normal old-age Social Security retirement while

discriminating against those who do qualify .

     . Because we have found KRS 342.730(4) to be constitutionally infirm on
      I
equal protection grounds, we need not address the other arguments raised by

Parker.

                               IV. CONCLUSION.

      Having reviewed the record and the arguments of the parties, we discern

no rational basis or substantial and justifiable reason for the disparate

treatment of two groups of injured older workers. Thus, KRS 342.730(4)

violates the right to equal protection and is constitutionally infirm. Our

opinions to the contrary are hereby overruled, and this matter is remanded_to

the AW for entry of an opinion and award consistent with this opinion.

      All sitting. Cunningham, Keller, Venters and Wright,-JJ., concur.

Minton, C.J., concurs in part and dissents in part by separate opinion, ·in

which Hughes and VanMeter, JJ., join.

      MINTON, C.J., CONCURRING IN PART AND DISSENTING IN PART: I

fully concur with the majority's holding that there was sufficient evidence to
                                                I

support the AW's finding that Parker suffered a work-related injury. But I

must respectfully dissent with regard to the majority's holding that KRS

342. 730(4) violates the Equal Protection Clause of the Fourteenth Amendment

to the United States Constitution as an l,lnlawful discrimination on the basis of

·age. I see no reason justifying our departure from well-established precedent

on this exact same issue.

                                       17
      In   con~ucting   this constitutional analys_is, I wholeheartedly follow the

majority's general approach. The United States Supreme Court has

consistently held that "age is not a suspect classification" for purposes of the

Fourteenth Amendment. See Kimel v. Florida Board of Regents, 528 U.S. 62

(2000). "Age classifications, unlike governmental conduct based on race or

gender, cannot be characterized as 'so seldom relevant to the achievement of

any legitimate state interest that laws grounded in such considerations are

deemed to reflect prejudice and antipathy."' Id. at 83. This standard echoes the

one in place for equal-protection claims premised on soci~l or economic-class

discrimination. In such instances, no suspect class exists, and "a statute will

comply with the Fourteenth Amendment's right to equal protection if it furthers

a legitimate state interest and there _is any conceivable rational basis for the

classes it creates." Keith v. Hopple Plastics, 178 S.W.3d 463, 466 (Ky. 2005) .

     . So there is no disagreement that the proper standard of review for equal-

protection claims based on age or socioeconomic status is rational-basis

review-.the weakest tier of constitutional scrutiny on appeal.. That is, so long
           '

as a statute is rationally related to a legitimate government interest, an

examining court will not hold the act unconstitutional. See Heller v. Doe, 509

U.S. 312 (1993); Keith, 178 S.W.3d at 463. Legislative acts are as such

presumed valid and the burden rests with the challenger to prove no rational

basis exists for this classification. See Lehnhausen v. Lake Shore Auto Parts

Co., 410 U.S. 356; 364 (1973) (emphasis added) ..




                                          18
      The rational-basis test imposes an admittedly enormously high bar for

challengers seeking to invalidate perceived unconstitutional statutes. The

United States Supreme Court has declared the rational-basis test is the proper

measure for distinctions of tbis type for purposes of the Fourteenth

Amendment,. and, absent a finding that our own constitution offers heighted ·

equal-protection rights, we are powerless to change that standard today. So in

both the majority decision and in my interpre'tation, KRS 342.730(4) remains

constitutionally valid so long as its goals are rationally related to a legitimate

state interest. I unfortunately disagree with the majority's conclusion that the

General Assembly has no rational basis in classifying the workforce in this

manner.

      We dealt with this precise issue just over a decade ago in McDowell v.

·Jackson Energy RECC, 84 S.W.3d 71 (Ki 2002) and Keith. And in the time that

has elapsed since, I see no changes or developments in the law other-than the

composition of this Court. There has been no adjustment in either Kentucky or

federal law predicating reconsideration of the wisdom· of these relatively recent

rulings .. As .such, I vote to affirm this deeply rooted precedent ..

      In McDowell, we determined that KRS 342.740(4) exists to avoid

duplication of income-replacement benefits. This structure reduces the overall
                    .                               .

cost ·or workers' compensation and improves the economic stability within state·

government. This reflects a similar policy goal from the pre-1996 tier-down

structure that had previously been upheld.by this Cour.t. See Wynn v. !bold,

969 S.W.2d 695 (Ky. 1998). And this view of the benefit structure as     ~wage-


                                          19
· loss" protection by placing· a ceiling on combined benefits "was viewed widely as

 being sound public policy." Keith, 178 S.W.3d at 467 (referring to     A~thur


 Larson and Lex K. Larson, 9 Larson's Workers' Compensation Law§ 97.35(a)

 and (b) (Matthew Bender 1997)). The McDowell Court also relied on the United

 States Supreme Court decision in Richardson v. Belcher, 404 U.S. 78 (1971), in

 support of its holding. In Belcher, the Court rejected an equal-protection

 challenge to a portion of the Social Security Act that allowed social security

 disability benefits to be reduced through overlapping state workers'

 compensation benefits. Belcher, 404 U.S. at 92. The McDowell Court found no

 difference under therational-basis standard between the federal offset

 provision and that found in KRS 342.730. Anci l agree.

       The Commonwealth's goal of financial stability to ensure the overall

 viability of the state worker's compensation structure is not   on~   I consider

 irrational. And it does so by first recognizing that workers' compensation exists

 to offset wage-loss resulting from workplace injury and then coordinating the
                             \
 receipt of benefits to avoid duplicate recovery. Essentially, the statute exists to

 prevent workers eligible for old-age social security benefits from "receiving.

 greater workers' compensation benefits than similarly situated workers who are

 totally disabled." Keith, 178 S.W.3d at 468. Though the statute admittedly, and

·obviously discriminates against older workers, it advances a legitimate state

goal of ensuring the overall viability and stability of the workers' compensation

 structur:e as a whole. While this may appear unfair and exploitative of some of




                                         20
 the Commonwealth's oldest and most vulnerable workers, lam not prepared to

 say it is unconstitutional to do so.

       The majority opinion in fact agrees that the prevention of duplicate

 benefits and the continued solvency of the workyrs' compensation system are

 indeed rational bases for treating those who have qualified for normal social

·security retirement benefits differently from those whq have yetto do ·so. And

 though it does not expressly say so, I imagine the majority would also find

 these state interests legitimate. So accordiilg to our highly deferential standard

 of review, the analysis should end     ther~.


       But the majority continues by contrasting the general workers'

 compensation structure with the teacher retirement system, a point not raised

 or argued to us or in the proceedings below. As the majority reminds us,

 teachers have their own retirement and do. not participate
                                                  .       .
                                                            in social security.' So

 accordingly, an older teacher who suffers a workplace   inJ~ry   will never be

 subject to the limitation in KRS 342.730(4) because the teacher will never

 quaH.fy for social security. This leads to the majority's ultimate conclusion that

there is no rational basis for treating teachers differently from all other workers

in the Commonwealth. But that is not the question before· this Court in the

case before us today.

       In addressing this observation, the analysis 'is no longer a dispute ov~r ·

whether our overall .statutory scheme unlawfully discriminates on the basis of .

age. Instead, the majority takes its eyes off the issue before us and refocuses

attention on whether state government unconstitutionally distinguishes benefit

                                            21
                            /




availability across different professions. And the majority is justified in

recognjzing this distinction. Perhaps there is indeed a novel question whether

there is a rational· basis (or whatever standard is invoked for. distinctions of this

type-if it even exists). to treat teachers differently from any other worker in the

Commonwealth. Maybe the real question at the heart of that issue requires a

close examination of the teacher retirement system to see whether there is a

good reason to continue to exempt this profession from KRS 342.730(4), or

whether this is simply a   loop~ole   in the system.

      Those disparities
                     . considered,. that statute simply is. not before the court
                                                                              '




for our review. It has no doubt appeared in cases of this kind, to be sure, and it

.formed the central basis in Justice .Graves's dissent in McDowell. The majority

reprises Justice Graves's argument, though this time crafted as a majority

opinion of this Court. But make no mistake, we have not been tasked with

reviewing the exception retired teachers enjoy under the current parameters of

the workers'compensation system. Even entertaining this argument, for the

moment, leaves me equally unpersuaded. To me, viewing teacher retirement

through the lens of this current matter, I am highly skeptical of its usefulness

in conclusively determining that this statute - KRS 242. 730(4) -· violates the

Fourth Amendment's guarantees of equal protection under the law. And the
                                 )

highly deferential rational-basis standard of review clinches the issue for me.

For KRS 342.730(4) to remain constitutional, we need only consi?er any

reasonably conceivable state of facts that could offer a rational basis for the

classifications made by the General Assembly in drafting the statute. See
Commonwealth Natural Res. & Envtl. Prot. Cabinet v. Kenetec Coal Co., Inc:, 177

S.W.3d 718, 738 (Ky. 2005) (Cooper, J., concurring in part and dissenting in

part). Though certainly some in the majority may conclude there is no .

conceivable basis of rationality in the statute's distinction altogether,

comparison to the teacher retirement systerri offers us little to no guidance in

reaching a determination either way.- Under rational-basis review, "the

possibility that a classification II}ight result in some practical inequity doe.s not

cause it [t-he statute] to fail." Id.   A~   the Supreme Court held in Heller v. Doe by

Doe, 509 U.S. 312 (1993), a statutory classification can fail only if it is

completely irrelevant to the achievement of what the majority admits are

legitimate state interests. Id. at 324 (emphasis added).

       Additionally, a stattite's underinclusiveness in achieving its. stated

purpose is insufficient grounds to hold it unconstitutional under the rational-

basis test. See Kenetec Coal, 177        ~.W.3d      at 740. In exercise of its .

constitutional powers,     alegislature is "free to choose to remedy only part of a
problem. It may select one phase of a field and apply a- remedy there, neglecting

the others." Id. (internal citations omitted). In Dandridge v. Williams, 397 U.S.

4 71 (1970), the Supreme Court held that the "Equal Protection Clause               do~s   not

require that a State must choose between attacking every aspect ofa problem

or not attacking the problem at all. It is enough that the State's action be

rationally based and free from invidious discrimination." Id. at 486-87. See also

Minnesota v. Clover Leaf Creamery Co., 499 U.S. 456, 466 (1981) ("[A]

legislature need not strike at all evils at the same time or in the same way."). I

                                                23
believe the General Assembly's failure to include all retired workers in its

comprehensive workers' compensation. scheme is this .underinclusiveness

doctrine at work. This incomplete application does not undermine the

legislature's goals or undercut the rationality of its distinction; it only

highlights its failu;re to perfectly tailor its interest across the board. But

ultimately, the fact that the line may have been drawn differently at one point

is a question more appropriately committed for legislative, rather than judicial,

consideration. See United States R.R. Ret. Bd. v. Fritz, 499 U.S. 166, 179)

(1980).

      To me, this distinction actually mitigates accusations of ageism; the

statutory distinction is more about benefit eligibility and less a.bout age

discrimination. A distinction between teachers and general workers

undoubtedly exists, but I cannot say it is an age-based classification. I am

unprepared and unwilling to evaluate these other equal-protection concerns

today. I do recognize the majority's concerns, but I am·uncomfortabledepai:ting

from Court precedent at this juncture.

      I must also further take issue that the majority opinion classifies KRS

342.730(4) as uncon1stitutional special legislation prohibited under Section 59

of the Kentucky Constitution. Unfortunately, like the teacher-retirement

exception, no party raised this issue at any point in the proceedings below nor

offered any arguments in their brief to us suggesting that this statute is special

legislation. Although we may affirm a lower-court ruling     for any reason
appearing in the record, case law and our own judicial prudence dictate that

                                          24
we should be reluctant to reverse a judgment for reasons not presented on

appeal or argued below. And with respect to workers' compensation, KRS

342.285 further guides us; if the issue is not raised before an Administrative

Law Judge, it may riot be   rais~d   later on appeal. Because this issue appears for

the first time in the majority opinion, we should refrain from addressing it

without at least inviting the parties to brief this new constitutional argument.

      I respectfully dissent as to these portions of the majority opinion.

      Hughes and VanMeter, JJ., join ..



COUNSEL FOR AP~ELLANT / APPELLEE MARSHALL PARKER:

Thomas Lawrence Hicks
Cetrulo, Mowery & Hicks, PSC

COUNSEL FOR APPELLEE/ APPELLANT WEBSTER COUNTY COAL:

Stanley Shields Dawson
Fulton & Devlin LLC

COUNSEL FOR APPELLEES MULTICARE MADISONVILLE,
DR. RICHARD HOLZKNECHT, DEACONESS HOSPITAL,
COOP HEALTH SERVICES:

John C. Morton ·
Morton Law LLC

UNREPRESENTED APPELLEES:

David D. Eggers, M.D.
Neurosurgical Consul tan ts
James M. Donley, M.D. ·
Center for Orthopedics
Wayne C. Cole, D.O.
Kelly L. Col.e, D.O.



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