                                                     RENDERED : FEBRUARY 21, 2008
                                                                 TO BE PUBLISHED


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                                  2007-SC-000159-WC



MORSEY, INC.                                                                APPELLANT


                          ON APPEAL FROM COURT OF APPEALS
V                                 2006-CA-000895-WC
                         WORKERS' COMPENSATION NO . 04-84884


CYNTHIA FRAZIER, WIDOW OF
DANIEL FRAZIER, DECEASED ;
HON. IRENE STEEN,
ADMINISTRATIVE LAW JUDGE ;
KENTUCKY WORKERS' COMPENSATION BOARD
                                                                            APPELLEES


                                OPINION OF THE COURT

                             REVERSING AND REMANDING

       KRS 342.730(4) requires all income benefits payable to spouses and

dependents of deceased workers to terminate "when such spouses and dependents

qualify for Social Security benefits by reason of the fact that the worker upon whose

earnings entitlement is based would have qualified for normal old-age Social Security

retirement benefits ."

       An Administrative Law Judge (ALJ) determined that Daniel Frazier's death was

work-related and that KRS 342 .730(4) requires Cynthia Frazier's income benefits to

terminate on the date that Daniel would have turned age 66 . The Workers'

Compensation Board reversed, holding that the statute terminates her benefits when
 Cynthia's benefits on the date that she would have qualified for Social Security benefits

 under 42 U .S .C. § 402(b) as Daniel's wife. KRS 342 .730(4) terminates benefits when

 spouses and dependents "qualify" for Social Security benefits ; therefore, we reverse .

        Daniel was born on January 15, 1943 . He worked for the defendant-employer as

 a pipe fitter and injured his foot on June 7, 2004, in the course of his work. Daniel died

on June 17, 2004, as a consequence of the injury . The parties did not dispute that he

would have qualified for normal old-age Social Security benefits on January 15, 2009,

at age 66, had he lived that long .

       At the death of a worker who is or would have been entitled to income benefits,

KRS 342 .730(3) and KRS 342.750(1) permit benefits to be paid to certain other

individuals. Brusman v. Newport Steel Corp . , 17 S.W .3d 514 (Ky. 2000), indicates that

benefits under either statute are awarded to a widow, widower, or child under the age of

18 without regard to dependency . Whether payable under either statute, income

benefits are subject to KRS 342.730(4).

       KRS 342 .730(3) applies when a worker who receives permanent income benefits

dies before the award expires . It entitles the worker's widow or widower and children

under the age of 18 or incapable of self-support to receive portions of the worker's

income benefit . If none survive, then actually dependent parents or certain other

relatives become entitled . Upon remarriage, the widow or widower may receive up to

two years of unpaid benefits in a lump sum.

       KRS: 342.750(1) applies when a worker's injury results in death . It entitles the

surviving widow or widower, children under the age of 18 or older children who are



 KRS 342 .750(7) provides that all death benefits, except the lump sum payable under
KRS 342.750(6), are subject to the limitations found in KRS 342.730(4).
                                            2
incapable of self-support or actually dependent, and certain other actually dependent

relatives to receive percentages of the worker's average weekly wage. Benefits to a

widow or widower terminate upon death or with a lump sum upon remarriage . Benefits

to children or other relatives terminate with death, marriage, reaching the age of 18

(except in the case of a parent or grandparent), becoming capable of self-support, or no

longer being actually dependent .

      Cynthia was born on February 15, 1950, and had been married to Daniel for

many years when he was injured . As Daniel's widow, Cynthia received an agreed

award of death benefits under KRS 342.750(1) that was subject to termination under

KRS 342 .730(4) or under KRS 342 .750(1)(c) if she remarried . The couple's child,

Brooke Frazier, was under the age of 18 on the date of the accident but married on

February 12, 2005 . She received an agreed award under KRS 342.750(1) that

terminated under KRS 342.750(1)(e) at her marriage . The only contested issue

concerned the date when KRS 342.730(4) required Cynthia's benefits to be terminated .

      KRS 342.730(4) states as follows:

             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. 30 1 to
             1397f, or two (2) 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 when such spouses and
             dependents qualify for benefits under the United States
             Social Security Act by reason of the fact that the worker
             upon whose earnings entitlement is based would have
             qualified for normal old-age Social Security retirement
             benefits . (emphasis added) .

      In McDowell v. Jackson Energy RECC , 84 S.W. 3d 71 (Ky. 2002), the court
determined that the first sentence of KRS 342.730(4) terminates workers'

compensation income benefits when the recipient qualifies for normal old-age Social

Security retirement benefits and that the provision is constitutional . This appeal

concerns the second sentence. The Court of Appeals determined that it terminates

benefits when Cynthia would have qualified as Daniel's wife.

        The employer relies on McDowell v. Jackson Energy RECC, supra , and

Autozone, Inc. v. Brewer, 127 S.W .3d 653 (Ky. 2004), which concerned the present

version of KRS 342.730(4). It also relies on Leeco, Inc. v. Crabtree , 966 S.W .2d 951

(Ky. 1998), and Wynn v. (bold, Inc. , 969 S.W.2d 695 (Ky. 1998), which concerned a

1994 version of KRS 342.730(4) known as the "tier down ." The employer argues that

the plain language of KRS 342.730(4) and the principle of avoiding a duplication of

income-replacement benefits require Cynthia's benefits to terminate at age 60, when

she qualifies for Social Security benefits as Daniel's widow.

       Cynthia argues that the employer attempts to rewrite the statute to terminate all

workers' compensation income benefits when spouses and dependents qualify for

Social Security benefits by reason of the fact that the worker upon whose earnings their

entitlement is based has died . She asserts that this interpretation "would effectively

eliminate all benefits for the surviving children of any [worker] killed on the job,"

nullifying KRS 342 .750(1)(b), (d), and (e). She also asserts that she would experience

a gap in benefits because her workers' compensation benefits would terminate on

January 15; 2009, when Daniel would have reached age 66, but that she would-not

begin to receive Social Security benefits as his widow until February 25, 2010, the

month after she reaches age 60. We disagree on all counts.
        In Wynn v. (bold, SUM, and in McDowell v. Jackson Energy RECC, supra, the

court noted that KRS 342.730(4) reduces the cost of maintaining workers'

compensation coverage and improves the Commonwealth's economic climate by

avoiding a duplication of income replacement benefits . The McDowell court

acknowledged, however, that the statute operates imperfectly, particularly in instances

where the workers' compensation benefit that is terminated exceeds the Social Security

benefit . Subsequently in Autozone, Inc. v. Brewer, supra , the court determined that the

first sentence of KRS 342 .730(4) applies only to the awards of workers who qualify for

normal old-age Social Security benefits.

       In Autozone, supra, the court noted that the goal of statutory construction is to

effectuate the legislature's intent and that a clear and unambiguous statute requires no

interpretation unless the plain meaning of the words would lead to an absurd result. It

determined that KRS 342.730(4)'s first sentence refers only to the awards of workers

who qualify for normal old-age Social Security benefits . Thus, it rejected an argument

that KRS 342 .730(4) applies to federal pension benefits or other types of pension

benefits to which employers contribute . Noting that the provision furthers the legislative

goal, the court relied on Board of Education of Nelson County v. Lawrence, Ky. 375

S .W.2d 830, 831 (Ky. 1963), and refused to ignore the statute's plain meaning simply

because a different meaning might further or more efficiently accomplish the legislative

purpose. Also relevant presently are the principles found in Ross v. Board of Education

of Jefferson County , 196 Ky. 366, 244 S.W. 793, 796 (1922) and in Commonwealth v.

Reynolds, 136 S .W.3d 442, 445 (Ky. 2004), that the court must seek to harmonize all

provisions of a statute and neither add to nor subtract from its language.
        Finding the second sentence of KRS 342 .730(4) to be unambiguous, the ALJ

determined that the termination date for a surviving spouse is the same as what the

worker's termination date would have been had he lived to that point. By focusing on

the phrase "the worker upon whose earnings entitlement is based," the ALJ erred by

failing to consider the effect of the words that precede and follow the phrase. The

second sentence of KRS 342.730(4) terminates benefits "when such spouses and

dependents qualify for benefits under the United States Social Security Act by reason of

the fact that the worker upon whose earnings entitlement is based would have qualified

for normal old-age Social Security retirement benefits ." (emphasis added). In other

words, it, terminates workers' compensation benefits to a surviving spouse or dependent

when the recipient qualifies for benefits under the Social Security Act because the

worker would have qualified for normal old-age retirement benefits under the Act.

       Like the ALJ, the Court of Appeals found KRS 342 .730(4) to be unambiguous. It

construed the statute as follows:

              Cynthia is correct that the Legislature triggered the benefits
              termination date to the date the spouse or dependent would
              have qualified for Social Security benefits based upon the
              earnings entitlement of the worker who would have qualified
              for normal old-age Social Security retirement benefits, if not
              for the worker's death. By selecting this date, the
              Legislature recognized the contingency of the worker having
              died as a result of a work-related injury and the fact that he
              would not qualify for normal old-age Social Security
              retirement benefits because of his death . Any other
              interpretation of KRS 342 .730(4) results in the language
              "would have qualified" being meaningless. (emphasis
              added).

Having found KRS 342.730(4) to be unambiguous, the court erred by substituting the

phrase "would have qualified" for the word "qualify" when referring to the date for
terminating benefits to spouses and dependents . Although Daniel would have qualified

for normal old-age Social Security retirement benefits, had he lived, Cynthia will never

qualify for benefits as his wife under 42 U .S .C. 402(b).

       Implicit in the General Assembly's reliance on the United States Social Security

Act when enacting KRS 342.730(4) is a presumption that it knew what the Act provides .

42 U .S.C. § 402(x) entitles a worker who has contributed earnings to the Social

Security insurance program for the number of quarters requisite to be "fully insured" to

receive old-age benefits . The worker qualifies for a reduced monthly benefit at age 62

but qualifies for a normal benefit by waiting until "retirement age," which in Daniel's case

was age 66 . Although the first sentence of KRS 342.730(4) terminates a fully insured

worker's income benefits at retirement age, a worker who dies before reaching that age

will never qualify for normal old-age Social Security retirement benefits . The second

sentence of KRS 342 .730(4) presumes that such a worker would have qualified but

died before doing so. Although it controls the duration of continuation benefits awarded

under KRS 342 .730(3) and of death benefits awarded under KRS 342 .750(1), it does

not base their duration on the date that the worker would have qualified for normal old-

age Social Security retirement benefits. Thus, Cynthia's income benefits do not

terminate on the date that Daniel would have reached age 66.

      42 U.S.C. §§ 402(b) - (h) entitle certain individuals other than the worker to

receive Social Security benefits in their own right but based on the worker's earnings .

Seven classes of recipients qualify for Social Security benefits based on contributions

from another individual's earnings . Five of the seven qualify because the worker who

contributed has died . Two of them qualify at the worker's death. Three of them qualify
 at other points in time and are the only classes that qualify "by reason of the fact that

 the worker upon whose earnings entitlement is based would have qualified for normal

 old-age Social Security retirement benefits ." The remaining two classes qualify

 because the worker is alive and entitled to old-age or disability benefits.

        42 U.S .C. § 402(d) entitles a dependent child of a fully or currently insured

worker to receive benefits when the worker dies. Likewise, 42 U .S .C . § 402(g) entitles

the surviving spouse who cares for a dependent child and is not entitled to benefits as a

widow or widower to receive Social Security benefits when the fully or currently insured

worker dies. Social Security benefits to both classes cease when the child dies,

marries, reaches the age of 18 (or 19 if a full-time elementary or secondary school

student), or is no longer disabled . Under the definitions found in 42 U .S .C. § 414(a)

and (b), a "currently insured" worker is not necessarily "fully insured" and entitled to

benefits under 42 U.S .C. § 402(1). Thus, a dependent child and a surviving spouse

who cares for such a child both qualify for Social Security benefits, but they do so under

a standard less than "by reason of the fact that the worker upon whose earnings

entitlement is based would have qualified for normal old-age Social Security retirement

benefits ." Therefore, KRS 342.730(4) does not terminate worker's compensation

benefits when such individuals qualify for Social Security benefits . Nor does it nullify

KRS 342 .750(1)(b), (d), and (e).

       42 U.S .C. § 402(e) entitles a widow of a fully insured worker and 42 U.S .C. § 402

(f) entitles a widower of a fully insured worker to receive benefits at age 60 . Likewise,

42 U.S .C. § 402(h) entitles certain dependent parents of a fully insured worker who dies

to receive benefits at age 62 . Because 42 U.S .C. § 402(e), (f), and (h) require the
 worker to be fully insured, widows, widowers, and certain dependent parents qualify for

 Social Security benefits "by reason of the fact that the worker upon whose earnings

 entitlement is based would have qualified for normal old-age Social Security retirement

 benefits ." KRS 342.730(4) limits the duration of awards made to members of these

three classes.

        The final two classes of recipients qualify for Social Security benefits if the

worker is entitled to old-age or disability insurance benefits . 42 U.S.C. § 402(b) entitles

the worker's wife to receive Social Security benefits at age 62 and 42 U .S .C. § 402(c)

entitles the worker's husband to receive Social Security benefits at age 62.

Qualification for benefits under 42 U.S .C. § 402(b) or (c) cannot affect the duration of

awards made under KRS 342.730(3) or KRS 342.750(1) because such awards are

premised on the worker's death and because qualification for Social Security benefits

as a wife or husband terminates under 42 U.S.C. §§ 402(b)(1)(F) and (c)(1)(F) upon the

worker's death . Cynthia will never, qualify for Social Security benefits as Daniel's wife . .

       As noted in Layne v. Newberg , 841 S.W.2d 181 (Ky. 1992) and Plummer v.

Sharondale Coal Corp. , 834 S .W .2d 708 (Ky. App. 1992), Chapter 342 does not define

the term "widow," but the term refers to a woman whose husband is dead and who has

not remarried. For our present purposes, this definition is consistent with the definition

of widow found in 42 U .S.C. § 416(c) . Daniel died as a consequence of his injury;

therefore, Cynthia is entitled to income benefits under KRS 342 .750(1), as his widow,

but subject to KRS 342 .750(1)(c), if she remarries. The award will terminate under KRS

342.730(4) when she qualifies under 42 U.S.C. § 402(e) at age 60 for Social Security

benefits as Daniel's widow.
       The decision of the Court of Appeals is reversed, and the claim is remanded to

the ALJ far the entry of an award that is consistent with KRS 342 .730(4) .

       All sitting . All concur.




COUNSEL FOR APPELLANT,
MORSEY, INC. :

RICHARD CHRISTION HUTSON
WHITLOW, ROBERTS, HOUSTON & STAUB, PLLC
300 BROADWAY STREET
P .O . BOX 995
PADUCAH, KY 42002-0995


COUNSEL FOR APPELLEE,
CYNTHIA FRAZIER, WIDOW OF DANIEL FRAZIER, DECEASED :

CRAIG HOUSMAN
109 SOUTH FOURTH STREET
P.O. BOX 1196
PADUCAH, KY 42002-1196
