Transport Motor Express, Inc. v. Finn

LUKOWSKY, Justice,

concurring.

I concur in the result reached by my brothers in this case. However, I believe it necessary that I disassociate myself from the process of intellectual sophistry by which my colleagues write the following language out of the following statutes.

KRS 342.620(9) (1972): An individual entitled to benefits under permanent partial disability shall be entitled to either his lost wages due to his injury, or body functional disability benefits, whichever is greater.

KRS 342.730(l)(b) (1972): . . . provided, however, the individual entitled to benefits under permanent partial disability shall be entitled to compensation based on lost wages or body functional disability benefits, whichever is greater.

It would have been enough to dispose of the gratuitous comment of the Court of Appeals by pointing out that these statutes apply only to the computation of benefits for permanent partial disability. The statutes do not provide for dual theories of computing benefits in total disability cases. KRS 342.730(l)(a) (1972).

The vitality of the quoted statutory language and the interpretation we placed on it in Apache Coal Co. v. Fuller, Ky., 541 S.W.2d 933 (1976) can not be philosophized away. The mandate in Apache, supra, was issued on November 12,1976. In December of 1976 the legislature saw fit to reenact KRS 342.730(l)(b). The only significant change made was the addition of the following to the previously quoted language, “. . notwithstanding any section of KRS Chapter 342 to the contrary, there shall be no minimum weekly income benefit for permanent partial disability.”

It is a fundamental principle of Kentucky law that when a statute has been construed by a court of last resort and the legislature subsequently has substantially reenacted the statute, it will be deemed to have adopted the construction theretofore placed upon the statute by the court unless the contrary is clearly shown by the language of the new enactment. Brown v. City of Harrodsburg, Ky., 252 S.W.2d 44 (1952); Falender v. Hankins, 296 Ky. 396 , 177 S.W.2d 382 (1944); Coleman v. Inland Gas Corporation, 231 Ky. 637 , 21 S.W.2d 1030 (1929).

The change effected by the 1976 amendment was the elimination of the minimum weekly income benefits in permanent partial disability cases. Certainly, the change expressed no legislative disavowal of the dual theories of computing benefits in permanent partial disability cases. Consequently, the reenactment reenforces the dual theories of computation set forth in the statute and applied in Apache, supra.

Apache, supra, may have been an invitation to a legislative dinner party 1 held in December, 1976, but it in no way determined the courses to be eaten by those attending. That the diners chose to consume the entré of minimum weekly income benefit and decline the dessert of dual theories of compensation was a matter of legitimate legislative choice. The people of this Commonwealth, acting through their duly elected legislators, have the right to select *286 an illogical, expensive or even foolish menu of workmen’s compensation. This court is not a maitre d’hotel with power to change the menu on other than constitutional grounds.

Jn the last analysis the palate of the people determines the legislative diet. As President Ulysses S. Grant put it in his Inaugural Address on March 4, 1869, “I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution.” The continued application of the dual theories of compensation caused the legislature to eat the rejected dessert at their session in 1978 when they amended KRS 342.620(9) and KRS 342.730(l)(b) by striking the quoted language.

The constitutional ring is closed. The legislature gave. The legislature has taken away. This court should respect the function of the legislature. As the Supreme Court of the United States wrote in Tennessee Valley Authority v. Hill, 437 U.S. 153, 194-195 , 98 S.Ct. 2279, 2301-02 , 57 L.Ed.2d 117, 146-47 (1978):

“Here we are urged to view the . Act ‘reasonably,’ and hence shape a remedy ‘that accords with some modicum of commonsense and the public weal.’ (citation omitted) But is that our function? . Congress has spoken . Our individual appraisal of the wisdom or unwisdom of a particular course consciously selected by the Congress is to be put aside in the process of interpreting a statute. Once the meaning of an enactment is discerned and its constitutionality determined, the judicial process comes to an end. We do not sit as a committee of review, nor are we vested with the power of veto. . We agree with the Court of Appeals that in our constitutional system the commitment to the separation of powers is too fundamental for us to pre-empt (sic) congressional action by judicially decreeing what accords with ‘commonsense and the public weal.’ Our Constitution vests such responsibilities in the political Branches.”

We should not attempt to erase vested substantive rights by retroactively applying these amendments under the guise of statutory interpretation. Cantrell v. Stambaugh, Ky., 420 S.W.2d 677 (1967).

. Kentucky Law Survey — Workmen’s Compensation, 66 Ky.L.J. 509 (1978).