Motion to Affirm — Slone v. Deskins Branch Coal Co.

Supreme Court, U. $.

FILED

JUL 21 1975

] Wicandl RODAK, sn_cuene

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1975

No. 74-1623

CHESTER SLONE, ETAL... _.-ss—(‘(‘i;tstsC~sC™S APPELLANTS

VS:

DESKINS BRANCH COAL

COMPANY, ET AL. aiienan _. APPELLEES

ON APPEAL FROM THE SPECIALLY CONSTITUTED

THREE JUDGE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF KENTUCKY

MOTION TO DISMISS OR AFFIRM

EARL M. CORNETT

General Counsel

Department of Labor

Plaza Towers

Frankfort, Kentucky 40601

CYRIL E. SHADOWEN

Assistant Counsel

Department of Labor

Legal Arts Building

200 South Seventh Street

Louisville, Kentucky 40202

Attorneys for Appellees

Hon. James R. Yocom,

Commissioner of Labor,

Commonwealth of Kentucky .

and Custodian of the Specia] Fund,

and Special Fund

INDEX

Page

STATEMENT OF THE

QUESTION PRESENTED ..............s00ee: 2

STATEMENT OF THE CASE ................ 2, 3

EEE 4-13

THE ISSUE RAISED IN THE INSTANT CASE

DOES NOT PRESENT A SUBSTANTIAL FEDERAL

QUESTION UNDER THE EQUAL PROTECTION

CLAUSE IN THE FOURTEENTH AMENDMENT 4

A. THE LEGISLATURE HAS BROAD POWERS TO

CLASSIFY PERSONS ELIGIBLE FOR WORK-

MEN’S COMPENSATION BENEFITS. THE SUB-

CLASSIFICATION IN THE INSTANT CASE OF

COAL MINERS ELIGIBLE FOR FEDERAL BLACK

LUNG BENEFITS IS VALID iephxpaece i

B. THE UNITED STATES CONGRESS HAS FOUND

THAT THE PECULIAR CIRCUMSTANCE AND

CONDITIONS OF COAL MINERS JUSTIFY SPE-

CIAL TREATMENT REGARDING COMPENSA-

TION FOR PNEUMOCONIOSIS . ........... 162

© GREAT WEIGHT SH®ULD BE GIVEN TO THE

RULING BY THE KENTUCKY COURT OF AP-

PEALS THAT THE LAW IN —s IS CON-

STITUTIONAL ....----. __--. . a

DET, cibdscgecccccocccocecccesoce 13-14

CERTIFICATE OF SERVICE ................ 15.16

PE hts eeesedoededecedccececeeeccoes la-2a

TABLE OF AUTHORITIES

American Coal Co. v. Allegany County, |

128 Md. 564, 98 Atl. 143 (1916) ................ 7

Dandridge v. Williams,

397 U.S. 471, 90 S. Ct. 153, 25 L. Ed.

ee CN ire 6'0'60k50h 6450445 dneeneeoedace 5, 6

Del Busto v. E. 1. Dupont De Nemours & Co.

167 Misc. 920, 5 N.Y.S. 2d 174 (1938)

aff’d 259 App. Div. 1070, 21 N.Y.S. 2d 417,

appeal denied, 284 N.Y. 817, 29N.E. 2d 975 .... 8,9

Fid Chapman v. Eastern Coal Corporation

Ky., 519 S.W. 2d 390 (Feb. 7, 1975) ............ 12

Geduldig v. Aiello,

41 L. Ed. 2d 256, 94 S. Ct.

Johnston v. Kennecott Copper Corp.,

160 C.C.A 417, 248 Fed. 407 (1918)

(affirming 1916) 5 Alaska 571 ............ ceccce 7

Lower Vein Coal Co. v. Industrial Board

255 U.S. 144, 65 L. Ed. 555, 41 Sup. Ct. Rep.

Se GED cuiddacendeudbecnseundedhceneeeiode 7

McGowan v. State of Maryland,

366 U.S. 420, 81 S.Ct. 1101; 6 L. Ed. 2d

(1974) ...... 9, 10

Bet GUD u0dn6edéuseneecuccencusweusbouiase 5

Middleton v. Texas Power & L. Co.,

249 U.S. 152, 63 L. Ed. 527, 39 S. Ct.

Sa. CED encewesnn ds csctudesseneseodaeesuns 5

New York Central Railroad Co. v. White,

243 U.S. 188, 61 L. Ed. 667, 37 S. Ct. 247 (1917) 4, 5

TABLE OF AUTHORITIES

CASES: Page

Otis Maggard v. International Harvester Company,

et al., Ky., 508 S.W. 2d 777, (Feb. 1, 1974 as modi-

fied on Denial of Rehearing April 12, 1974) .... 2, 3

Ross v. Moffitt,

...U.S....94S. Ct. 2437 (June 17, 1974) ...... 6,7

Scott v. Nashville Bridge Co,

143 Tenn. 86, 223 S.W. 844 Tenn. (1920) ........ 7

Ward & Gow v. Krinsky,

259 U.S. 503, 66 L. Fd 1033, 42 S. Ct.

SD CR, SEE HE cb cccscceseccsvoecesss 5

CONSTITUTION :

United States Constitution, Fourteenth

I yn ou 6 wactnneeneeens steenaae 3, 4, 12

STATUTES:

ERS S4BGSD 2. ccccccccesceces 4 and Appendix, p. la

Legislative Note ............ .... 2 and Appendix, p. 2a

Federal Coal Mine Health & Safety Act of 1969 .. 10, 12

Title 30 of U.S. Code Annotated Section 901 ........ 10

re 12

| err 11

a 11

| ae 11

| Pere 12

err 12

OTHER:

58 American Juris.

Workmen’s Compensation, Sec. 81, page 365 ...... 4

Larson, vol. 2, Sec. 65.40 .......eeeeeeeeereeees 7,8

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1975

No. 74-1623

CHESTER SLONE, ET AL. _. _....... APPELLANTS

VS:

DESKINS BRANCH COAL

COMPANY, ET AL. , APPELLEES

ON APPEAL FROM THE SPECIALLY CONSTITUTED

THREE JUDGE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF KENTUCKY

MOTION TO DISMISS OR AFFIRM

MAY IT PLEASE THE COURT:

Appellees move the Court to dismiss the appeal ‘here-

in or, in the alternative, to affirm the judgment of the

Specially Constituted Three Judge United States District

Court for the Eastern District of Kentucky on the ground

that it is manifest that the issues on which the decision

of the case depends do not present a substantial federal

question.

2

STATEMENT OF THE

QUESTION PRESENTED

IS THE DEFFERAL OF PAYMENT OF IN-

CREASED STATE WORKMEN’S COMPENSATION

BENEFITS TO COAL MINERS DISABLED BY

PNEUMOCONIOSIS, WHO, AS A CLASS, ARE THE

ONLY PERSONS ENTITLED TO FILE CLAIMS

FOR ADDITIONAL OCCUPATIONAL DISEASE

DISABILITY BENEFITS PROVIDED BY THE

FEDERAL COAL MINE HEALTH AND SAFETY

ACT OF 1969, AS AMENDED, A VIOLATION OF

RIGHTS GUARANTEED BY THE FOURTEENTH

AMENDMENT TO THE UNITED STATES CONSTI-

TUTION?

STATEMENT OF THE CASE

This case is an appeal from the Judgment of the special-

ly constituted Three Judge United States District Court

for the Eastern District of Kentucky dismissing appellants

action for declaratory and injunctive relief. The issue

presented is whether there is a denial of equal protection

under the fourteenth amendment to the United States

Constitution to coal miners in Kentucky applying for state

workmen’s compensation benefits because of the occupa-

tional disease of pneumoconiosis popularly called “black

lung.” In 1972 the Kentucky General Assembly raised

the level of compensation benefits for those persons cov-

ered by the provisions of the workinen’s compensation act

excepting only those persons covered by the Federal Black

Lung Act who apply for benefits after January 1, 1973.

The applicable statute is set out in the appendix herein,

p. 2a.

In the consolidated cases of Otis Maggard v. Inter-

3

National Harvester Company, et al., Ky. 508 S.W.2d 777,

(Feb. 1, 1974 as modified on Denial of Rehearing April

12, 1974) the Kentucky Court of Appeals rendered an

opinion as to the construction and application of the 1972

amendmenis to the Kentucky Workmen’s Compensation

law. One issue in that case concerned the amount of com-

pensation to be received by coal miners who became totally

disabled subsequent to January 1, 1973 from the occupa-

tional disease of coal worker’s pneumoconiosis, commonly

called ‘black lung.’’ The Court held that the 1972 amend-

ments which increased workmen’s compensation benefits

so as to provide $81.00 per week for life to workmen’s com-

pensation claimants suffering permanent total disability

was deferred as to that class of claimants suffering from

pneumoconiosis stating as follows at page 785:

“As we construe Section 37, the increased benefits

payable to black-lung claimants under the Kentucky

Workmen’s Compensation Act, as amended by Senate

Bill 184, are deferred for such a period of time as

there is in existence a federal black-lung program.”

The appellant herein, Chester Slone and others, allege

that the interpretations of the law made by the Kentucky

Court of Appeals in the Maggard case contravenes the

United States Constitution and is violative of the equal

protection clause of the Fourteenth Amendment because

only coal miners suffering from the occupational disease

of “black lung” were denied increased benefits under the

1972 amendments by the Kentucky General Assembly.

4

ARGUMENT

THE ISSUE RAISED IN THE INSTANT CASE

DOES NOT PRESENT A SUBSTANTIAL FEDERAL

QUESTION UNDER THE EQUAL PROTECTION

CLAUSE IN THE FOURTEENTH AMENDMENT.

A. THE LEGISLATURE HAS BROAD POWERS

TO CLASSIFY PERSONS ELIGIBLE FOR

WORKMEN’S COMPENSATION BENEFITS.

THE SUB-CLASSIFICATION IN THE INSTANT

CASE OF COAL MINERS ELIGIBLE FOR

FEDERAL BLACK LUNG BENEFITS IS VALID.

Compensation Acts are not ordinarily applicable to

all employments. Some are applicable only to certain oc-

cupations of a hazardous character. See 58 Am. Juris.

Workmen’s Compensation Sec. 81, page 635. Many states,

as is true in Kentucky, exempt domestic servants and per-

sons employed in agriculture. See KRS 342.650 in the

appendix, p. la. Many states impose a requirement that

there be a minimum number of persons working for a

single employer before there is coverage. Therefore, it is

abundantly clear that some employees, such as agricultural

workers, are discrminated against because they receive

no compensation benefits from work connected accidents

and diseases. The United States Supreme Court in the case

of New York Central Railroad Co. v. White, 243 U.S. 188,

61 L.Ed 667, 37 S.Ct. 247 (1917) as to the exclusion of

farm laborers and domestic servants from the scheme of

the New York statute at page 677 of 61 L. Ed. stated:

“Manifestly, this cannot be judically declared to be

an arbitrary classification, since it reasonably may be

5

considered that the risks inherent in these occupations

are exceptionally patent, simple, and familiar.”

In Middleton v. Texas Power & L. Co., 249 U.S. 152,

63 L.Ed. 527, 39 S.Ct. 227 (1919), the Court upheld the

exclusion of gin laborers on the same reasoning as applied

to farm laborers.

In Ward & Gow v. Krinsky, 259 U.S. 503, 66 L.Ed.

1033, 42 S.Ct. 529 (1922), 28 ALR 1207, the Court stated

at page 1041 of 66 L.Ed. as follows:

” There is a strong presumption that a legislature

understands and correctly appreciates the needs of

its own people; that its laws are directed to problems

made manifest by experience; and that its discrimina-

tions are based upon adequate grounds.” Citing Mid-

dleton v. Texas Power & L. Co., supra.

The Court in the case of McGowan v. State of Mary-

land 366 US 420, 81S. Ct. 1101; 6 L. Ed. 2d 393 (1961)

stated at page 399 of 6 L. Ed. 2d:

: State legislatures are presumed to have acted

within their constitutional power despite the fact that,

in practice, their laws result in some inequalty. A sta-

tutory discrimination will not be set aside if any state

of facts reasonably may be conceived to justify

it. 4

Mr. Justice Potter Stewart, speaking for the Supreme

Court majority in Dandridge v Williams, 397 U.S. 471,

90 S. Ct. 153, 25 L. Ed. 2d 491 (1970) at page 501 of 25

L. Ed. 2d stated as follows:

“In the area of economics and social welfare, a State

6

does not violate the Equal Protection clause merely

because the classifications made by its laws are imper-

fect. If the classification has some ‘reasonable basis’,

it does not offend the Constitution simply because the

classification ‘is not made with mathematical nicety

or because in practice it results in some inequality.’

Lindsley vy. Natural Carbonic Gas Co., 220 U.S. 61,

55 L. Ed. 369, 31 S. Ct. 337 ‘The problems of gov-

ernment are practical ones and may justify, if they

do not require, rough accommodations — illogical,

it may be and unscientific.’Metropolis Theatre Co. v.

City of Chicago, 228 U.S. 61, 69-70, 57, L.Ed. 730, 734,

33 S. Ct. 441. ‘A statutory discrimination will not

be set aside if any state of facts reasonably may be

conceived to justify it.’ McGowan v. Maryland, 366

U.S. 420, 426, 1105, 6 L Ed. 2d 393, 399, 81 S. Ct.

1101.

a

In the case of Ross v. Moffitt, ...U.S...., 94

S. Ct. 2437 (June 17, 1974) at page 2444 of 94 S. Ct.

the Court stated:

“Despite the tendency of all rights ‘to declare them-

selves absolute to their logical extreme,’ there are

obviously limits beyond which the equal protection

analysis may not be pressed without doing violence

to principles recognized in other decisions of this

Court. The Fourteenth Amendment ‘does not require

absolute equality or precisely equal advantages,’ San

Antonio Independent School District v. Rodriquez,

411 U.S. 1, 24, 93 S Ct. 1278, 1291, 36 L. Ed. 2d

16 (1973), nor does it require the State to ‘equalize

economic conditions.’ Griffin v. Illinois, supra, 351

a ee

7

U.S. at 23, 76 S. Ct. at 592 (Frankfurter, J., concur-

ring). It does require that the state appellant system

be ‘free of unreasonable distinctions,’ Rinaldi v.

Yaeger, 384 U.S. 305, 310, 86, S. Ct. 1497, 1500, 16

L. Ed. 2d 577 (1966) .. .”

There are several court decisions sustaining legislation

which put the coal mining industry in a separate class as

to State Workmen’s Compensation Laws In the case of

Johnston v. Kennecott Copper Corp., (1918) 160 C.C.A.

417, 248 Fed. 407 (affirming 1916) 5 Alaska 571, the

Court upheld the constitutionality, as against the objection

of class legislation, of the Alaska Workmen’s Compensa-

tion Law, which in terms applied only to mining concerns

employing five or more persons. The Court noted that

mining is the one great industry of Alaska.

In the case of Lower Vein Coal Co. v. Industrial

Board, (1921) 255 U.S. 144, 65 L. Ed. 555, 41 Sup. Ct.

Rep. 252 this Court sustained the Constitutionality of the

Indiana Workmen’s Compensation law where the law was

compulsory as to the coal mining industry but elective as

to other occupations.

See also, American Coal Co. v. Allegany County

(1916) 128 Md. 564, 98 Atl. 143 (1916) applying only

to those engaged in mining coal and clay in two counties

which the court ruled to be constituticnal.

In the case of Scott v. Nashville Bridge Co. 143 Tenn.

86, 223 S.W. 844 Tenn. (1920) the Court sustained the

constitutionality of the Workmen’s Compensation Law

that exempted coal operators and their employees.

Larson at vol. 2 Sec. 65.40 notes an instance where

8

an occupational disease statute permits an award for sili-

cosis only when it has reached the stage of total disability,

and that an employee suffering from partially-disabling

silicosis cannot sue at common law citing a New York

case, Del Busto v. E. I. Dupont DeNemours & Co., 167

Misc. 920, 5 N.Y.S. 2d 174 (1938) aff’d 259 App. Div.

1070, 21 N.Y.S. 2d 417, appeal denied, 284 N.Y. 817, 29

N.E. 2d 975. In that case the Supreme Court of Niagara

County in 5 N.Y.S. 2d 174 held that the compensation act

did not violate the fourteenth amendment to the Constitu-

tion of the United States nor Section 6 of Article 1 of the

Constitution of the State of New York.

The questions before the Court were first, whether

or not the legislature took away from the plaintiff his

common law right of damages for partial disability: and

second, if such right of action was taken away, was it done

without providing another or different remedy, and thus

in violation of the Constitution of the United States and

of the State of New York.

In discussing the intent of the legislature to leave

to plaintiff the right to sue at common law for partial

disability the court stated at 5 N.Y.S. 2d page 176 that

it was:

ia

of the opinion that after further study of

the burden of the disease upon industry, the legisla-

ture decided that the employer should bear the effect

of total disability and that the employee should bear

the burden arising from partial disability.

In a per curiam opinion, the Supreme Court, Appel-

lant Division, Fourth Department 259 App. Div. 1070, 21

9

N.Y.S. 2d 417 affirmed the lower court, appeal denied

29 N.E. 2d 975.

Thus it is to be noted that the courts have consistently

held that the mining industry and its workers can be

treated as a separate class under state workmen’s com-

pensation laws and have also held that workers’ suffering

from silicosis can be put in a special classification for com-

pensation purposes.

This Court should take judicial notice of the fact

during the current energy crisis that Kentucky for some

years has been the leading coal producing state in the

nation. Because of this fact and because of the peculair

working conditions of the coal industry and because the

occupational disease of pneumoconiosis is developed only

after many years of exposure and because of the multitude

of compensation claims being filed thereunder during the

years 1972 when the law in question was enacted, it is

manifest that very special conditions existed which would

justify a special classification by the Kentucky legislature

in regard to coal miners.

See also the case of Geduldig v. Aiello, 41 L. Ed. 2d

256, 94 S. Ct. (1974) for one of the

most recent United States Supreme Court cases on the

subject of the Equal Protection Clause. In that case the

state of California had a disability insurance program for

private employees temporarily disabled from working by

an injury or illness not covered by workmen’s compensa-

tion. It was financed by an assessment of one percent of

the employee’s salary. The California program insured

against abnormal pregnancies but normal pregnancies were

excluded. The law’s constitutionality was challenged by a

10

woman having a normal pregnancy. This Court held that

a state is not required by the Equal Protection Clause to

sacrifice the self supporting nature of the program, reduce

the benefits payable for covered disabilities, or increase the

maximum employee contribution rate just to provide pro-

tection against another risk of disability, such as normal

pregnancy The Court declared that the equal protection

clause does not require that a State must choose between

attacking every aspect of a problem or not attacking the

problem at all.

It is interesting to note that California under the

pregnancy classification had two sub.classes: Normal

pregnancies and abnormal pregnancies. (ne was com-

pensable, the other non compensable. In Kentucky, coal

miners suffering from injuries have a different classifica-

tion than coal miners suffering from black lung. This is

not an invidious classification in view of the legislatures

attempt to unify the joint state-federal program. Congress

itself had first created the separate classification for coal

miners suffering from black lung when it passed the Fed-

eral Coal Mine Health and Safety Act of 1969.

B. THE UNITED STATES CONGRESS HAS

FOUND THAT THE PECULIAR CIRCUM-

STANCE AND CONDITIONS OF COAL MINERS

JUSTIFY SPECIAL TREATMENT REGARD-

ING COMPENSATION FOR PNEUMOCONIO-

The Congressional findings and declaration of pur-

pose in reference to Black Lung Benefits are set out in

Section 901 of Title 30 of U.S. Code Annotated and the

11

1972 amendments thereto. Their purpose was to insure

that coal miners and their dependants got adequate bene-

fits under the federal law, in cooperation with the States,

for deatii or disabilities due to pneumoconiosis.

Section 931 of the federal act as amended in 1972,

provides as follows:

“(a) On and after January 1, 1974, any claim for

benefits for death or total disability due to pneu-

mgeoniosis shall be filed pursuant to the applicable

state workmen’s compensation law, except that

during any period when miners or their surviving

widows, children, parents, brothers, or sisters, as

the case may be, are not covered by a State work-

men’s Compensation law which provides adequate

coverage for pneumoconiosis they shall be entitled

to claim benefits under this part.

The provisions of sub section “b,” then make pro-

visions for the Secretary to publish in the federal reg-

ister a listing of those states providing adequate cov-

erage and sets forth certain criteria that is to be used

by the Secretary as guidelines in making his determina-

tion.

Section 932 (a) as amended in 1972, provides that

during any period after December 31, 1973, that the

individual coal operators, in states not in compliance

as to adequate coverage are subject to the provisions

of Public Law 803, 69th Congress (44 Stat. 1424 ap-

proved March 4, 1927) as amended. [The Longshores-

men Act].

12

Section 932 (g) provides that any benefits payable

to disabled miners under the provisions of the Long-

shoresmen Act shall be reduced by the amount of any

compensation received under a State workmen’s com-

pensation law because of death or disability due to pneu-

moconiosis.

Section 933 requires coal operators to qualify

through insurance companies or as self-insurers to

meet all black lung compensation claims in states that

are not in compliance with the federal requirements.

Neither Kentucky nor any other state has met those

requirements.

Section 902 (c) as amended in 1972, gives jurisdic-

tion to the Secretary of Labor after January 1, 1974, in

reference to administering the federal black lung pro-

gram, part C.

C. GREAT WEIGHT SHOULD BE GIVEN TO THE

RULING BY THE KENTUCKY COURT OF

APPEALS THAT THE LAW IN QUESTION IS

CONSTITUTIONAL.

The same counsel prosecuting the present appeal

of the class action suit filed in the United States Dis-

trict Court for the Eastern District of Kentucky rep-

resented a Kentucky coal miner who claimed a viola-

tion of his rights under the fourteenth amendment to

the United States Constitution in the case of Fid Chapman

v. Eastern Coal Corporation, Ky., 519 S.W. 2d 390 (Feb.

7, 1975). No Petition for a Writ of Certiorari was filed

in that case and the decision ot the Kentucky Court of

13

Appeals holding the law constitutional has become

final. The Kentucky Court of Appeals in that case

traced the legislative and medical history of compen-

sation to coal miners for occupational diseases and

noted as follows at page 394:

“...all this we point out only to illustrate that sci-

ence, history and politics all have combined to put

black lung in a different class from other work con-

nected disabilities .. .”

CONCLUSION

It is clear that the Kentucky legislature could deny

benefits altogether for coal miners for pneumoconiosis

or black lung. If this is so it would seem that such ben-

efits could be frozen at present levels, In the area of

economic and social welfare the states have very broad

powers and the constitution is not offended simply be-

cause there is some inequality of benefits. The Ken-

tucky Court of Appeals has found that medical science,

history and politics have all combined to put black lung

in a different class from other work connected disabili- —

14

ties. The law being settled on this issue, there is no

substantial federal question and the judgment herein

should be affirmed.

Respectfully submitted,

_—

EARL M. CORNETT

General Counsel

Department of Labor

Plaza Towers

Frankfort, Kentucky 40601

CYRIL E. SHADOWEN

Assistant Counsel

Department of Labor

Legal Arts Building

200 South Seventh Street

Louisville, Kentucky 40202

Attorneys for Appellees

Hon. James R. Yocom,

Commissioner of Labor,

Commonwealth of Kentucky

and Custodian of the Special Fund,

and Special Fund

15

CERTIFICATE OF SERVICE

I, Cyril E. Shadowen, one of counsel for appel-

lees, Hon. James R, Yocom, Commissioner of Labor,

Commonwealth of Kentucky and Custodian of the Spe-

oF es Special Fund, do hereby certify that on the

j2“ day of July, 1975, I served copies of the forego-

ing Motion to Dismiss or Affirm on the parties hereto

as follows:

1. On appellants Chester Slone, Abel Chapman,

Jr., Phillip Anderson, Cledis Kinney by depositing

three copies each of same, postage prepaid, addressed

to counsel for appellants C. Kilmer Combs, P. O. Box

112, Pikeville, Kentucky 41501

2. On Deskins Branch Coal Company, Kimper

Kentucky; on Kentucky-Elkhorn Coals, Inc., Mc-

Dowell, Kentucky; and on Kentucky Carbon Corpora-

tion, Phelps, Kentucky by depositing three copies each

of same, postage prepaid, addressed to their counsel,

Hon. William J. Baird, Baird & Baird, P. O. Box 351,

Pikeville, Kentucky 41501.

3. On Shelby T. Denton, Chairman, Alfred A.

Naff, George B. Simpson, Clyde Mullins, and Glen

Schilling, Members comprising the Workmen’s Com-

pensation Board of Kentucky, and Ed W. Hancock,

Attorney General of Kentucky, by depositing in a

United States Post Office three copies thereof in a duly

addressed envelope with first class postage prepaid

addressed to Thomas R. Emerson, Assistant Attorney

16

General, Capitol Building, Frankfort, Kentucky 40601,

their attorney of record.

4. All parties required to be served have been

served.

CYRIL E. SHADOWEN

Attorney for Appellees

Hon. James R. Yocom,

Commissioner of Labor,

Commonwealth of Kentucky

and Custodian of the Special Fund

and Special Fund

APPENDIX

la

APPENDIX

Applicable Kentucky revised statutes as amended in

1972.

¢

342.650 Exemptions. The following employes are

exempt from the coverage of this chapter:

(1) Any person employed as a domestic servant

in a private home by an employer who has less than two

employes each regularly employed 40 or more hours a

week in such employment.

(2) Any person employed, for not exceeding 20

consecutive work days, to do maintenance, repair, re-

modelling, or similar work in or about the private home

of the employer, or if the employer has no other em-

ployes subject to this chapter, in or about the pre-

mises where such employer carries on his trade, busi-

ness or profession.

(3) Any person performing services in return for

aid or sustenance only, received from any religious or

charitable organization.

(4) Any person for whom a rule of liability for

injury or death is provided by the laws of the United

States, except those persons covered under Title IV,

Public Law 91-173, 91st Congress, commonly referred

to as the Black Lung Benefits of the Federal Coal Mine

Health and Safety Act of 1969, or as amended.

(5) Any person employed in agriculture.

(6) Any person who would otherwise be coy-

2a

ered but who elects not to be covered in accordance

with the rules and regulations promulgated by the

Board. (1972, c. 78, § 5).

*“NOTE: Effective date. This Act shall be effec-

tive on January 1, 1973; and effective for all claims

filed on and after January 1, 1973; provided, how-

ever, that in the event federal law specifies that

claims covered by provisions of this Act shall be

filed with a federal agency such claims shall con-

tinue to be held as required by the federal law

until repeal or expiration of the federal law re-

quiring same; then, in that event, the increase in

benefits provided herein shall not apply to those

claims where benefits are awarded under the fed-

eral law. The benefits under the present law KRS

Chapter 342 shall apply to those claims. (1972, c.

78, § 37; effective date clause, not compiled.)