Petition — Chief Paduke Distributing Co. v. Wilson

d mene

| sort, Usk |

! “FE TILED e|

& ee |

| MICHAGL ROSAK, JR., CLERK

SUPREME —_ OF THE UNITED STATES

79 -46¢

CHIEF PADUKE caiemciiaaees COM. ~

PANY ‘ ‘ ° - Petitioner

versus

JAMES LYNEL WILSON,

KENTUCKY WORKMEN’S COMPENSA-

TION BOARD, and

JAMES R. YOCOM, Commissioner of Labor

and Custodian of the SPECIAL FUND - Respondents

he

ida FOR Writ OF CERTIORARI ah

THE COURT OF APPEALS OF KENTUCKY

SUPREME COURT OF KENTUCKY

No. 79-80-224-D

COURT OF APPEALS OF KENTUCKY

No. 78-CA-617-MR

EARLE T. SHOUP

Citizens Bank Building

Paducah, Kentucky 42001

Attorney for Petitioner

WESTERFIELD-BONTE CO., 619 W. KENTUCKY—P.O,. BOX 3251, LOUISVILLE, KY.

SUBJECT INDEX

PAGE

saw eneeense iii

Table of Cases, Statutes, etc. Cited................ iv—-vi

Opinions, Etc. in Courts Below.................... vii

Grounds on Which Jurisdiction of This Court Is

I, SE RE tie a uacceeteocccacéecce 1- 2

The Questions Presented for Review ............... 3

Constitutional Provisions and Statutes Involved

TERE SS i STE DE TE a a OF 4— 7

es Vea a eee ee 8-11

FRE De a 12-30

Does a Statute Which Requires a Minimum Pay-

ment of Workmen’s Compensation Benefits, Ir-

respective of the Inconsequential Degree of

Disability, Violate the Due Process Guaranty of

the Fourteenth Amendment? ................. 12-21

Does a Court Interpretation of a Statute in a

Manner Which Is Incompatible With Its Pre-

viously Declared Standard of Disability En-

titlement, to the Detriment of an Employer,

Deprive the Employer of the Due Process of Law

and Equal Protection of the Laws Guaranteed

by the Fourteenth Amendment? .............. 22-23

May a Court Establish a Long-Standing Principle

of Law, and Then Refuse to Apply it in the

Interpretation of a Statute to Which it is Appli-

cable, Without Denying the Equal Protection

of the Laws to Those Affected by Such Re-

RCRA MORSE AN a BA aaa ae ee arg 24-30

ii

Absurd Construction of Statutes ............ 24-26

Prior Legal Interpretation—Stare Decisis . . .26-28

Administrative Construction ............... 29-30

ss iene eo Diskin bre ie Rik athe Rae ese 30

Ne oe Bua ya ew geen ac a a 31

PI ais 5 a nase was Ueeeccetscess eek wewee ve A1-A19

ili

PETITION

The petitioner, Chief Paduke Distributing Com-

pany, hereby petitions this Court to issue a Writ of

Certiorari to the Supreme Court of Kentucky and the

Court of Appeals of Kentucky for the purpose of

reviewing their actions in the proceedings below, to wit :

Supreme Court of Kentucky: Order of dune 26,

1979 denying discretionary review of the decisién of

the Court of Appeals of Kentucky, referred to below.

No. 79-SC-224-D.

Court of Appeals of Kentucky: Opinion of March

2, 1979, and order of April 27, 1979 denying rehearing,

and mandate issued June 28, 1979. No. 78-CA-617-MR.

All of the documents referred to above are repro-

duced in the Appendix hereto.

EARLE T. SHOuUP

Citizens Bank Building ~

Paducah, Kentucky 42001

Attorney for Petitioner

iv

TABLE OF CASES, STATUTES, ETC. CITED

Allison v. United States, 426 F’. 2d 1324 (1970) ...... 30

Allphin v. Joseph E. Seagram & Sons, Ky., 294 8S. W.

Sa GIS CIGES). . ......s ce vaieoweends cde ede dssdsaess 30

2 Am. Jur. 2d, Administrative Law, §233-254 ....... 30

Apache Coal Company v. Fuller, Ky., 541 8. W. 2d 933

CMBUG)::. caress cds ceri Ves etyienen 8-10, 12, 13, 15, 19, 20,

22, 23, 24, 26, 27, 29

Asher v. Stacy, 299 Ky. 476, 185 S. W. 2d 958 (1945).. 24

Baker v. Commonwealth, 181 Ky. 487, 205 S. W. 399

CID Be TE 0s ie Fa dE ERIE aes He 25

Barnes v. Anderson National Bank, 293 Ky. 592, 169

BW. Dh GOR CIDR cece nin cad cenedisccspaanes 29

Blodgett v. Holden, 275 U.S. 142, 276 U.S. 594, 48

SB. O&K 206, TE Ea BR SOD CES) cos ccc ccnccecnss 18

Brennan v. Owensboro-Daviess County Hospital, 523

FF. 2a 2088 C2978) *. Soi cted. fie ee Ts sta 30

Brooks v. Clark County, 297 Ky. 549, 180 S. W. 2d 300

FIDORD . s+ ars cine Cente Sener e eae Anson 28

Burns v. Shepherd, Ky., 264 S. W. 2d 685 (1953) ..... 14, 17

Cave Hill Cemetery Company v. Gosnell, 156 Ky. 599,

161 8. W. 900. (2048) ... Fes Ra cls 28

C. E. Pennington Company, Inc. v. Winburn, Ky., 537

8B £2) Rae errr rrr rere 12, 15

City of Frankfort v. Triplett, Ky., 364 S. W. 2d 328

(TEBE cas cn cnets cneceu tnaveetassatnenapatens 26

City of Louisville v. Helman, Ky., 253 8. W. 2d 598

(MBO) onc ickciaacanedddabuseeekeoseeane teases 26

City of Louisville v. Presbyterian Orphans Home

Society, 299 Ky. 566, 186 S. W. 2d 194 (1945) .... 28

Couliette v. International Harvester Company, Ky.,

545 S. W. 2d 936, 937 (1976).........eceeecees 16

Federal Gas, Oil and Coal Company v. Harmon, 254

Ky. 255, 71 S. W. 2d 630 (1934).............05. 28

George v. Alcoholic Beverage Control Board, Ky.,

O51 G. We. BE CED TE soe kea ak tase ie cccccnce 26

Grantz v. Grauman, Ky., 302 8. W. 2d 364 (1957)... 29

PAGE

Harned v. Atlas Powder Company, 301 Ky. 517, 192

Bom ee” | er ees eee 29

Heiner v. Donnan, 285 U. S. 312, 52 Sup. Ot. 358, 76

Bes TEE CAPER in Via oS eee sou aade voc sn paw ete .18-19

Illinois Central Railroad Company v. Commonwealth,

305 Ky. 632, 204-S. W. 2d 973 (1947)......... 14-15, 18

Kentucky Acts, 1976 Extra Session, Chapter 26...... 23

Constitution of Kentucky, Section 2................ 4,16

Constitution of Kentucky, Section 3................ 4,16

Constitution of Kentucky, Section 59, Subsection 29. 5, 16

Kentucky Mountain Coal Company v. Witt, Ky., 358

ee We Ne PID £25 5s ks eB e es 26

8 ch vesad. 5-6, 19

KRS 342.730 (1)(a) and (b)....... 6-7, 8, 12, 13, 22, 23, 24

KRG SERTH (2) 26s. 6. bocce 7, 12, 13, 15, 16, 19, 22, 24

Kentucky Workmen’s Compensation Act, Chapter 342

of the Kentucky Revised Statutes. 3, 8, 16, 21, 22, 26-27

Nebbia v. People of State of New York, 291 U. 8. 502,

54S. Ot. 505, 78 L. Ed. 940 (1934)...........048. 18

Newbolt v. Board of Education, Ky., 409 S. W. 2d 513

Ca 6568 i SRT ewereve ccc cversconvecevese 26

Nolley v. Diamond Coal Company, 291 Ky. 849, 165

OWE, BE BUR CAI iain cc siccacnvvsccsccccceses 26

Osborne v. Johnson, Ky., 4382 S. W. 2d 800, 802

(FOGB) 6.0.5 isn cdoneeWowgececerscsccvecssescseee 16, 20

Ragland v. Shrout, Ky., 476 8. W. 2d 820 (1972)..... 28

Rich Hill Coal Company v. Bashore, 334 Pa. 449, 7

i, RENE pi bon ndseabvsbbeewepooesosdes 19

Roe v. Commonwealth, Ky., 405 S. W. 2d 25 (1966). .17-18

Rollins v. Ballentine, 10 Ky. Opin. 139 (1878)....... 28

Rudy v. McCloskey & Company, 152 Pa. Super. 101,

30 A. 2d 805 (1943) and 348 Pa. 401, 35 A. 2d 250

i!) Se ee rere ere er ee eee 19

SCR 1.030 (8) iss» HUME A REES HERE Bi sa wide e's 15

Smiser v. Inskeep, 13 Ky. Opin. 99 (1884).......... 28

Union Light, Heat & Power Company v. City of Cov-

ington, 246 Ky. 663, 55 S. W. 2d 667 (1933)...... 28

EE eee NE OTST GT ST LIEN TONNE SNES CSUN FES eee ee ee ee a

vi

PAGE

Oe TA Se a oo cs Re ae ha eek ceed ARS Fac 2

Constitution of the United States, Fourteenth Amend-

MES os oc hostess s coe URetceakd boobs rays chs 1, 4,16

United States v. Kirby, 74 U. 8S. 482, 19 L. Ed. 278

fa I ee Pree reek Cer ees bee ae 26

Warren v. Spurlock’s Administrator, 292 Ky. 668, 167

Ws Qe RE ars whee ee aE TO: 27-28

Willis v. Storey, Ala., 105 So. 2d 128 (1958)......... 19

Workmen's Compensation Board v. Abbott, 212 Ky.

123, 278 S. W. 533, 536 (1925). .... 2. ce eee 16-17

Yocom v. Gantley, Ky. App., 566 S. W. 2d 176 (1978) .13, 15

%

Vii

OPINIONS, ETC. IN COURTS BELOW

The following are the opinions, orders, etc. in the

courts below, and in the administrative agency of the

Commonwealth of Kentucky in which the proceeding

was originally instituted. All are reproduced in the

Appendix hereto, at the page numbers indicated. None

was officially reported.

PAGE

April 25, 1977, Opinion and Award of Kentucky

Workmen’s Compensation Board............. Al- A5

May 20, 1977, Order of Kentucky Workmen’s

Compensation Board, overruling petition f&

FOCOMMIACTOHIOM. . . onc cece ccdcecsascceccecene A6- A7

March 10, 1978, Summary Judgment of McCracken

Circuit Court, affirming Board award......... A8— A9

March 2, 1979, Opinion of Court of Appeals of Ken-

tucky, affirming Summary Judgment of Mc-

Cracken Circuit Court. ........... cece eeeeees A10-A14

April 27, 1979, Order of Court of Appeals of Ken-

tucky, denying rehearing...............++++: Al5

June 26, 1979, Orders of Supreme Court of Ken-

tucky, denying discretionary review.......... A16, A17

June 28, 1979, Mandates of Court of Appeals of

Kentucky .. . ...cccccccccccccccccsscccccess A18, A19

It will be noted that some of the documents relate

also to appeals by James R. Yocom, Commissioner of

Labor and Custodian of the Special Fund. Separate

appeals and motions for discretionary review were

filed by Mr. Yocom, but they were compatible with

those of the Petitioner herein, and were consolidated

for purposes of hearing.

“a

SUPREME COURT OF THE UNITED STATES

CurIEF PADUKE DistripuTING Company - Petitioner

v.

JAMES LYNEL WILSON,

KENTUCKY WORKMEN’S COMPENSATION

Boarp, and |

JAMES R. Yocom, Commissioner of

Labor and Custodian of the SPECIAL

Funp - - - - - = Respondents

« &

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF KENTUCKY AND

THE COURT OF APPEALS OF KENTUCKY

GROUNDS ON WHICH JURISDICTION

OF THIS COURT IS INVOKED

The jurisdiction of this Court i& invoked on the

ground that if the decisions of the Supreme Court of

Kentucky and the Court of Appeals of Kentucky in-

terpretative of a State statute are valid, the statute

itself is unconstitutional, in that it violates the pro-

visions of the Fourteenth Amendment of the Constitu-

tion of the United States. If such decisions are not

valid, they have denied to the Petitioner the equal

protection of the laws, and have deprived the Peti-

tioner of its property without due process of law, all in

2

contravention of said Fourteenth Amendment. It is

not believed that this Court has previously rendered an

opinion respecting these issues.

The dates of the decisions and orders sought to be

reviewed are as follows, and it is believed that they ©

were entered on such dates:

March 2, 1979, Opinion of Court of Appeals of Ken-

tucky, affirming Summary Judgment of McCracken

Circuit Court.

April 27, 1979, Order of Court of Appeals of Kentucky,

denying rehearing.

June 26, 1979, Order of Supreme Court of Kentucky,

denying discretionary review.

June 28, 1979, Mandate of Court of Appeals of Ken-

tucky. :

Jurisdiction is conferred upon this Court by 28

USC 1257(3).

3

THE QUESTIONS PRESENTED FOR REVIEW

The proceedings below involved the application and

interpretation of certain sections of the Kentucky

Workmen’s Compensation Act (Chapter 342 of the

Kentucky Revised Statutes). It is believed that the

following is a fair statement of the questions that are

properly raised by this Petition:

Does a statute which requires a minimum pay-

ment of Workmen’s Compensation benefits, irre-

spective of the inconsequential degree of disability,

violate the due process guaranty of the Fourteenth

Amendment ?

Does a court interpretation of a statute in a

manner which is incompatible with its previously

declared standard of disability entitlement, to the

detriment of an employer, deprive the employer of

the due process of law and equal protection of the

laws guaranteed by the Fourteenth Amendment?

May a court establish a long-standing principle

of law, and then refuse to apply it in the interpre-

tatior of a statute to which it is applicable, without

denying the equal protection of the laws to those

affected by such refusal ?

4

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED HEREIN

It is believed. that the constitutional provisions and

statutes quoted below are applicable in the considera-

tion of this Petition. References to “‘KRS” denote

sections of the Kentucky Revised Statutes.

Constitution of the United States,

Fourteenth Amendment, Section One

‘ All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State de-

prive ahy person of life, liberty, or property, without

due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

Constitution of Kentucky, Section 2

Absolute and arbitrary power denied.— Absolute

and arbitrary power over the lives, liberty and prop-

erty of freemen exists nowhere in a republic, not evex

in the largest majority.

? Constitution of Kentucky, Section 3

_ Men are equal—No exclusive grant except for

public services—Property not to be exempted from

taxation—Grants revocable.— All men, when they form

a social compact, are equal; and no grant of exclusive,

separate public emoluments or privileges shall be made

to any man or set of men, except in consideration of

5)

public services; but no property shall be exempt from

taxation except as provided in this Constitution, and

every grant of a franchise, privilege or exemption,

shall remain subject to revocation, alteration or amend-

ment.

Constitution of Kentucky, Section 59

Local and special legislation—The General As-

sembly shall not pass local or special acts concerning

any of the following subjects, or for any of the follow-

ing purposes, namely :

* * * * *

Twenty-Ninth: In all other cases where a general

law can be made applicable, no special law shall be

enacted.

KRS 342.620(9)

-“TDisability’’? means, except for purposes of KRS

342.730(1)(¢) relating to scheduled losses, a decrease

of wage earning capacity due to injury or loss of ability

to compete to obtain the kind of work the employe is

customarily able to do in the area where he lives, taking

into consideration his age, occupation, education, effect

upon employe’s general health of continuing in the

kind of work he is customarily able to do, and impair-

ment or disfigurement. A person who has lost wages

by reason of his disability, and who is otherwise eligible

for compensation, is entitled to compensation during

the compensable period in an amount equal to the

wages lost, so long as this amount does not exceed the

applicable maximum compensation. For purposes of

ee ee

6

determining wages lost under this section, it is assumed

that wage earning capacity prior to injury is the aver-

age weekly wage as calculated under KRS 342.140. 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(1)(a) and (b)

Income benefits for disability. (1) Income benefits

for disability shall be paid to the employe as follows,

subject to the maximum and minimum limits specified

in KRS 342.740:

(a) For total disability, 55 ane of his average

weekly wage during such disability, and two and one-

half per cent of his average weekly wage for each

dependent up to a maximum of three.

(b) In all other cases of permanent partial dis-

ability, including any disfigurement which will impair

the future usefulness or occupational opportunities of

the injured employe, or employe disabled by an o¢cu-

pational disease, compensation shall be determined ac-

cording to the percentage of disability, taking, into

account, among other things, any previous disability,

the nature of the physical injury or disfigurement, the

oceupation of the injured employe and age at the time

of injury or at the time the disability from an occupa-

tional disease began. The compensation paid therefor

shall be 55 per cent of the average weekly earnings of

the employe at the time of his injury and two and one-

half per cent of his average weekly wage at the time of

7

injury for each dependent up to a maximum of three,

subject to the limitations contained in KRS 342.740,

multiplied by the percentage of disability caused by the

injury or occupational disease; provided, however, the

individual entitled to benefits under permanent partial

disability shall be entitled to compensation based on

lost wages or body functional disability benefita, which-

ever is greater.

KRS 342.740(1)

Weekly maximum and minimum income benefits for

disability. (1) The minimum weekly income benefits

for disability shall not be less than 20 pereent (com-

puted to the next higher multiple of $1.00) and the

maximum weekly income benefit shall not exceed 60

percent (computed to the next higher multiple of $1.00)

of the average weekly wage of the state as defined

herein. In any event, income benefits shall not exceed

the average weekly wage of the injured employe.

* * * * *

All of the statutory sections quoted hereinabove are

as in effect at the time of the injury of the respondent

James Lynel Wilson, January 13, 1976.

STATEMENT OF THE CASE

This proceeding relates to a claim filed by the Re-

spondent James Lynel Wilson under the Kentucky

Workmen’s Compensation Act (Chapter 342, Ken-

tucky Revised Statutes). He was an employee of the

Petitioner, Chief Paduke Distributing Company. This

Petition does not relate to any factual aspect, and it

accepts as valid the determination of the Workmen’s

Compensation Board that there was a work-connected

injury. This Petition relates only to a matter of legal

interpretation of a section of said Act, and to the con-

stitutionality of such section in the event the legal

interpretation of it by the Courts below should be

determined to be valid.

The Workmen’s Compensation Board made an

award to Wilson based upon an occupational disability

of twenty percent to the body as a whole, three-fourths

of which disability was determined to have preexisted

the injury. The remaining one-fourth (five percent)

produced weekly benefits in the sum of $3.30, payable

from the cessation of a period of temporary total dis-

ability (average weekly wage, $120.00, multiplied by

fifty-five percent [KRS 342.730(1)(b)], multiplied by

five percent, the percentage of compensable disability).

However, on the authority of Apache Coal Company v.

Fuller, Ky., 541 8S. W. 2d 933 (1976), the Board in-

creased such weekly sum to $32.00.

The Petitioner attacked the employment of Apache

v. Fuller in an appeal to the McCracken Circuit Court,

alleging in its Petition of Appeal:

9

‘‘6. In applying the principles of Apache v.

Fuller, supra, the Board violated Section 59, Sub-

section 29, and Sections 2 and 3 of the Constitution

of Kentucky, and also violated Section 1 of Amend-

ment 14 of the Constitution of the United States.

“7, The decision in Apache v. Fuller, supra,

is erroneous, in that in the interpretation of the

Kentucky Workmen’s Compensation Act it

brought about an inequitable, unjust and absurd

result.

**8. The decision in Apache v. Fuller, supra,

is erroneous because it violated prior judicial con-

struction which, by reason of the failure of the

General Assembly to amend the Act, established

vested property rights which should not have been

destroyed by judicial fiat.

**9,. The decision in Apache v. Fuller, supra, is

erroneous, for it ignores long-standing adminis-

trative interpretation of the Kentucky Workmen’s

Compensation Act, which interpretation should

have been considered and embodied in subsequent

judicial interpretation. Y

‘10. The decision in Apache v. Fuller, supra,

is erroneous, for it is based on the provisions of

KRS 342.740(1), which specify that any compen-

sation claimant suffering from permanent partial

disability shall be entitled to a minimum of 20

percent of the average weekly wage of the state as

defined in said Act, which is an arbitrary classifi-

‘eation without any rational foundation or basis,

and has no relation to such critical factors as age,

training, present employment, education, experi-

ence, available employment oportunities, body

functional disability based upon medical findings,

10

actual wages, and other factors which would have

a bearing on the determination of a claimant’s oc-

cupational disability, and all of which said pro-

visions are violative of the Constitution of Ken-

tucky and the Constitution of the United States,

as aforesaid.”’ .

A corresponding appeal was filed by the Respond-

ent, James R. Yocom, Commissioner of Labor and

Custodian of the Special Fund, it also raising the

constitutional question. The two appeals were consoli-

dated. The said Special Fund is a so-called ‘‘second

injury fund.”

On March 10, 1978 the McCracken Circuit Court

entered a summary judgment in the consolidated ap-

peals, determining that the opinion and award of the

Workmen’s Compensation Board was in conformity

with Apache v. Fuller, supra, and affirming such

award. (Appendix, page A8).

Thereafter, timely appeals were prosecuted by the

Petitioner and the said Yocom to the Court of Appeals

of Kentucky, and in the briefs of both of said parties

the constitutional question was argued.

On March 2, 1979 the Court of Appeals of Kentucky

rendered an opinion affirming the judgment of the

McCracken Circuit Court. (Appendix, page A10).

Petitions for rehearing were then filed by both the

Petitioner and the said Yocom, and on April 27, 1979

the said Court of Appeals of Kentucky entered an

order denying the petitions for rehearing. (Appendix,

page Al5).

mee

11

Thereafter motions for discretionary review by the

Supreme Court of Kentucky were filed by the Peti-

tioner and the said Yocom, in which motions the con-

stitutional question was urged, but on June 26, 1979

the said Supreme Court of Kentucky entered orders

denying discretionary review. (Appendix, pages A16

and A1T).

On June 28, 1979 the mandates of the Court of

Appeals of Kentucky were issued. (Appendix, pages

A18 and A19).

It will thus be seen that from the time of the appeal

taken from the opinion and award of the Workmen’s

Compensation Board until the present time the Peti-

tioner has raised in all courts the issue of the constitu-

tionality of the statute in question, and the interpreta-

tion thereof.

12

ARGUMENT

Does a Statute Which Requires a Minimum Payment of

Workmen’s Compensation Benefits, Irrespective of the

Inconsequential Degree of Disability, Violate the Due

Process Guaranty of the Fourteenth Amendment?

As stated hereinabove, the Workmen’s Compensa-

tion Board, relying upon the decision of the Supreme

Court of Kentucky in Apache v. Fuller, supra, in-

creased the award in favor of Wilson from $3.30 per

week to $32.00 per week, an increase of 869.69 percent,

which, on the basis of Wilson’s life expectancy, will

produce a gift of over $45,000.00.

A question immediately arises as to the constitu-

tionality of the benefits sections of the Kentucky Work-

men’s Compensation Act [KRS 342.730(1)(b) and

342.740(1)], assuming that they have been properly

interpreted by the Supreme Court of Kentucky in

Apache v. Fuller, supra. A secondary question arises

as to the constitutionality of the interpretation placed

upon said statutory sections in Apache v. Fuller, supra.

Apache v. Fuller, supra, relates to minimum bene-

fits. It was preceded by another decision interpretive

of the same statutory sections as they related to maxi-

mum benefits (C. HE. Pennington Company, Ine. v.

Winburn, Ky., 587 S. W. 2d 167 (1976). In one of the

most strained constructions of statutory language, the

Supreme Court of Kentucky held (contrary to long-

standing interpretation) that the maximum limitation

applied in cases of partial disability, and refused to

reduce that maximum in keeping with the percentage

of partial disability. Thus, an award by the Work-

13

men’s Compensation Board in the amount of $39.25

per week was regarded as within the then maximum

of $81.00 per week, even though by previous interpreta-

tion the maximum would have been $16.20 per week

($81.00 multiplied by the percentage of disability,

twenty percent).

Two of the seven justices dissented, and one of them

took to task the other justices for their failure to apply

the English language and accepted grammatical con-

struction.

The dissenting opinion clearly points out that an

award of $16.20 per week would have been proper.

Then along came Apache v. Fuller, supra, and, fol-

lowing the guidelines of Pennington v. Winburn, supra,

the Supreme Court of Kentucky held that the specifi-

cation of the minimum benefits was applicable in cases

of partial disability, and refused to apply the minimum

to the percentage of disability. ’

The ruling in Apache v. Fuller, supra, was attacked

later in Yocom v. Gantley, Ky. App., 566 8S. W. 2d 176

(1978), and for the first time the constitutional aspect

was treated. A majority of the Court (two judges)

stated: ‘‘We cannot hold Apache unconstitutional as

it was the logical interpretation of KRS 342.730(1) (b)

as that statute read before amendment.’’ However, in

a strong dissent the third judge declared: |

ss. . . However, I believe that there is merit in

the argument that the provisions of KRS 342.740

(1) relating to the minimum weekly income bene-

fits are unconstitutional when.applied to the facts

of this case.

14

‘“‘Gantley’s average weekly wage at the time of

his injury was $97.89. Gantley has since been able

to obtain new employment at $135.00 per week.

Consequently, the board’s award is based upon a

finding of prvbable future loss of wages. The

board has, in effect, predicted that Gantley will

have an average weekly wage loss of $4.89 ($97

x 5%). Even though the board has found Tat

Gantley’s earning capacity has been diminished by

only $4.89 per week, the board has awarded Gant-

ley benefits of $29.00 per week. This sum repre-

sents 20% of the state average weekly wage which

constitutes the minimum weekly income benefit

provided by KRS 343.740(1). See Apache Coal

Co. v. Fuller, Ky., 541 S.W. 2d 933 (1976).

Another employee with the same average weekly

wage and no dependents, but with a 54% disability,

would have received the same benefits as awarded

Gantley ($97.89 x 55% x 54%). Gantley not only

received the same weekly benefits as an employee

whose disability was ten times greater, but Gantley

ygilso received $24.11 per week more than his pro-

jected weekly loss of earning power. I can find

no rational basis for awarding Gantley any sum in

excess of his average weekly wage multiplied by

the percentage of disability determined by the

board. The board’s award of $29.00 per week to

Gantley includes, in effect, a weekly gift of $24.11

which is completely unrelated to the injury suf-

fered by him. To the extent that Gantley’s em-

ployer and the Special Fund are compelled to

make such a weekly gift to Gantley, KRS 342.740

(1) is arbitrary and in violation of section 2 of the

Kentucky Constitution. See Burns v. Shephard,

Ky., 264 S. W. 2d 685 (1953), and [ilinois Central

- ———————————EE

15

Railroad Co. v. Commonwealth, 305 Ky. 632, 204

S. W. 2d 973 (1947).’’

The Supreme Court of Kentucky denied discre-

tionary review of Yocom v. Gantley, supra, and in the

instant case the Court of Appeals of Kentucky viewed

such denial as affirmance, which is contrary to the

rules of the Supreme Court of Kentucky [SCR 1.030

(8)(b)]:

“The denial of a motion for discretionary re-

view by the Supreme Court or by the Court of

Appeals shall not be taken as indicating its ap-

proval of the opinion or decision sought to be

reviewed.”’

Nevertheless, in the instant case the Court of Appeals

of Kentucky stated (Appendix, page A14): ‘Although

the question of the constitutionality of KRS 342.740 in

its application was not specifically decided in Apache,

the Supreme Court by denying discretionary review in

Yocom v. Gantley, supra, implicitly decided the issue.

We regard Apache as a recent statement by the Su-

preme Court of what it has concluded the plain lan-

guage of KRS 342.740(1) meant prior to the amend-

ment of KRS 342.730(1)(b) in response to Apache,

and we feel that its constitutionality has been decided

in Yocom v. Gantley.’’

At this point in this Petition we will assume (but

not admit) the validity of the rulings in Pennington v.

Winburn, supra, Apache v. Fuller, supra, and Yocom

v. Gantley, supra, and we will examine the statutory

sections in question for the purpose of determining

16

9

whether or not they are, by their very provisions, vio-

lative of the constitutional sections on which we rely.

In doing that, we must first establish the meaning of

certain basic provisions of the Kentucky Workmen’s

Compensation Act.

Workmen’s Compensation benefits are based upon

occupational disability (as distinguish from functional

disability or mere bodily impairment), which, in turn,

is based upon impairment of earning capacity. This

principle was enunciated in Osborne v. Johnson, Ky.,

432 S. W. 2d 800, 802 (1968). Eight years later that

principle was confirmed, the Supreme Court of Ken-

tucky declaring that a Compensation award must still

be based on a claimant’s overall capacity to earn a

living (Couliette v. International Harvester Company,

Ky., 545 S. W. 2d 936, 937 [1976]).

We are thus faced with the question of whether the

statutorily-created minimum benefits [KRS 342.740

(1), as in effect at the time of Wilson’s injury (page

7 hereof) ] are consistent with the principle laid down

in Osborne v. Johnson, supra, and whether the statute

in fact results in a violation of Sections 2, 3 and Sub-

section 29 of Section 59 of the Kentucky Constitution,

and Section 1 of the Fourteenth Amendment to the

United States Constitution.

The Kentucky Workmen’s Compensation Act was

enacted under the authority of the State’s police

powers. Even so, the limitation on legislative power

in that respect was recognized in Workmen’s Com-

pensation Board v. Abbott, 212 Ky. 123, 278 8. W. 533,

536 (1925) :

17

‘“‘The right of the Legislature to declare what

is a proper public policy, so as to authorize its

being dealt with under the police power, seems to

be limited only by the consideration that its action

in the matter may not be arbitrary, but must be

rested upon some tangible and reasonably clear

public purpose to be served, and which has a rea-

sonably substantial tendency to further the in-

terest of the public welfare.’’

A good example of arbitrary legislation is found in

Burns y. Shepherd, Ky., 264.8. W. 2d 685 (1953).

There a provision of the Workmen’s Compensation

Act required an employer to pay one-half of a claim-

ant’s attorney fee, and the Board sought to enforce it.

The statutory provision was nullified in the following

language (p. 687) :

‘‘Unless based upon some unreasonable delay

or willful failure of the employer, there could be

no more constitutional justification for requiring

the employer to pay all or part of the employee’s

attorney fee than to require payment of his grocery

bill. Unless some standards are provided by which

the requirement would apply only to employers

who have unreasonably or willfully violated some

obligation which they owe to an employee, we do

not think the statute can be sustained as constitu-

tional. It violates the due process clause of the

Federal Constitution and Section 2 of the Ken-

tucky Constitution which declares that absolute

and arbitrary power exists nowhere in a republic.”’

It is fundamental that all legislative regulations be

reasonable. Roe v. Commonwealth, Ky., 4058. W. 2d

be

18

25 (1966). Legislation granting employees the right

to absent themselves from work for four hours on

election day for voting purposes without deduction of

wages was declared unconstitutional in Illinois Central

Railroad Company v. Commonwealth, 305 Ky. 632, 204

S. W. 2d 973 (1947).

This Court spoken firmly on the subject. For

example, in Nebbia v. People of State of New York,

291 U. S. 502, 54 S. Ct. 505, 78 L. Ed. 940 (1934) :

“The Fifth Amendment, in the field of federal

activity, and the Fourteenth, as respects State

action, do not prohibit governmental regulation

for the public welfare. They merely condition

the exertion of the admitted power, by securing

that the end shall be accomplished by methods

consistent with due process. And the guaranty of

due process, as has often been held, demands only

that the law shall not be unreasonable, arbitrary

or capricious, and that the means selected shall

have a real and substantial relation to the object

sought to be attained.”’

In Blodgett v. Holden, 275 U. 8. 142, 276 U. 8. 594,

48 S. Ct. 105, 72 L. Ed. 206 (1927) :

‘‘In Nichols v. Coolidge (May 31, 1927) [274

U. 8. 531, 71 L. ed. 1184, 52 A.L.R. 1081, 47 Sup.

Ct. Rep. 710] this court pointed out that a statute

purporting to lay a tax may be so arbitrary and

eapricious that its enforcement would amount to

deprivation of property without due process of

law within the inhibition of the 5th Amendment.’’

Again, in Heiner v. Donnan, 285 U. 8. 312, 52 Sup.

Ct. 358, 76 L. Ed. 772 (1982) :

19

“Nor is it material that the 14th Amendment

was involved in the Schlesinger Case, instead of

the 5th Amendment, as here. The restraint im-

posed upon legislation by the due process clauses

of the two amendments is the same. Coolidge v.

Long, 282 U. S. 582, 596, 75 L. ed. 562, 566, 51

S. Ct. 306. That a federal statute passed under

the taxing power may be so arbitrary and caprici-

ous as to cause it to fall before the due process of

law clause of the 5th Amendment is settled. (‘Cases

cited).’’

See also Rudy v. McCloskey & Company, 152 Pa.

Super. 101, 30 A. 2d 805 (1943), and 348 Pa. 401, 35

A. 2d 250 (1944) ; Willis v. Storey, Ala., 105 So. 2d 128

(1958) ; Rich Hill Coal Company v. Bashore, 334 Pa.

449, 7 A. 2d 302 (1989).

Applying the principles enunciated above, it is clear

that KRS 342.740 (1), as interpreted in Apache v.

Fuller, supra, is an unreasonable and arbitrary legis-

lative action. The purpose of Workmen’s Compensa-

tion is to provide income benefits for injured workers

in relation to the reduction of their power to earn

money. ‘‘Its purpose was to provide recompense

commensurate with the damage from accidental injury,

as a fair exchange for relinquishing every other right

of action against the employer’’ (Rudy v. McCloskey

& Company, supra).

KRS 342.620 (9) (page 5 hereof) specified the

factors to be considered in determining occupational

disability. A reference to that section and a considera-

tion of the cases cited hereinabove should convince the

Court that the Tequirement that a minimum amount be

20

paid for even a most trivial injury has absolutely no

relation to the objective of the Workmen’s Compensa-

tion Act, or to the cognizable ‘‘disability’’ for which

Compensation is intended, or to the principle declared

in Osborne v. Johnson, supra.

The instant case is a glaring example of the in-

justice which can be wrought by the statute, as inter-

preted in Apache v. Fuller, supra. A weekly benefit

of $32.00, instead of the weekly sum to which the Board

thought Wilson was entitled, $3.30. A prospective gift

during Wilson’s life expectancy of in excess of

$45,000.00. The Court can recognize that even greater

injustices can result.

For example, assume that an employee with two

dependents sustains an occupational disability of five

percent. The following calculations based on different

wages will show the weekly benefit to which he would

ordinarily be entitled:

$100 x 60% x 5% = $8.00

$150 x 60% x 5% = $4.50

$200 x 60% x 5% = $6.00

$300 x 60% x 5% — $9.00

In the year in which Wilson was injured, each of

the specified weekly Compensation amounts ($3.00,

$4.50, $6.00 and $9.00) would be increased to $32.00.

It is obvious that there is no reasonable relation be-

tween the loss of earning capacity and the resultant

award.

And consider the fact that on the basis of Wilson’s

average wage of $120.00, with no dependents, Wilson

21

has been awarded as much as he would have received

had he had a disability of forty-eight percent ($120.00

x 55% x 48% = $31.68).

And he would receive $32.00 with a one percent

disability, even though he would literally be entitled

to only $.66 ($120.00 x 55% x 1% = $.66).

This all the more demonstrates that there is no

reasonable relation between the loss of earning capacity

and the award that could be made in the instances cited.

It follows that the minimum compensation provisions

of the Kentucky Workmen’s Compensation Act are

arbitrary, and are not validly within the regulatory

grant of authority afforded by the police powers of the

State. It also follows that they deprive employers of

their property without due process of law, in violation

of the constitutional provisions previously set forth

herein.

22

Does a Court Interpretation of a Statute in a Manner Which

Is Incompatible With Its Previously Declared Stand-

ard of Disability Entitlement, to the Detriment of an

Employer, Deprive the Employer of the Due Process of

Law and Equal Protection of the Laws Guaranteed by

the Fourteenth Amendment?

The foregoing discussion has pointed out the in-

validity of the minimum benefits sections of the Ken-

tucky Workmen’s Compensation Act, assuming that

they have been correctly interpreted by Apache v.

Fuller, supra. We do not believe that the provisions

referred to lend themselves to such interpretation.

It is the interpretation that is wrong.

We start out with an examination of the section of

the Act which specifies the minimum weekly benefits

(KRS 342.740 [1], page 7 hereof). There is no doubt

that the computation specified therein produced the

figure of $32.00 as the minimum applicable at the time

of Wilson’s injury.

We must then consider the section of the Act which

specifies the computation of the compensation to which

Wilson was entitled, and which makes reference to the

employment of the minimum prescribed in KRS 342.-

740 (1), which is KRS 342.730 (1) (b), page 6 hereof.

Deleting from it the extraneous matter, it reads as

follows:

‘In all other cases of permanent partial dis-

ability,—compensation shall be determined gccord-

ing to the percentage of disability, taking into

account, among other things,—the nature of the

physical injury,—the occupation of the injured

employe and age at the time of injury—. The com-

pensation paid therefor shall be 55 per cent of the

i/

eS a

23

average weekly earnings of the employe at the

time of his injury—, subject to the limitations

contained in KRS 342.740, multiplied by the per-

centage of disability caused by the injury—.’’

In keeping with these provisions, the computation

of Wilson’s benefits would be as follows:

55% multiplied by $120.00 (average weekly

earnings), equals $66.00, reduced, if necessary, by

the minimum limitation prescribed by KRS 342.-

740, $32.00, still equals $6€.00, multiplied by the

percentage of disability, 5%, equals $3.30.

When the Board made its computation, it used

exactly this formula, but then resigned itself to a com-

pulsory increase to $32.00 because of the ruling in

Apache v. Fuller, supra (see paragraph 3 of the award,

Appendix, page A4).

It is obvious that the interpretation of the statute

by the Supreme Court of Kentucky violated accepted

grammatical construction. Far worse, it violated the

due process provision and the equal protectiva provi-

sion in both the United States Constitution and the

Constitution of Kentucky, previously referred to.

The same legal reasoning applicable in the section

of this Petition immediately preceding is applicable to

the action of the said Supreme Court of Kentucky.

As a matter of interest, following the rendition: of

the decision in Apache v. Fuller, supra, the Kentucky

Legislature amended KRS 342.730, so that it now pro-

vides that ‘‘Notwithstanding any section of KRS

Chapter 342 to the contrary, there shall be no minimum

weekly income benefit for permanent partial disability’’

(Kentucky Acts, 1976 Extra Session, Chapter 26).

*

24

May a Court Establish a Long-Standing Principle of Law,

and Then Refuse to Apply it in the Interpretation of a

Statute to Which it is Applicable, Without Denying

the Equal Protection of the Laws to Those Affected by

Such Refusal?

The equal protection of the laws guaranteed by the

Fourteenth Amendment to the Constitution of the

United States mandates that judicial decisions shall

be applied alike to all persons affected by those deci-

sions. We can show that the Petitioner was not so

privileged in the Courts below.

ABSURD CONSTRUCTION OF STATUTES

As we have pointed out above, because of the ap-

plication of Apache v. Fuller, supra, Wilson will re-

ceive a sum to which he is not entitled by the measure-

ment of his disability, it being in excess of $45,000.00.

This result is due to the fact that the statute on which

his award was based (KRS 342.730[1] [b]), and the

statute relating to minimum benefits (KRS 342.740)

have been given an absurd construction.

It is an accepted legal principle that statutes should

be construed to bring about an equitable and just result.

See, for example, Asher v. Stacy, 299 Ky. 476, 185 8. W.

2d 958 (1945), which concerned an attempt to construe

KRS 213.150, with respect to which there was a ques-

tion as to what words were connected by the conjunc-

tion ‘‘and’’. In the course of the discussion the Court

stated (p. 959) :

‘‘Not the literal language but the true inten-

tion or will of the Legislature is the law. That is

25

what the Courts endeavor to ascertain and declare

and what the executive departments must obey.

All rules of statutory construction have that in

view. Since words are used to express an idea, if

that idea is manifest, although inaptly or ob-

scurely expressed, no usurpation is committed by

declaring the legislative intent and no violence

done by supplying, deleting or changing words or

their arrangement in clarification. The general

intent is the key to each part of an act.

* * * * * * *

‘‘As between conflicting consequences, a statute

will be construed so as to make it equitable and

just rather than inequitable and unjust.’’

In Baker v. Commonwealth, 181 Ky. 487, 205 S. W.

399 (1918) there was the problem of construing a

statute which contained an obvious error in its reenact-

ment. The intention of the Legislature was apparent,

and the Court dealt with the problem in this language

(p. 401) :

‘The only difference between the foregoing and

section 2557b, to which it is an amendment, is that

the original act provided that the bond should be

required ‘on the second or any subsequent convic-

tion’, instead of ‘on the first conviction’, ete.

Hence, to ascertain of what a breach of such a

bond as is in controversy may consist of, it is neces-

sary to ascertain and determine what the Legis-

lature, in enacting the statute, intended should be

a breach of the bond. It is unnecessary to say

that in construing statutes the fundamental rule is

to ascertain the intention of the law-making power.

It is a well-known rule that the spirit and reason

26

of the law wil prevail over its letter, when a literal

application of the letter would lead to absurdity

or injustice, and in such instances, where the mean-

ing is doubtful, the general terms used may be

restrained by the spirit of the statute. The pur-

pose of the Legislature in enacting the statute may

be looked to, and if the precise words used are

inconsistent with the object of the statute, they

must give way to the intention as ascertained from

the entire act.”’

See also City of Louisville v. Helman, Ky., 253

S. W. 2d 598 (1952) ; Newbolt v. Board of Education,

Ky., 409 S. W. 2d 513 \(1966); George v. Alcoholic

Beverage Control Board, Ky., 421 8. W. 2d 569 (1967) ;

City of Frankfort v. Triplett, Ky., 365 8. W. 2d 328

(1963); Nolley v. Diamond Coal Company, 291 Ky.

849, 165 S. W. 2d 841 (1942) ; Kentucky Mountain Coal

Company v. Witt, Ky., 358 S. W. 2d 517 (1962) ; and

United States‘v. Kirby, 74 U. S. 482, 19 L. Ed. 278

(1869).

Unquestionably, Apache v. Fuller, supra, brought

about an absurd result, as did the decision of the Court

of Appeals of Kentucky in the instant case. It is all

too obvious that the Petitioner has not been given the

advantage afforded by the cases we have cited herein-

above which condemn such results. Equal protection

was totally absent.

PRIOR LEGAL INTERPRETATION—STARE DECISIS

There is another aspect on which the Petitioner has

been denied the equal protection of the laws. For

years the minimum benefits provisions of the Kentucky

27

Workmen’s Compensation Act were construed so that

the specified minimum benefits related to total dis-

ability, and they would be applied proportionately in

instances of partial disability.

For example, in the case of a specified minimum of

$29.00, the least amount which could be awarded for a

10% disability to the body as a whole would be $2.90.

This interpretation of the statute prevailed until the

time of Apache v. Fuller, supra, and, accordingly, there

was no need for a change of the statute. And lacking

any change, there was a vesting of property rights, and

insurance premiums were fixed accordingly. The

doctrine of stare decisis prevailed. Then came Apache

v. Fuller, supra, and totally destroyed these accepted

legal principles.

In Warren v. Spurlock’s Adminstrator, 292 Ky.

668, 167 S. W. 2d 858 (1943), the Court was concerned

with the construction of a statute as it related to cer-

tain insurance. It referred to a previous decision, and

then stated:

‘‘Our construction of the statutes is predicated

upon the ground that the wife was named as bene-

ficiary in consideration of the fact that she was

the insured’s wife, that is, her interest was ‘ob-

tained, directly or indirectly, from or through the

other, during marriage, in consideration or by

reason thereof’, as stated in Section 425 of the

Code. That right-whatever its nature or degree-

we have consistently held to be embraced by the

term ‘property’, as used in those statutes. The

legislature has accepted this construction for 30

years. It must be regarded as the equivalent of a

28

specific expression therein so far as contract rights

acquired under it are concerned. The policy in-

volved in this case was issued under that inter-

pretation and it became in effect.a part of it.’’

An excellent dissertation on this subject is in Brooks

v. Clark County, 297 Ky. 549, 180 S. W. 2d 300 (1944).

In Ragland v. Shrout, Ky., 476 S. W. 2d 820 (1972),

it was said:

‘*A court will not lightly overturn its previous

construction of a statute of descent and distribu-

tion where such construction has not been chal-

lenged for many years and has generally been ac-

cepted and acted upon as a rule of property. 23

Am. Jur. 2d, Descent and Distribution, Sec. 15,

p. 762.”’-

See also Rollins v. Ballantine, 10 Ky. Opin. 139

(1878); Smiser v. Inskeep, 13 Ky. Opin. 99 '(1884) ;

Union Light, Heat & Power Compamy v. City of Cov-

ington, 246 Ky. 663, 55 S. W. 2d 667 (1933) ; Federal

Gas, Oil and Coal Company v. Harmon, 254 Ky. 255,

71 S. W. 2d 630 (1934) ; City of Louisville v. Presby-

terian Orphans Home Society, 299 Ky. 566, 186 8S. W.

2d 194 (1945); and Cave Hill Cemetery Company v.

Gosnell, 156 Ky. 599, 161 S. W. 980 (1913).

In the instant case these accepted legal principles

and interpretations were denied the Petitioner. He

had no equal protection of the laws.

29

ADMINISTRATIVE CONSTRUCTION

There is still another line of court decisions to

which the Petitioner has been denied access. For

years the Workmen’s Compensation Board construed

the minimum benefits provisions as previously dis-

cussed, that is to say, the specified minimum related to

total disability, and a partial disability would be based

upon a corresponding percentage of that minimum.

The Supreme Court of Kentucky totally ignored the

principle that the interpretation placed upon the stat-

ute by the Board is entitled to great respect in con-

struing it, and Apache v. Fuller, supra, resulted.

The principle just referred to was discussed in

Barnes v. Anderson National Bank, 293 Ky. 592, 169

S. W. 2d 833 (1943), as follows:

‘¢ All rules for the interpretation and construc-

tion of statutes of doubtful meaning have been

adopted and applied for the sole purpose of en-

deavoring to discover the legislative intent.—Some

of the extraneous matters helpful to a fair inter-

pretation of the intention of the Legislature are:

legislative history, legislative construction, judicial

construction, and the administrative construction

placed on the act by those intrusted to enforce its

provisions.”’

To the same effect is Harned v. Atlas Powder Com-

pany, 301 Ky. 517, 192 8. W. 2d 378 (1946). See also

Grantz v. Grauman, Ky., 302 8. W. 2d 364 (1957)

(‘‘Practical construction of an ambiguous law by ad-

ministrative officers continued without interruption for

a very long period is entitled to controlling weight’) ;

30

Allphin v. Joseph E. Seagram & Sons, Ky., 294 8. W.

2d 515 (1956) (‘‘It is well established that in constru-

ing an ambiguous statue, the Court will give great

weight to long-continued constructions and applica-

tions by authorities entrusted with its administra-

tion’’); Brennan v. Owensboro-Daviess County Hospi-

tal, 523 F’. 2d 1013 (1975) ; Allison v. United States, 426

F. 2d 1824 (1970); and 2 Am. Jur. 2d, Administrative

Law, §233-254.

Had the Court decisions referred immediately above

been applied in the determination of the instant cause,

the Petitioner would not now be before this Court

today. Failure to give the Petitioner the benefit of

the reasoning in those decisions has been an effective

denial of equal protection of the laws, in contravention

of the Fourteenth Amendment.

CONCLUSION

Due process and equal protection of the laws have

been totally lacking in the treatment accorded to the

Petitioner in the courts below.

Justice demands that this Court take jurisdiction,

and issue writs of certiorari to the Court of Appeals

of Kentucky and the Supreme Court of Kentucky, in

order that their decisions may be reviewed.

Respectfully submitted,

Harte T. SHove

Citizens Bank Building

Paducah, Kentucky 42001

Attorney for Petitioner

31

CERTIFICATION

I hereby certify that three copies of this petition have

been served upon all parties required to be served by Rule

33 of this Court by mailing or delivering the same, first

class postage prepaid in the case of mailing, as follows:

McMurry and Livingston, Citizens Bank Building, Pa-

ducah, Kentucky 42001, attorneys for James Lynel Wilson;

and Donald Campbell, Director, Workmen’s Compensation

Board, 127 Building, U.S. Highway 127 South, Frankfort,

Kentucky 40601; and Cyril E. Shadowen, Assistant Counsel,

Department of Labor, 801 West Jefferson Street, Louis-

ville, Kentucky 40202, attorney for James R. Yocom, Com-

missioner of Labor and Custodian of the Special Fund.

“

Earnie T. SHoup

a it a EEO ILS TER EE i EEG | i RL

+

=

Z,

e3)

Ay

Ay

<

-_

Al

WORKMEN’S COMPENSATION BOARD

Claim No. 1129982

JaMEs Lynetn Wuson - - - - - ~~ Plaintiff

v.

Cuier Papuxe Disrrisutine Company and

Sprout Funp - - - - - = Defendants

OPINION AND AWARD—Entered April 25, 1977

Messrs. McMurry & Livineston Georce R. EFFINGER

713 Citizens Bank Bldg. 720 Citizens Bank Bldg.

Paducah, Kentucky 42001 Paducah, Kentucky 42001

Attorney for Plaintiff Attorney for Midwestern In-

demnity Company

SPECIAL FunpD Earu T. SHouP

Frankfort, Kentucky Citizens Bank & Trust Co. Bldg.

Paducah, Kentucky 42001

Attorney for Grange Mutual

Casualty Company

OPINION BY FULL BOARD

FINDINGS OF FACT

1. This case involves two claims by plaintiff for in-

juries to his knee allegedly sustained on January 13, 1976

and March 25, 1976. At the hearing there were stipulations

as to the January 13, 1976 injury that both parties were

A2

operating under the terms and provisions of the Act; that

the defendant received due and timely notice; that the

plaintiff was earning $2.50 per hour based upon a 48 hour

work week; that the plaintiff was paid temporary total

benefits at the rate of $75.00 per week for 3 weeks and

medica] expenses were paid in the amount of $229.25. No

stipulations were made as to the March 25, 1976 claim of

injury. f

2. Plaintiff is 37 years old, married, but separated

from his wife, with a 12th grade educational level. He has

no dependents. Plaintiff was a route salesman for de-

fendant with the responsibilities of driving a truck and

selling beer to customers. His duties included loading and

unloading of trucks, advertising and he says promotion

work. On January 13, 1976 plaintiff sustained a work re-

lated injury when he slipped and fell injuring his left knee.

He was treated by Dr. George Beard who treated plaintiff

as an out-patient by draining fluid from his knee and fitting

plaintiff with a fiberglass cast which he wore some 7 to 10

days. Plaintiff returned to work after 3 weeks with a

helper on the truck to assist in the unloading and loading of

the truck.

3. The Board finds that the alleged injury of March 25,

1976 was not work related and is thus non-compensable.

4. As stipulated the plaintiff earned $2.50 an hour

based upon a 48 hour work week. The Board finds that the

plaintiff’s average weekly wage was $120.00 per week.

5. Plaintiff has suffered prior knee injuries. In 1956

he sustained a knee injury while in the Air Force and was

operated for a cartilage operation in 1958. Plaintiff also

sustained an injury to this knee in 1963. Plaintiff says he

has had some minor discomfort from the knee all along.

6. Dr. George Beard, plaintiff’s treating physician,

concluded that plaintiff had an active prior disability pre-

existing the injury of January 13, 1976 of some 30% to the

A3

knee which he assigned 3 to 5 percent to the body as a

whole describing it as plaintiff suffering from a moderately

severe osteoarthritis. He concluded that the January 13,

1976 injury added another 10% disability to the knee or

possibly a 1% additional disability to the body as a whole.

Dr. Ibrahim Kahn was appointed to examine plaintiff pur-

suant to KRS 342.121. He concluded that plaintiff suffered

a pre-existing active disability of some 5% to the body as a

whole and added possibly a 1% additional disability oc-

casioned by the injury.

7. The Board finds the plaintiff’s occupational disa-

bility to be 20% under the principles set out in Osborne v.

Johnson, Ky., 432 S. W. 2d 800, KRS 342.620(9) and KRS

342.730.

8. The Board is bound to follow the steps set out in

Young v. Fulkerson, Ky., 463 S. W. 2d 118 in apportioning

the liability in this case.

a. The injury of January 13, 1976, independently

would not have caused the entire disability.

b. The extent of occupational disability attribu-

table to the injury of January 13, 1976 alone is 2%.

The employer owes this.

c. [The degree of occupational disability which

existed immediately prior to the subject injury without

regard to their effects is 15%. This is non-compen-

sable.

d. The remaining 3% of plaintiff’s occupational

disability which began January 13, 1976, is the result

of the arousal of a non-disabling disease into further

disabling reality. This portion falls upon the Special

Fund.

9. The plaintiff received an injury of appreciable pro-

portions in the accident of January 13, 1976, and his future

earning capacity has been reduced and impaired to the

extent found herein.

A4

RULINGS OF LAW

KRS 342.004

KRS 342.020

KRS 342.120

KRS 342.620(9)

KRS 342.730

Osborne v. Johnson, Ky., 432 S. W. 2d 800

Young v. Fulkerson, Ky., 463 S. W. 2d 118

AWARD

Ir Is OnpERED AND ADJUDGED BY THE Boarp as Foitows:

1. The plaintiff, James Lynel Wilson, shall recover of

the defendant, Chief Paduke Distributing Company, and/

or its insurance carrier, the sum of $66.00 per week from

January 13, 1976 to February 4, 1976 for temporary total

disability and beginning February 5, 1976 he shall recover

the sum of $1.32 per week for 2% occupational disability

for so long as he is so disabled, together with interest at

the rate of 6% per annum on all due and unpaid install-

ments of compensation, and the defendant is to take credit

for any compensation heretofore paid.

2. The plaintiff, James Lynel Wilson, shall recover of

the Special Fund the sum of $1.98 per week beginning

February 5, 1976, for 3% occupational disability for so

long as he is so disabled, together with interest at the rate

of 6% per annum on all due and unpaid installments of

compensation, and the defendant is to take credit for any

compensation heretofore paid.

3. The award must be raised to $32.00 per week in

accordance with Apache Coal Company v. Fuller, Ky., 541

S. W. 2d 933 ($11.11 against the defendant employer and

$17.59 against the Special Fund).

4. All compensation awarded herein shall be paid to

the plaintiff by the defendant employer subject to reim-

bursement by the Special Fund for the part owed by it on a

quarterly basis,

A5

5. The plaintiff shall further recover of the defendant

employer for the cure and relief from the effects of the

injury such medical, surgical and hospital treatment, in-

cluding nursing, medical and surgical supplies and appli-

ances, as may reasonably be required at the time of the

injury and thereafter during disability.

A6

DEPARTMENT OF LABOR

WORKMEN’S COMPENSATION BOARD

Frankfort, Ky. 40601

Julian M. Carroll, Governor Shelby T. Denton, Chairman

James R. Yocom, Commissioner“enn Schilling

: George B. Simpson

Wm. L. Huffman, Director Darryl T. Owens

Steve Robbins

(Sax)

May 20, 1977

Messrs. McMurry & Livingston

Attorney at Law

713 Citizens Bank Building

Paducah, Kentucky 42001

Hon. George R. Effinger

Attorney at Law

720 Citizens Bank Building

Paducah, Kentucky 42001

Hon. Earl T. Shoup

Attorney at Law

Citizens Bank & Trust Co. Building

Paducah, Kentucky 42001

Hon. Joe A. Newberg

Attorney for Special Fund

Frankfort, Kentucky 40601

RE: James Lynel Wilson v. Chief Paduke Distributing

Company and Special Fund #1129982

Gentlemen :

On May 20, 1977, the Board, at a meeting of the full

Board, entered the following order:

AZ

“Tt is ordered by the Board that defendant’s petition

for reconsideration, filed herein May 6, 1977, be and

the same is hereby overruled.

It is further ordered by the Board that the motion for

attorney fee, filed herein April 27, 1977, be and the

same is passed until appeal time has expired from the

date of this order.”

Very truly yours,

(s) Wm. L. Huffman

Director

WLH:if

A8

McCRACKEN CIRCUIT COURT

DIVISION No. I

Board No. 1129982

Curer PaDUKE DisTRIBUTING Company - -_ Petitioner

v. Civil Action No. 16,516

James LyneL Witson, Specrat F'unp and

WorkMEN’s CoMPENSATION Boarp - - - Respondents

AND

James R. Yocom, Commissioner of Labor and

Custodian of the Specuzt Funp - - - Petitioner

v. Civil Action No. 16,496

James Lyne. Wison,

Curer Papuxke DistriutTine Company and

WorkMEn’s CompensaTION Boarp - - Respondents

FINDINGS OF FACT AND SUMMARY JUDGMENT

Upon motion of the respondent, James Lynel Wilson,

for summary judgment in the above-captioned consolidated

appeals, and a hearing having been held and all parties

being represented by counsel, the Court makes the follow-

ing findings of fact:

1. The Opinion and Award of the Workmen’s Compen-

sation Board rendered on April 25, 1977, is supported by

the evidence in the record.

2. While the arguments of the Special Fund and Chief

Paduke Distributing Company are somewhat persuasive

regarding the effect of KRS 342.740, the Court finds that

Statute to be decisive on the issues of the minimum amount

of compensation which is payable in a permanent partial

disability award.

A9

3. The Court further finds that the Opinion and Award

of the Board is in conformity with the controlling case of

Apache Coal Company v. Fuller, Ky., 541 S. W. 2d 933

(1976).

ORDER

Based upon the above findings, Ir Is Heresy Orperep,

DrrecteD anpD Apgupcep that the Board’s Opinion and

Award rendered on April 25, 1977, in the case of James

Lynel Wilson v. Chief Paduke Distributing Company and

the Special Fund, iv orkmen’s Compensation Board No.

1129982, is hereby affirmed on appeal to this Court, with

the defendants to pay the court costs of this action.

EnTEreED on this the 10th day of March, 1978.

/s/ Lloyd C. Emery, II

Judge, Div. I

McCracken Circuit Court

A Copy Attest:

Alfred Obermark, Clerk

By /s/ Karen Granner, D.C.

COURT OF APPEALS OF KENTUCKY

No. 78-CA-617-MR

Carer Papuxe Distremutine Company - - Appellant

Appeal From McCracken Circuit Court

v. Honorable Lloyd C. Emery II, Judge

Action No. 16496 & 16516

James Lyne. Wuson,

James R. Yocom, Commissioner of Labor and

Custodian of the Specian Funp, and

WorkMEn’s CompensaTION Boarp - - - - Appellees

AND

No. 78-CA-587-MR

James R. Yocom, Commissioner of Labor and

Custodian of the Specun Funp - - - Appellant

Appeal From McCracken Circutt Court

v. Honorable Lloyd C. Emery II, Judge

Action No. 16496 & 16516

James Lyne. Wison,

Curer Papuxe Distriutine Company, and

Workmen’s Compensation Boarp - - - Appellees

AFFIRMING

Berore: Vance, Hocce and Wurrz, Judges.

Hocez, Jupcz. This is a workmen’s compensation proceed-

ing in which the Special Fund and the employer, Chief

Paduke Distributing Company, have each filed an appeal

from the judgment of the McCracken Circuit Court. The

judgment being challenged affirmed an opinion and award

of the Workmen’s Compensation Board in which the claim-

ant, James Lynel Wilson, was found eligible for benefits.

Among the issues involved in the consolidated appeals are

whether the Board was correct in finding twenty percent

All

(20%) permanent partial disability as to the body as a

whole, and whether the interpretation of KRS 342.740(1)

found in Apache Coal Company v. Fuller, Ky., 541 S. W. 2d

933 (1976) is constitutionally valid.

The claim filed by James Lynel Wilson alleged that his

left knee was injured in two accidents on January 13, 1976

and March 25, 1976. The January accident occurred’ when

Wilson was building a display at a supermarket and fell

off the dock. The March accident occurred when he stepped

into a deep hole after visiting a tavern where he encouraged

the proprietor to stock his employer’s brand of beverage.

After the January incident, fluid was removed from

Wilson’s knee and he received shots for pain. In three

weeks, he returned to work, although he wore a knee brace

and the knee still gave him some discomfort. He had a

helper on the truck to assist him in the heavy work. After

the second accident, fluid was again removed from the

knee, and Wilson was given a fiber glass cast. The knee

gives away periodically and he experiences pain. Wilson

now walks with a brace and cane.

Wilson’s left knee was first hurt in 1956 at Osan Air

Base in Korea. In 1958, he had a cartilage operation on

the knee. In 1963 his knee was again hurt in an auto acci-

dent in Chicago, where he was hospitalized as a result of

his injuries. The knee eventually healed and in seven

months W"'son was able to go back to work, although he

occasionally wore an elastic support on colder days.

The Workmen’s Compensation Board found Wilson to

be twenty percent (20%) disabled. Fifteen percent (15%)

of his disability was found to be pre-existing and therefore

non-compensable. Of the remainder, two percent (27%)

was found to be the result of a work-related injury of

January 13, 1976, and three percent (3%) was found to be

the result of the arousal of a dormant, non-disabiing disease

or condition. The injury ef March 25, 1976 was held to be

not work-related and therefore non-compensable. Wilson

Al2

was awarded $32.00 per week in benefits. pursuant to the

minimum benefits principle set forth in Apache Coal Com-

pany v. Fuller, supra. The opinion and award was affirmed

by the Circuit Court.

The first issue before us in this case is whether the

Board erred in finding that the injury of January 13, 1976

resulted in permanent partial disability to the body as a

whole. The brief for Chief Paduke Distributing Company

contends that whatever disability was added to Wilson’s

pre-existing condition resulted from the injury of March

1976, which was not work-connected.

This Court will not set aside the findings of fact of the

Workmen’s Compensation Board where there is suvstantial

evidence of probative value to support those findings.

Holman Enterprise Tobacco Warehouse v. Carter, Ky., 536

S. W. 2d 461 (1976); Yocom v. Pierce, Ky., 534 S. W. 2d

796 (1976). We believe there is such evidence to support

the finding that the accident of January 13, 1976 resulted

in partial disability. Although Wilson had _ periodically

worn an elastic support prior to the January incident, a

stronger brace was prescribed after the incident. Dr.

Beard stated that after the January accident he advised

Wilson that “he could not return to work as he was, but he

should have someone to help him.” Wilson returned to

work wearing a brace, and assisted by a helper. When he

returned, he was still experiencing discomfort and was

taking medicine. Dr. Beard testified that the January and

March accidents each added ten percent (10%) disability

to the knee. In view of the evidence, in the record to sup-

port it, the finding of the Board will not be overturned.

The second issue before us is whether the Board erred

in finding permanent partial disability to the body as a

whole, rather than to a member. It is argued that Dr.

Beard spoke initially of disability to the knee, and that

furthermore that in view of the minimal additional disability

which could be attributed to the 1976 injuries, there was nq

A13

reason to think in terms of disability to the body as a

whole. We note /that the latter part of Dr. Beard’s deposi-

tion, testimony was given as to the amount of disability as

to the body as a whole. We are not disturbed by the fact

that the percentage of disability is low. As the Supreme

Court of Kentucky stated in Blair v. General Electric Com-

pany, Ky., 565 S. W. 2d 631, 634 (1978), “The statute does

not say that the degree of such loss or limitation shall be

substantial or that it be reflected ir an immediate reduction

in pay. If the injury ‘adversely affects’ the workman’s

ability to labor’ or his ‘occupational opportunities,’ then

this compensation benefits shall not be limited’ to the

schedule.” See also KRS 342.730(1)(c) 27. We believe

that there is substantial evidence in the record to support

the conclusion that the January injury adversely affected

Wilson’s ability to labor. Dr. Beard stated that he told

Wilson after treating him following the January accident

that he could not return to work without help. He felt that

Wilson could not have continued the heavy work that he

did — carrying heavy cases of beverages—on the knee.

There is an inference in the record that Dr. Beard would

have discouraged Wilson from trying to return to his

former job in March except for the fact that he felt Wilson

had no option other than labor, in view of his lack of edu-

cational background. Doctor Beard testified that the Jan-

uary injury resulted in disability as to the body as a whole.

final issue before us is the validity of the minimum

benefits principle as interpreted in Apache v. Fuller, supra.

As recently as Yocom v. Gantley, Ky. App., 566 8. W. 2d

176 (1978), KRS 342.740(1), as interpreted in Apache, was

challenged on the grounds it violated sections 2, 3 and 59

of the Kentucky Constitution and the Due Process and

Equal Protection clauses of the Fourteenth Amendment of

the Constitution of the United States. This court declined

to hold KRS 342.740(1), as interpreted in Apache, uncon-

stitutional. In addition to those arguments raised in

Alé4

Yocom v. Gantley, the appellants also urge application of

the principle that statutes should be construed to bring

about an equitable and just result, and not an absurdity.

George v. Alcoholic Beverage Control Board, Ky., 421 S. W.

2d 569 (1967). Apache v. Fuller was decided June 11, 1976.

A petition for rehearing was denied November 12, 1976.

Although the question of the constitutionality of KRS

342.740 in its application was not specifically decided in

Apache, the Supreme Court by denying diseretionary re-

view in Yocom v. Gantley, supra, implicitly decided the

issue. We regard Apache as a recent statement by the

Supreme Court of what it has concluded the plain language

of KRS 342.740(1) meant prior to the amendment of KRS

342.730(1)(b) in response to Apache, and we feel that its

constitutionality has been decided in Yocom v. Gantley.

The judgment is affirmed.

Aut Concur.

Attorney for Chief Paduke Distributing Company:

EARLE T. SHOUP

Citizens Bank Building

Paducah, Kentacky 42001

Attorney for James Wilson:

W. FLETCHER McMURRY SCHROCK

McMarry & Livingston

713 Citizens Bank Building

Paducah, Kentucky 42001

Attorneys for Special Fund:

CYRIL E. SHADOWEN

Assistant Counsel

Department of Labor

801 West Jefferson

Louisville, Kentucky 40202

KENNETH E. HOLLIS

General Counsel

Department of Labor

US. 127 South

Frankfort, Kentucky 40601

*'

Ald

COURT OF APPEALS OF KENTUCKY

No. 78-CA-617-MR

Curer Papuxe Distrisutine Company - - Appellant

Appeal From McCracken Circuit Court

v. Honorable Lloyd C. Emery II, Judge

Action No. 16496 & 16516

JamMEs LyneL Wuison,

James R. Yocom, Commissioner of Labor and

Custodian of the Sprcran Funp, and

WorkMeEn’s CoMPpensaTION Boarp - - - - Appellees

AND

No. 78-CA-587-MR

James R. Yocom, Commissioner of Labor and

Custodian of the Spzecian Funp - - - Appellant

Appeal From McCracken Circuit Court

v. Honorable Lloyd C. Emery II, Judge

Action No. 16496 & 16516

James Lyne, Wuson,

Curer Papuxe Distrarsutine Company, and

WorkMen’s Compensation Boarp - - - Appellees

ORDER DENYING PETITION FOR REHEARING

BerorE: Vance, Hosce and Waits, Judges.

The Court having considered the Petition for Rehearing

and being sufficiently advised, it is OrprrEp that the same

is hereby Dentep.

Enterep: April 27, 1979

/s/ John D. White

Judge, Court of Appeals

A16

SUPREME COURT OF KENTUCKY

79-8C-224-D

(78-CA-617-MR)

a

Curer Papuxe Distrisutinc Company - - - Movant

v.

James Lyne. Wrison,

James R. Yocom, Erc.,Er Au. - - - - Respondents

McCracken Circuit Court

16496 and 16516

ORDER DENYING DISCRETIONARY REVIEW

The mo‘*ion of Chief Paduke Distributing Company for

a review of the decision of the Court of Appeals is denied,

and the decision stands affirmed.

Enterep June 26, 1979.

/s/ John S. Palmore

Chief Justice

Al7

SUPREME COURT OF KENTUCKY

79-80-235-D

(78-CA-587-MR)

James R. Yocom, Commissioner of Labor and

Custodian of the Specian Fund - - - - Mo vant

v.

JaMEs Lynen Wiison, Er Au. - - - - Respondents

McCracken Circuit Court

16496 and 16516

ORDER DENYING DISCRETIONARY REVIEW

The motion of James R. Yocom, Commissioner of Labor

and Custodian of the Special Fund, for a review of the

decision of the Court of Appeals is denied, and the decision

stands affirmed.

ENTERED June 26, 1979.

/s/ John 8S. Palmore

Chief Justice

A118

OPINION RENDERED: MAROH 2, 1979

COURT OF APPEALS OF KENTUCKY

Cuier Papuxe Distrrmvutine Company |

" | Bile No.

.

James Lynet Wison, 78-CA-617-MR

James R. Yocom, Commissioner, Erc.,

Waa - Se ee

MANDATE —Issued June 28, 1979

The opinion rendered on the above date, a copy of which

is attached hereto and made a part hereof, is now final. It

appearing thet there is no error in the judgment of the

Circuit Court, it is therefore the mandate of this Court that

said judgment is hereby AFFIRMED.

Apri 27, 1979—Appellee & Appellant’s Petition for Re-

hearing Denied.

June 26, 1979—Movant’s Motion for Discretionary Re-

view by Supreme Court Denied.

A Copy - Attest:

(Szax)

Issued: June 28, 1979

/s/ John C. Scott, Clerk

A119

OPINION RENDERED: MARCH 2, 1979

COURT OF APPEALS OF KENTUCKY

James R. Yooom, Commissioner of |

Labor and Custodian of Spor.

EY UR re ae oe

i i File No.

< 78-CA-587-MR

James Lynet Wuson,

Curer Papuxke Distrisutine Company,

SS RSE RP eg ane ene ee

4

MANDATE —Issued June 28, 1979

The opinion rendered on the above date, a copy of which

is attached hereto and made a part hereof, is now final. It

appearing that there is no error in the judgment of the

Circuit Court, it is therefore the mandate of this Court that

said judgment is hereby ArriRMED.

Aprm 27, 1979—Appellant’s Petition for Rehearing

Denied.

June 26, 1979—Movant’s Motion for Discretionary Re-

view by Supreme Court Denied.

A Copy - Attest:

(Sav)

Issued: June 28, 1979

/s/ John C. Scott, Clerk