# Petition — Chief Paduke Distributing Co. v. Wilson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0954%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 444 U.S. 951 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0954%3A1. Public record. Not legal advice.