Brooks v. Island Creek Coal Co.

678 S.W.2d 791, 1984 Ky. App. LEXIS 551

• Court: Court of Appeals of Kentucky
• Decided: August 3, 1984
• Status: Published

Opinions

HAYES, Chief Judge:

The only issue with merit in these two workers’ compensation cases, consolidated for appeal purposes, is whether the phrase in KRS 342.730(l)(b) that “but such benefits shall not be paid after the employee becomes eligible for normal old age benefits under the Federal Old Age, Survivors and Disability Insurance Act ...” is so vague and ambiguous as to violate the workers’ due process and equal protection rights guaranteed by the Federal and State Constitutions. We interpret the statutory provision to be constitutional.

In deciding whether an act of the General Assembly of Kentucky is unconstitutional we necessarily begin with the strong presumption in favor of constitutionality and should so hold if possible. United Dry Forces v. Lewis, Ky., 619 S.W.2d 489 (1981), and Sims v. Board of Education of Jefferson County, Ky., 290 S.W.2d 491 (1956). If we assume that the rationale behind the enactment of the statute here was in large part the prevention of the duplication of wage losses, and we believe that to be a valid assumption, then it is implicit in the construction of the statute that the legislature intended the phrase “eligible for normal old age benefits” to include drawing or receiving same. We are dealing with a statutory provision enacted in 1980 and repealed in 1982 by the General Assembly — a life span of two (2) years (effective dates: July 15, 1980 — July 15, 1982).

Under this interpretation of the legislative intent, the worker between the ages 65-70 (who is eligible for normal retirement benefits) but who has chosen not to draw the normal benefits to which he is eligible, for whatever reason, would not come under the provisions of the statutory restriction unless and until such time he chose to receive social security.

Eligibility for normal benefits under the present law, is, as the trial court held, at age 65.

The appellant, Ogelsby, raises the only other issue deserving of comment. He argues that the ex parte medical reports, which were attached to the application form required by KRS 342.316(2)(b)(l) have evidentiary value and should have been given weight by the Board, even though the doctors never testified in the case. The trial court correctly held:

In this court’s opinion, the Board was not required to adopt such opinions. The Board had before it and obviously considered testimony from some nine (9) other physicians, whose depositions were included in the record. The Form 11 reports were only required to be filed in order to entitle the claimant to the presumption of compensable disability in the event the claim was uncontested or at least unrebutted by medical evidence.

As noted in Young v. Daniels, Ky., 481 S.W.2d 295 (1972), the reports serve as a means for early settlement and handling of uncontested claims and to provide a default judgment procedure in uncontested claims.

In appellant Oglesby’s case, once his claim became contested and evidence was introduced, the ex parte reports as such have no probative value and thus the Board was not required to consider same. Of course, the appellant Oglesby could have deposed the doctor, in which case this issue would not be before us. The reports under 803 KAR 25:010 § 3(3) were merely a part of the pleadings in Oglesby’s claim for compensation.

The trial court’s opinion in both these cases is affirmed except that part of the opinion that terminates benefits upon each appellant reaching the age of 65. The full benefits will continue for each appellant until the appellant becomes 65 and is drawing or receiving social security benefits.

GUDGEL, J., concurs.

COMBS, J., dissents with separate opinion.