In March, the Kentucky Court of Appeals rendered a consolidated opinion in three cases (each involving a claim against a mining company), collectively styled Napier v. Enterprise Mining, ____ SW3d _____, Case No. 2014-CA-001473-WC (Ky. Ct. App. 2018). It is a panel decision in which three appellate judges concurred (Kramer, Clayton and Nickell).
The cases "present(ed) a common equal protection constitutional challenge to a statute that provides for "compensation for occupational hearing loss." The statute refers to the American Medical Association Impairment Guides, and requires that any hearing impairment be expressed as an "impairment of the whole person." If the resulting impairment is less than 8% to the body as a whole, then but the benefits do not include "income benefits." The Court concluded that this distinction "violates equal protection guarantees established in the Fourteenth Amendment to the United States Constitution, as well as specific sections of the Kentucky Constitution.
Physicians assigned Mr. Napier "a 4% impairment rating" regarding his hearing loss. The assigned administrative law judge (ALJ) concluded that the indemnity statute distinction violates the equal protection clause, following a Kentucky Supreme Court decision in Vision Mining, Inc. v. Gardner, 364 S.W.3d 455 (Ky. 2011). Upon rehearing, the ALJ conceded that she/he lacked "authority to determine statutory constitutionality," and therefore did not award indemnity benefits. The Kentucky Board (an administrative body to whom parties may appeal an ALJ decision) concluded it also lacked that authority regarding constitutionality and therefore affirmed the ALJ decision. The other two injured workers whose appeals were consolidated with Mr. Napier's similarly did not meet the 8% impairment threshold.
It is worthy of note that in the testimony regarding another worker, Mr. Feltner, an expert addressed a related issue pertinent to America's discussion of the interrelationship of "impairment" and "disability." She opined that the "impairment" defined in the Guides to Permanent Impairment for Mr. Feltner's injury "inadequately evinced his substantial functional loss and occupational restrictions." In a broad analysis, there are instances in which an "impairment" may result in the entitlement to benefits despite no resulting loss of wage earning capacity and others in which the loss of wage earning may be more profound than is compensated by an "impairment" calculation. This disconnect has been debated in various contexts and jurisdictions.
There was further testimony that "varying levels of hearing loss can impact individuals differently." That is, a specific loss of hearing acuity for one person, and the resulting impairment may present greater "functional difficulties and workplace impediments" for one individual than for another. The point is, again, that "impairment" is not the same as "disability."
The constitutional challenges in Napier were founded on two bases: (1) that hearing loss claims have a threshold (8%) that is not consistent with the absence of threshold for other traumatic claims (worker with hearing loss treated differently than worker with back injury), and (2) that those with less than 8% impairment are arbitrarily treated differently than workers with an 8% impairment from hearing loss. In both arguments, the foundation is what the law calls "disparate treatment," that is people similarly situated being nonetheless treated differently.
The Court quoted Cain v. Lodestar Energy, Inc., 302 S.W.3d 39 (Ky. 2009), holding that "[t]he 14th Amendment to the United States Constitution requires persons who are similarly situated to be treated alike." It noted that workers’ compensation statutes "are presumed to be valid" and compliant with the 14th Amendment "if the classifications that they create are rationally related to a legitimate state interest."
The Napier court concluded that the law imposes "different statutory treatment for awards of PPD income benefits." It noted that the AMA Guides provide "estimates that reflect the severity of the medical condition and the degree to which the impairment decreases an individual’s ability to perform common activities of daily living, excluding work." It concluded that the Kentucky legislature, enacting the reliance on such Guides, "understood impairment and disability are not synonymous." Further, the Guides themselves state they “were designed to reflect functional limitations and not intended to measure disability.”
The Court concluded that establishing the threshold of 8% "segregates all traumatic hearing loss claimants into a special class, isolating them from all other traumatic injury claimants." That is, all hearing loss cases are thus tested, and so all are treated differently than other types of claims. It further agreed that the threshold "erects a wall of separation between two subclasses of hearing loss claimants," those who meet the 8% and those who do not. In each instance, the statute treats workers differently. The Court noted that in enacting this 8% distinction, the legislature was silent regarding the justification for such disparate treatment.
The Court explained that disparate treatment alone is not dispositive of the analysis. The second factor for consideration is whether the classes of workers thus created "are similarly situated." The Court concluded that in both instances, hearing claims versus other injuries and hearing claims under versus over the threshold, "are in all relevant and consequential respects similarly situated."
The decision includes a discussion of the history of Kentucky Supreme Court vacillation. In 1994, that court concluded that an "irrebuttable presumption of total disability for coal miners’ pneumoconiosis" was not a violation of equal protection. In Kentucky Harlan Coal Co. v. Holmes, 872 S.W.2d 446 (Ky. 1994), the court held that statute favoring injured workers in one industry over those in another industry to be constitutionally sound. However, "seventeen years later," the same court discerned "no rational basis” for the disparate treatment based upon specific industries. Vision Mining, Inc. v. Gardner, 364 S.W.3d 455 (Ky. 2011). Analogizing to those decisions that treat certain employers differently under the law, the court in Napier drew a parallel analysis to Vision, the most recent opinion of the Kentucky Supreme Court.
Finally, the court addressed the Kentucky Legislature's reason for creating this distinction for various hearing loss claims. The analysis in this regard is "whether the differing treatment" is "rationally related to achieving a legitimate state interest." The court concluded that "Vision Mining is dispositive regarding this issue." It quoted that decision, and its explanations for its reversal of Holmes, essentially attempting justification by labeling Vision Mining as presenting a "first challenge." The Vision Mining court purportedly responded to a new and different argument of constitutional infirmity than that previously raised. Some will see that logic and others will refute it. Kentucky's record regarding stare decisis has been discussed here before (October 2015).
The court concluded that "by denying PPD income benefits to those failing to reach its heightened impairment rating threshold (8%), the statute improperly affords governmentally sanctioned separate and unequal treatment to a subclass of hearing loss claimants." The court stated "it is disingenuous to suggest the heightened impairment rating threshold in KRS 342.7305(2) offsets any greater dishonesty, inability, or incompetence among physicians evaluating occupational hearing loss, and any such suggestion “encapsulates the very meaning of arbitrariness, irrationality, and unreasonableness.”
Of course, some readers will find the outcome axiomatic. The conclusion may be seen as akin to "of course, the law cannot arbitrarily treat people differently." However, the Kentucky Supreme Court's vacillating analysis between Holmes and Vision may suggest that courts will sometimes sanction discrimination, at least for a time.
Others may instead question whether there are other statutes that are similarly discriminatory. For example, in 2018, the Florida Legislature passed Senate Bill 376, discussed at length in I'm Just a Bill - PTSD in Florida (March 2018). This bill will become law on October 1, 2018, and elevates "first responders" for different treatment under the law. It does so not by amending the Florida workers' compensation law, but instead by adding language to section 112.1815, Florida Statutes, which changes benefits for first responders "notwithstanding" the provisions and limitations of the workers' compensation law. This bill is not the first such beneficial provision. First responders in Florida are already treated differently than all other workers as regards various cardiopulmonary claims.
A hypothetical PTSD example might be of assistance. Last Valentine's Day, a student was accused of entering a Florida high school and killing 17 people and injuring multiple others. A Broward Sheriff's deputy on the scene elected not to enter the school to confront the shooter, which itself generated significant news coverage. When the shooting was over, and the shooter had fled the scene, students, teachers, and staff evacuated the scene. Evacuees lost friends and peers in the violence. Some of those evacuees likely saw their dead and wounded friends and peers as they exited. That experience is undoubtedly traumatic, emotional, and devastating.
The wounded were transported to local hospitals where triage nurses, emergency room doctors, surgeons, and other staff encountered them and their wounds. Employees of the medical examiner likely had to visit the school to retrieve the deceased. Someone had to later enter that building to repair physical damage and clean the results of the violence. Teachers and staff later had to return to work at that school. Thereafter, Senate Bill 376 was passed and will soon become law; benefits for PTSD injury to first responders will be statutorily different than for other Florida workers.
I have heard people question "What if such an event occurred after October 1, 2018, with identical facts?" There is curiosity about whether the police officer (first responder) who did nothing to stop the attack might nonetheless be eligible for benefits for PTSD based on his observations following the event. There are questions as to why that worker would be potentially entitled to such benefits that would perhaps be nonetheless denied to the teachers, janitors, and other school staff who worked through, responded to, survived after, and returned to work after the attack. Some have suggested that treating first responders differently amounts to "disparate treatment" and is therefore not appropriate under the equal protection clause of the United States Constitution, similar to the Kentucky court's Napier conclusions.
In that context, there have also been those who voice similar concerns with the manner in which first responder benefits for heart disease are seemingly treated differently from the illness of other workers. Some posit that the presumption in favor of compensability for firefighters, police, and others creates protections that they enjoy but that other workers do not.
At conferences over the years, I have heard attorneys opine regarding the first responder benefit enhancements. It is safe to say that there does not appear to be a consensus regarding these enhancements and the Equal Protection Clause. That is not surprising as the Equal Protection Clause is a complex and difficult analysis at times, which is evidenced by the fact that the Kentucky Supreme Court has struggled even to agree with itself regarding the appropriate interpretation.
Whether any constitutional infirmity actually exists, of course, will be unknown unless a challenge is raised in the courts. Like Kentucky, the Florida workers' compensation trial judges (JCCs) have no authority to conclude a statute is unconstitutional. Thus, any such challenge might be raised before a Judge of Compensation Claims for the purpose of obtaining testimony and other evidence (the "record"), but any decision on a constitutional question would be for the First District Court on appeal.
In the meantime, such questions are perhaps merely interesting to think about or to discuss over a glass of iced tea at the annual workers' compensation conference in Orlando.
