RENDERED: JANUARY 8, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0251-WC

BRENDA MARKS APPELLANT

PETITION FOR REVIEW OF A DECISION

v. OF THE WORKERS’ COMPENSATION BOARD

ACTION NO. WC-17-93657

BAPTIST HEALTHCARE SYSTEM, 

INC.; HONORABLE BRENT 

DYE, ADMINISTRATIVE LAW 

JUDGE; KENTUCKY WORKERS’

COMPENSATION BOARD; AND 

HONORABLE DANIEL CAMERON, 

ATTORNEY GENERAL OF KENTUCKY APPELLEES

OPINION

AFFIRMING

**   **  **

BEFORE: LAMBERT, MCNEILL, AND TAYLOR, JUDGES.

TAYLOR, JUDGE: Brenda Marks petitions this Court to review a January 24, 

2020, Opinion of the Workers’ Compensation Board (Board) affirming the 
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Administrative Law Judge’s (ALJ) award of permanent partial disability benefits 

and permanent total disability benefits for two separate work-related injuries. We 

affirm.

Marks was employed by Baptist Healthcare, Inc., as a housekeeper. 

She suffered two separate work-related injuries; the first injury was to her right 

shoulder on June 24, 2016, and the second was to her left shoulder on February 11, 

2017.

As a result of these injuries, Marks filed claims for workers’

compensation benefits. In an Opinion, Award, and Order rendered February 22, 

2019, the ALJ awarded Marks permanent partial disability benefits for the June 24, 

2016, right shoulder injury and permanent total disability benefits for the February 

11, 2017, left shoulder injury. The ALJ also concluded that Kentucky Revised 

Statutes (KRS) 342.730(4), as amended on July 14, 2018, retroactively applied to 

Marks’ claims.1

Marks sought review with the Board. Marks argued that the ALJ 

erred by retroactively applying the amended version of KRS 342.730(4) and the 

retroactive application of KRS 342.730(4) was unconstitutional. By Opinion 

entered January 24, 2020, the Board affirmed the ALJ’s award. The Board 

concluded that the ALJ properly applied KRS 342.730(4) retroactively to Marks’

 

1 Brenda Marks was born on August 12, 1951.
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claims and cited as authority Holcim v. Swinford, 581 S.W.3d 37 (Ky. 2019). As 

the Board lacked authority to pass upon the constitutionality of a statute, the Board 

did not reach the merits of Marks’ constitutional challenge to the retroactive 

application of the amended version of KRS 342.730(4). This review follows.

Marks contends that retroactive application of the amended KRS 

342.730(4) is unconstitutional. In particular, Marks argues that retroactive 

application of the amended KRS 342.730(4) violates the Contract Clause set forth 

in Article 1, Section 10 of the United States Constitution and in Section 19 of the 

Kentucky Constitution:

The retro-active [sic] provisions of KRS 342.730(4) 

significantly decrease the benefits available to an injured 

worker. Here, the provisions arguably decrease Brenda’s 

benefits by her life expectancy after she reaches age 70. 

Pursuant to the life expectancy tables of 803 KAR 25:036 

used in workers’ compensation claims, that is 15.5 years 

for a 70-year-old-woman. Therefore, the retro-active 

[sic] provisions impair the obligation of the contract for 

workers’ compensation benefits. These retroactive 

provisions did not remedy a broad and general social or 

economic problem. . . . 

The injured worker is not allowed to reject the 

exclusivity provisions of workers’ compensation after the 

injury, and the injured worker’s benefits are set as of the 

date of the injury. Accordingly, the retroactive 

provisions of KRS 342.730(4) should be voided. . . . 

Marks’ Brief at 9. 

We begin by setting forth KRS 342.730(4), as amended July 14, 2018:
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All income benefits payable pursuant to this chapter 

shall terminate as of the date upon which the employee 

reaches the age of seventy (70), or four (4) years after the 

employee’s injury or last exposure, whichever last 

occurs. In like manner all income benefits payable 

pursuant to this chapter to spouses and dependents shall 

terminate as of the date upon which the employee would 

have reached age seventy (70) or four (4) years after the 

employee’s date of injury or date of last exposure, 

whichever last occurs.

The Kentucky Supreme Court has set forth the following standard to 

determine whether a statute violates the Contract Clause:

(1) whether the legislation operates as a substantial 

impairment of a contractual relationship; (2) if so, then 

the inquiry turns to whether there is a significant and 

legitimate public purpose behind the regulation, such as 

the remedying of a broad and general social or economic 

problem; and (3) if, as in this case, the government is a 

party to the contract, we examine “whether that 

impairment is nonetheless permissible as a legitimate 

exercise of the state’s sovereign powers,” and we 

determine if the impairment is “upon reasonable 

conditions and of a character appropriate to the public 

purpose justifying its adoption.”

Maze v. Bd. of Dirs. for Commonwealth Postsecondary Educ. Prepaid Tuition 

Trust Fund, 559 S.W.3d 354, 369 (Ky. 2018). Our analysis shall proceed 

accordingly.

First, as to whether the amended KRS 342.730(4) substantially 

impairs the contractual relationship, we believe that it does not. In determining 

whether a contractual relationship is substantially impaired, the Kentucky Supreme 
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Court has instructed that “[a] significant consideration . . . is the extent to which 

the industry . . . [has been] subject to the contract . . . [being] regulated in the past.” 

Maze, 559 S.W.3d at 370 (citations omitted). Emphasizing this point of law, the 

Supreme Court noted that “[o]ne whose rights, such as they are, are subject to state 

restriction, cannot remove them from the power of the State by making a contract 

about them.” Id. (quoting Hudson Water Co. v. McCarter, 209 U.S. 349, 357 

(1908)). The rights of workers’ compensation claimants are subject to legislative 

enactment, including the duration of income benefits. Consequently, we think that 

Marks’ contractual rights were not substantially impaired by retroactive application 

of KRS 342.730(4).

Second, we must examine whether there is a legitimate public purpose 

that supports the retroactive application of KRS 342.730(4). By limiting the 

duration of income benefits, the amended KRS 342.730(4) decreases the 

duplication of benefits by limiting the amount of time a worker receives both 

income benefits and social security benefits, and it results in significant savings to 

the workers’ compensation system. We, thus, conclude that a legitimate public 

purpose exists for retroactive application of KRS 342.730(4).

Third, we must determine “whether the adjustment of ‘the rights and 

responsibilities of contracting parties [is based] upon reasonable conditions and [is] 

of a character appropriate to the public purpose justifying [the legislation’s] 
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adoption.’” Maze, 559 S.W.3d at 372 (quoting U.S. Trust Co. of New York v. New 

Jersey, 431 U.S. 1, 22 (1977)). And, “[w]hen the state itself is not a contracting 

party, ‘[a]s is customary in reviewing economic and social regulation, . . . courts 

properly defer to legislative judgment as to the necessity and reasonableness of a 

particular measure.’” Maze, 559 S.W.3d at 372 (quoting United States Trust, 431 

U.S. at 22-23)). As the state is not a party to the contract herein, we must defer to 

legislative judgment. Accordingly, we are of the opinion that retroactive 

application of KRS 342.730(4) does not offend the Contract Clause of the United 

States Constitution or the Kentucky Constitution.

We view any remaining contentions as moot.

In sum, we cannot conclude that the Board misconstrued controlling 

statutes or precedent or committed an error in assessing the evidence. W. Baptist 

Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).

For the foregoing reasons, we affirm the Opinion of the Workers’

Compensation Board. 

ALL CONCUR.
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BRIEF FOR APPELLANT:

Scott F. Scheynost

Louisville, Kentucky

BRIEF FOR APPELLEE BAPTIST 

HEALTHCARE SYSTEM, INC.:

Douglas A. U’Sellis

Louisville, Kentucky

BRIEF FOR APPELLEE 

HONORABLE DANIEL CAMERON, 

ATTORNEY GENERAL OF 

KENTUCKY:

S. Chad Meredith

Matthew F. Kuhn

Frankfort, Kentucky