RENDERED: SE

2020-SC-0013-WC

PORTER SLAUGHTER APPELLANT

ON APPEAL FROM COURT OF APPEALS

V. CASE NO. 2018-CA-1667-WC

WORKERS ’ COMPENSATON BOARD

NO. 97-WC-71438

TUBE TURNS; APPELLEES

HON. DOUGLAS W. GOTT, CHIEF

ADMINISTRATIVE LAW JUDGE; DANIEL

CAMERON (FORMERLY ANDY BESHEAR),

KENTUCKY ATTORNEY GENERAL; AND

WORKERS ’ COMPENSATION BOARD

OPINION OF THE COURT BY JUSTICE NICKELL

AFFIRMING

Porter Slaughter appeals from a Court of Appeals Opinion and Workers ’

Compensation Board ( “ Board ” ) decision affirming the determination of the Chief

Administrative Law Judge ( “ CALJ ” ) denying a motion to reopen his workers ’

compensation claim as time barred under the 2018 amendment to KRS 1

342.125(3). We affirm.

1 Kentucky Revised Statutes.While employed by Tube Turns on March 27, 1996, Slaughter incurred a

work-related injury to his right shoulder. On April 8, 1997, he incurred

another work-related injury, this time affecting his left shoulder, chest, and

neck. The two claims were consolidated, and a settlement agreement was

approved on November 27, 1997. Income benefits were paid for Slaughter ’ s

right shoulder injury, but no mention of the left shoulder injury appeared in

the settlement agreement. Slaughter remained entitled to medical treatment

for the left shoulder and did not waive medical expenses.

In 1999, Slaughter moved to reopen the left shoulder claim. The motion

was denied as untimely under the then-current version of KRS 342.125(3). A

2001 motion to reopen was denied on the same grounds. After undergoing left

shoulder surgery, Slaughter filed another motion to reopen on November 2,

2016. Slaughter was awarded medical expenses related to the surgery and

temporary total disability ( “ TTD ” ) benefits from the date of filing the motion to

reopen through March 30, 2017.

On July 10, 2018, Slaughter once again moved to reopen the left

shoulder claim, asserting he was entitled to income benefits based on a recent

left shoulder surgery and resulting increased impairment. Tube Turns objected

to reopening, contending recent amendments to KRS 342. 125(3) 2 prohibited

2 KRS 342.125(3), as amended in 2018, states in pertinent part:

no claim shall be reopened more than four (4) years following the date of the original award or original order

granting or denying benefits, when such an award or order

becomes final and nonappealable, and no party may file a

motion to reopen within one (1) year of any previous motion

to reopen by the same party. Orders granting or denying

2reopening more than four years after an original award. Citing Hall v.

Hospitality Resources, Inc., 276 S.W.3d 775 (Ky. 2008), Slaughter asserted his

recent award of medical expenses and TTD benefits related to his left shoulder

surgery acted to extend the limitations period contained in the statute and,

therefore, the current motion was not untimely.

The CALJ agreed with Tube Turns and denied the motion. The Board

affirmed, and Slaughter appealed. In affirming the Board, the Kentucky Court

of Appeals, concluding Hall had been superseded by the 2018 amendment to

KRS 342.125(3), held motions to reopen must be filed within four years of the

original order granting or denying benefits and subsequent orders or awards

did not act to extend the limitations period. Further, the Court of Appeals held

in enacting KRS 342.125(8) 3

, the General Assembly expressly declared the

2018 amendment to KRS 342.125(3) was to be retroactively applied. Finally,

benefits that are entered subsequent to an original final

award or order granting or denying benefits shall not be

considered to be an original order granting or denying

benefits under this subsection and shall not extend the

time to reopen a claim beyond four (4) years following the

date of the final, nonappealable original award or original

order.

(Emphasis added to indicate language added by amendment.)

3 A n ew section, KRS 342.125(8) states:

The time limitation prescribed in this section shall apply to

all claims irrespective of when they were incurred, or when

the award was entered, or the settlement approved.

However, claims decided prior to December 12, 1996, may

be reopened within four (4) years of the award or order or

within four (4) years of December 12, 1996, whichever is

later, provided that the exceptions to reopening established

in subsections (1) and (3) of this section shall apply to these

claims as well.

3although Slaughter had raised a constitutional challenge to the amended

statute before the Board, 4 the Court of Appeals noted he did not pursue that

avenue of attack on appeal, and thus no further comment On the issue was

warranted. This appeal followed.

Before this Court, Slaughter attempts to revive his constitutional

challenge to the 2018 amendment. However, because he failed to raise such a

challenge in the Court of Appeals, the issue is not properly before us. Holcim v.

Sunnford, 581 S.W.3d 37, 44 (Ky. 2019). In addition, Slaughter failed to follow

the mandates of KRS 418.075 in timely notifying the Attorney General of a

constitutional challenge to the statute. Slaughter cannot now raise an

abandoned theory of error and we decline his invitation to address the matter.

Finally, Slaughter asserts his motion to reopen was timely as it was filed

within four years of the award granting him medical expenses and TTD

benefits, again relying on Hall. In Hall, this Court opined the phrase “ original

award or order granting or denying benefits ” contained in the then-current

version of KRS 342.125(3) “ was intended to encompass orders granting benefits

other than the ‘ original award [ .] ” 276 S.W.3d at 784-85. It is this language

upon which Slaughter relies without discussing or acknowledging the amended

statutory provisions which plainly undercut his reasoning.

4 As an administrative tribunal, the Board concluded it did not have

jurisdiction to determine the constitutionality of a statute and declined to address the

argument.

4By inserting “ original ” before “ order granting or denying benefits, ” and

explicitly specifying subsequently entered orders granting or denying benefits

after the initial award are not to be considered an “ original order ” for purposes

of extending the statutory deadline, the legislature has removed any doubt

about its intent following our decision in Hall. Thus, Slaughter ’ s reliance on

our prior holding is misplaced.

Further, in the 2018 amendment, the General Assembly included a new

section, KRS 342.125(8), which specifies the time limitations set forth

elsewhere in the statute are to be applied to “ all claims irrespective of when

they were incurred, or when the award was entered, or the settlement

approved. ” In Section 20(2) of Kentucky House Bill 2 (2018 Ky. Acts ch. 40)

—

the Act containing the amendments at issue

— the General Assembly expressly

declared the newly amended version of KRS 342.125 to be

remedial and shall apply to all claims irrespective of the date of

injury or last exposure, provided that, as applied to any fully and

finally adjudicated claim, the amount of indemnity ordered or

awarded shall not be reduced and the duration of medical benefits

shall not be limited in any way.

Thus, the General Assembly has made a declaration concerning retroactivity

and the amended language of KRS 342.125 clearly applies to Slaughter ’ s claim.

Therefore, the CALJ correctly denied Slaughter ’ s motion to reopen his claim as

untimely.

For the foregoing reasons, the decision of the Court of Appeals is

AFFIRMED.

All sitting. All concur.

5COUNSEL FOR APPELLANT:

Wayne Charles Daub

COUNSEL FOR APPELLEE, TUBE TURNS:

Gregory Lonzo Little

Matthew Jason Zanetti

FERRERI PARTNERS, PLLC

Daniel Jay Cameron

Attorney General of Kentucky

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