RENDERED: APRIL 22, 2022; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0627-WC

GREGG ROBERTS APPELLANT 

v. 

PETITION FOR REVIEW OF A DECISION

OF THE WORKERS’ COMPENSATION BOARD

ACTION NO. WC-17-55817 

COMMONWEALTH DODGE; 

DANIEL CAMERON, ATTORNEY 

GENERAL; HONORABLE 

JONATHAN WEATHERBY, 

ADMINISTRATIVE LAW JUDGE; 

AND WORKERS’ COMPENSATION 

BOARD APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: COMBS, LAMBERT, AND K. THOMPSON, JUDGES.

LAMBERT, JUDGE: Gregg Roberts has petitioned this Court for review of the 

April 10, 2020, opinion of the Workers’ Compensation Board (the Board) 

affirming the May 28, 2019, opinion and award of the Administrative Law Judge 
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(ALJ). The ALJ directed that Roberts’ award of permanent, partial disability 

(PPD) benefits would terminate pursuant to the 2018 version of Kentucky Revised 

Statutes (KRS) 342.730(4). We affirm.

Roberts, who has a date of birth of January 16, 1955, began working 

as an auto parts driver for Commonwealth Dodge in August 2015. Roberts 

sustained an injury to his abdominal area during the course of his employment on 

October 3, 2017, when he was lifting a part, which caused him to develop a hernia. 

He filed an application for resolution of his injury claim on October 19, 2018. 

Contested issues after the benefit review conference included the duration of

benefits pursuant to KRS 342.730. 

The ALJ entered an opinion and award on May 28, 2019, finding that 

Roberts had a 9% impairment due to his work injury and awarded him PPD

benefits along with a three-multiplier pursuant to KRS 342.730(1)(c)1. because he 

was no longer able to return to the same type of work. The benefits were to 

“terminate pursuant to KRS 342.730(4).” The ALJ did not address the 

constitutionality issue that had been raised as he lacked the authority to do so. On 

Roberts’ petition for reconsideration, the ALJ entered an amended award and order 

on June 18, 2019. This order provided that Roberts would receive PPD benefits 

for 425 weeks but that “[a]ll benefits shall terminate pursuant to KRS 342.730(4) 

as amended by House Bill 2 effective July 14, 2018.” 
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Roberts appealed the ALJ’s decisions to the Board, naming the 

Attorney General as a respondent. On Roberts’ motion, the Board placed the 

appeal in abeyance pending a final decision by the Supreme Court of Kentucky in 

Holcim v. Swinford, 581 S.W.3d 37 (Ky. 2019). The matter was later removed

from abeyance, and the parties filed supplemental briefs. On April 10, 2020, the 

Board affirmed the ALJ’s decision, holding that Roberts had failed to properly 

preserve his constitutional argument at the benefits review conference as this was 

not specifically listed as a contested issue and that the Attorney General was not 

provided with the required notice prior to the entry of the ALJ’s decision pursuant 

to KRS 418.075. Even if the issue had been preserved, the Board stated it would 

have affirmed the ALJ’s decision based upon the holding in Holcim, in which the 

Supreme Court held that the 2018 version of KRS 342.730(4) had retroactive 

application. This petition for review now follows.1

On appeal, Roberts argues that the ALJ erred in finding that his PPD 

award was subject to the current version of KRS 342.730(4) by applying it 

retroactively as doing so violated the Contracts Clause of the United States and 

Kentucky Constitutions and constituted an exercise of arbitrary power. In addition, 

he argued that the ALJ erred in finding he had not preserved his arguments. Both 

1 The petition was held in abeyance to permit the Supreme Court of Kentucky to reach a final 

decision in Adams v. Excel Mining, LLC, 2020-SC-0137-WC, which was decided together with 

Dowell v. Matthews Contracting, 627 S.W.3d 890 (Ky. 2021).
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Commonwealth Dodge and the Attorney General argue that the ALJ properly 

applied the current version of KRS 342.730(4) to Roberts’ award based upon the 

relevant caselaw.

This Court’s standard of review in workers’ compensation appeals is 

well-settled in the Commonwealth. “The function of further review of the [Board] 

in the Court of Appeals is to correct the Board only where [the] Court perceives the 

Board has overlooked or misconstrued controlling statutes or precedent, or 

committed an error in assessing the evidence so flagrant as to cause gross 

injustice.” Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). 

While this petition was pending, the Supreme Court rendered two 

opinions addressing the current version of KRS 342.730(4): Cates v. Kroger, 627 

S.W.3d 864 (Ky. 2021), and Dowell v. Matthews Contracting, 627 S.W.3d 890 

(Ky. 2021). As stated in the Attorney General’s response, the Supreme Court has 

now upheld the constitutionality of the current version of this statute as well as its

retroactive application, as set forth below. 

In Cates, the Supreme Court set forth the legislative and legal history

of the amendments to KRS 342.730(4) to provide a context to its analysis:

Before we undertake our analysis, we review for 

context two of our recent holdings addressing the 

General Assembly’s efforts to establish an outer limit on 

the receipt of workers’ compensation income benefits. In 

Parker v. Webster County Coal, LLC [(Dotiki Mine), 529 

S.W.3d 759 (Ky. 2017),] a majority of this Court 
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invalidated the 1996 version of KRS 342.730(4). That 

statute read:

All income benefits payable pursuant to this 

chapter shall terminate as of the date upon 

which the employee qualifies for normal 

old-age Social Security retirement benefits 

under the United States Social Security Act, 

42 U.S.C. secs. 301 to 1397f, or two (2) 

years after the employee’s injury or last 

exposure, whichever last occurs.

The majority in Parker found the statute 

unconstitutional for two reasons: (1) the statute created 

an arbitrary classification because the benefit cut-off date 

was dependent upon when the recipient received old-age 

social security benefits and (2) the statute was special 

legislation because it favored those who would not 

receive old-age social security benefits and disfavored 

those who would receive such benefits. Importantly, 

even though Parker invalidated the 1996 version of the 

statute, it reaffirmed this Court’s prior precedent in which 

we consistently held that treating older injured workers 

differently from younger injured workers is rationally 

related to the legitimate government interests in 

preventing a duplication of benefits and saving money 

for the workers’ compensation system. We said in 

Parker,

The rational bases for treating younger and 

older workers differently is (1) it prevents 

duplication of benefits; and (2) it results in 

savings for the workers compensation 

system. Undoubtedly both of these are 

rational bases for treating those who, based 

on their age, have qualified for normal 

Social Security retirement benefits 

differently from those who, based on their 

age, have yet to do so.
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[Parker, 529 S.W.3d at 768.]

Shortly after our holding in Parker, the General 

Assembly in 2018 enacted a new version of KRS 

342.730(4) to read:

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.

This change purported to rectify the shortcomings 

of the 1996 version as identified in Parker by untethering 

the cessation of a claimant’s workers’ compensation 

income benefits from the receipt of old-age social 

security retirement benefits, a benefit that Parker

identified as not available to Kentucky’s retired teachers. 

The new statute now limits the duration of benefits by

linking cessation for all income beneficiaries to the later 

of two events (1) reaching age 70, or (2) four years after 

injury or last injurious exposure.

In Holcim v. Swinford we addressed retroactive 

application of the 2018 amendment. While not explicitly 

stated in the statute as codified, we found a clear 

legislative intent that the amendment apply retroactively 

to all claims where (1) the injury occurred after 

December 1997 and (2) has not been fully and finally 

adjudicated through the appellate process, or for which 

time to file an appeal has not lapsed, as of the effective 

date of the Act, July 14, 2018. We declined to address 
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the constitutionality of its effect, or the constitutionality 

of the amendment’s text because those issued were not 

argued until after the Court of Appeals had rendered its 

opinion. The cases at hand now present the issue 

remaining after Holcim, which is the constitutionality of 

the amendment and its retroactive application.

Cates, 627 S.W.3d at 868-70 (footnotes omitted).

The Cates Court first held that the 2018 amendment to KRS 

342.730(4) did not violate the Equal Protection Clause under either the 14th

Amendment to the United States Constitution or §§ 1, 2, and 3 of the Kentucky 

Constitution: 

[W]e find the 2018 amendment classifies recipients based 

only on age, entirely unrelated to their old-age socialsecurity eligibility. This age classification prevents a 

duplication of benefits, which we have found, to be a 

legitimate state interest and applies to all those receiving 

workers’ compensation equally. So the current version 

of KRS 342.730(4) is not violative of the Equal 

Protection Clause because the age classification is 

rationally related to a legitimate state purpose.

Cates, 627 S.W.3d at 871. The Court then held that the retroactive application of 

the 2018 amendment to KRS 342.730(4) did not create an arbitrary class of 

litigants:

We find here no arbitrary exercise of legislative 

authority in the retroactive application of the amendment. 

After Parker, the General Assembly acted swiftly to 

amend the statute to fill the statutory gap with 

constitutional norms. The legislature “may amend the 

law and make the change applicable to pending cases, 

even when the amendment is outcome determinative.” 
-8-

Because the 1996 version had been invalidated and a new 

version enacted, the General Assembly was left to decide 

if pending claims would be governed by the 1994 version 

of the statute – a statute that had not been in effect for 

over 20 years – or to allow for current claims to be 

decided under the new amendment. The legislative body 

apparently chose the latter, and that choice was its 

prerogative.

Id. at 871-72 (footnotes omitted).

In Dowell, the Supreme Court addressed whether the 2018 

amendment to KRS 342.730(4) violated the federal and state Contracts Clause.

Adams and Dowell both argue that applying the 

current version of KRS 342.730(4) to their claims 

violates the Contracts Clause of both the United States 

and Kentucky Constitution. Article 1, Section 10, Clause 

[1] of the United States Constitution reads:

No State shall enter into any Treaty, 

Alliance, or Confederation; grant Letters of 

Marque and Reprisal; coin Money; emit 

Bills of Credit; make any Thing but gold and 

silver Coin a Tender in Payment of Debts; 

pass any Bill of Attainder, ex post facto 

Law, or Law impairing the Obligation of 

Contracts, or grant any Title of Nobility.

Similarly, Section 19 of the Kentucky Constitutions 

provides, “No ex post facto law, nor any law impairing 

the obligation of contracts, shall be enacted.”

Dowell, 627 S.W.3d at 894. However, the Supreme Court did not perform a 

Contracts Clause analysis in this case “because the Workers’ Compensation Act 

(WCA) does not constitute a contract between Kentucky workers and their 
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employers or the state. Instead, the WCA is a statutory scheme that may be 

amended as the General Assembly chooses, provided it fits within our 

constitutional framework.” Id. at 894-95. 

The workers’ compensation system is controlled 

by the state and is governed by legislative enactments. It 

is not a contract on between employers and their 

employees. Changes to the relevant statutes, therefore, 

do not create a Contracts Clause issue. While changes to 

statutes may result in other constitutional issues, such as 

a violation of due process or constitute special 

legislation, a Contracts Clause issue is impossible in this 

matter because there is simply no contract or contractual 

right for the statutory amendment to impair.

Id. at 896.

The Supreme Court then addressed the retroactivity issue in the 

context of a claimant’s right to a certain duration or amount of benefits received. 

Dowell and Adams argue that applying the new 

version of KRS 342.730(4) is unconstitutional because 

they have a vested right to the benefits assigned to them 

by the ALJ and Workers’ Compensation Board. We 

have also briefly addressed this argument in a companion 

opinion, also rendered today, Cates v. Kroger. We will 

address it here to clarify that litigants like Adams and 

Dowell do not have a vested right to certain benefits. 

While they have a vested right to some benefits by 

statute, they do not have a vested right to “certain” 

benefits until their claim for benefits has been determined 

by final order.

A benefits-recipient’s right to compensation 

becomes fixed and vests on the date of the injury. The 

right to receive benefits is a substantive issue and the 

injury date is controlling under substantive law. We have 
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long held “that where a suit has been instituted under a 

statute giving a cause of action and a right to maintain 

such action, and once the action has been prosecuted to 

final judgment, and the rights of the parties fixed, such 

rights then become vested in the judgment, and thereafter 

a legislature can pass no law which impairs the validity 

of the vested right thus obtained.” So, Dowell and 

Adams have a vested, substantive right to litigate their 

benefits, a right that cannot be taken away by statutes that 

have since come into existence since filing their claim. 

But in contrast, their right to a certain duration or amount 

of benefits has not vested and will not do so until they 

receive a final decision of their claims. So, the 2018 

amendment to KRS 342.730(4) “[does] not create new or 

take away vested rights” of plaintiffs like Adams and 

Dowell, and its retroactive application is constitutional.

Because Adams’s and Dowell’s benefits have not 

been completely litigated, their potential awards must 

conform with the changes in the applicable law effective 

during the litigation process. And in Holcim we found 

that the legislature intended the law to apply to all claims 

currently pending. So the 2018 amendment applies to 

Dowell and Adams even though the only issue left to 

litigate is the effect of the 2018 amendment on the 

duration of their benefits. While we agree with Adams 

that the 2018 amendment impairs his benefits award, 

Adams had no vested right in the outcome of his claim 

before the ALJ or the Board. As we stated in Martin v. 

Warrior Coal, LLC, [617 S.W.3d 391, 397-98 (Ky. 

2021),] the legislature intended for the 2018 amendment 

of KRS 342.730(4) to apply to all pending appeals, and 

Adams’s appeal was pending when the Court of Appeals 

ruled. In fact, the case is still not fully litigated.

Likewise, Dowell’s benefits claim was decided 

after we had invalidated the 1996 amendment and the 

ALJ and the Board resurrected the 1994 version of the 

statute as applicable to Dowell’s claim. By the time 

Dowell’s appeal reached the Court of Appeals, the 2018 
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amendment had become effective, and we had 

determined the statute applied retroactively. So Dowell’s 

benefits were not final then and are not now. Because 

Dowell’s award is still being litigated, we find the 2018 

amendment to KRS 342.730([4]) controls.

As we stated in Cates v. Kroger, “we reiterate our 

holding in Holcim that the legislature intended for the 

new amendment to apply to all pending appeals with 

injury dates occurring after December 1996.” We are 

bound by the text of the statute and unless it conflicts 

with a constitutional provision, we must uphold the laws 

the legislature has enacted. Neither Adams nor Dowell 

had a vested right to certain benefits, only a right to some 

benefits that are to be determined under current law.

Dowell, 627 S.W.3d at 897-98 (footnotes omitted).

The above-cited cases constitute binding authority of the Supreme 

Court of Kentucky, which this Court must follow pursuant to Supreme Court Rule 

(SCR) 1.030(8)(a) (“The Court of Appeals is bound by and shall follow applicable 

precedents established in the opinions of the Supreme Court and its predecessor 

court.”). Because Roberts’ injury occurred after 1996 and his award of benefits is 

still being litigated, the 2018 amendment to KRS 342.730(4) controls in this case. 

Based upon our holding, we need not address the preservation issue.

For the foregoing reasons, the opinion of the Workers’ Compensation 

Board affirming the ALJ’s award is affirmed. 

ALL CONCUR.
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BRIEF FOR APPELLANT:

Wayne C. Daub

Louisville, Kentucky

BRIEF FOR APPELLEE

COMMONWEALTH DODGE:

Felicia A. Snyder

Lexington, Kentucky

BRIEF FOR APPELLEE DANIEL 

CAMERON, ATTORNEY 

GENERAL OF KENTUCKY:

Matthew F. Kuhn

Brett R. Nolan

Alexander Y. Magera

Frankfort, Kentucky