RENDERED: APRIL 2, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-1514-WC

RICKEY JACKSON APPELLANT

PETITION FOR REVIEW OF A DECISION

v. OF THE WORKERS’ COMPENSATION BOARD

ACTION NO. WC-19-95750

PHOENIX TRANSPORTATION, INC.;

HONORABLE W. GREG HARVEY, ADMINISTRATIVE

LAW JUDGE; and WORKERS’ COMPENSATION

BOARD APPELLEES

OPINION

AFFIRMING

**   **  **

BEFORE: GOODWINE, KRAMER, AND MAZE, JUDGES.

KRAMER, JUDGE: Rickey Jackson appeals from a decision of the Workers’ 

Compensation Board (“Board”) affirming an order of an Administrative Law 

Judge (“ALJ”) rendered August 24, 2020. The ALJ determined Jackson is 
-2-

permanently disabled due to a January 23, 2019 injury he sustained during his 

employment with appellee Phoenix Transportation, Inc.; but, that his disability 

benefits were subject to and thus limited by the latest version of KRS1 342.730(4). 

Jackson’s appeal before this Court only concerns the constitutionality of KRS 

342.730(4) and, specifically, whether that provision improperly discriminates 

based upon age and thus violates the 14th Amendment of the United States 

Constitution and Sections 1, 2, and 3 of the Kentucky Constitution. Upon review, 

we affirm.2

We are cognizant of the strong presumption of constitutionality 

afforded to legislative acts. Keith v. Hopple Plastics, 178 S.W.3d 463, 468 (Ky. 

2005), overruled on other grounds by Parker v. Webster County Coal, LLC (Dotiki 

Mine), 529 S.W.3d 759 (Ky. 2017). When a statutory provision results in disparate 

treatment, we must consider the 14th Amendment of the United States Constitution 

 

1 Kentucky Revised Statute.

2 Our analysis here largely duplicates our prior analysis of exactly this same question, as set forth 

in Mullins v. Publishers Printing Co., No. 2018-CA-000644-WC, 2020 WL 3605844 at *3-4 

(Ky. App. Jun. 26, 2020). We are cognizant of Kentucky Rule of Civil Procedure (CR)

76.28(4)(c). However, the reasoning of that opinion soundly and persuasively applies the law; 

furthermore, over the course of several other unpublished decisions, this Court has repeatedly 

upheld the constitutionality of this latest version of KRS 342.730(4), particularly with respect to 

whether it violates principles of equal protection based upon age. See, e.g., Flynn v. Buyers

Paradise Furniture, Inc., No. 2020-CA-000201-WC, 2020 WL 5083424 (Ky. App. Aug. 28, 

2020); Darnell v. Dairy, No. 2020-CA-000451-WC, 2020 WL 4507352 (Ky. App. Jul. 10, 

2020); Massey v. Paccar, No. 2020-CA-000440-WC, 2020 WL 3401145 (Ky. App. Jun. 19, 

2020); Donathan v. Town and Country Food Mart, No. 2018-CA-001371-WC, 2019 WL 

6998653 (Ky. App. Dec. 20, 2019). Because a contrary ruling from the Kentucky Supreme 

Court has not been forthcoming, we decline to reverse our position here.
-3-

and Sections 1, 2, and 3 of the Kentucky Constitution. The goal of these 

constitutional provisions “is to keep governmental decision makers from treating 

differently persons who are in all relevant respects alike while recognizing that 

nearly all legislation differentiates in some manner between different classes of 

persons.” Parker, 529 S.W.3d at 767 (internal quotation marks and brackets 

omitted) (quoting Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 465 (Ky. 

2011)).

In determining the constitutionality of a statute, courts apply three 

different scrutiny levels – strict, intermediate, and rational basis. Id. The scrutiny 

level applied depends on the classifications made in the statute and the interests 

affected. Id. Strict or intermediate scrutiny applies if a statute makes a 

classification because of a suspect or quasi-suspect class. Id. If the statute merely 

affects social or economic policy, it is subject to the rational basis test. Id.

“Workers’ compensation statutes concern matters of social and economic policy. 

As a result, such a statute is not subject to strict or [intermediate] scrutiny and 

therefore must be upheld if a ‘rational basis’ or ‘substantial and justifiable reason’ 

supports the classifications that it creates.” Id. (internal quotation marks omitted). 

The Court will uphold a statute if it passes the rational basis test, which requires a 

“rational basis” or “substantial and justifiable reason” supporting the classifications 

created. “Proving the absence of a rational basis or of a substantial and justifiable 
-4-

reason for a statutory provision is a steep burden; however, it is not an 

insurmountable one.” Id. (citation omitted). Jackson argues that KRS 342.730(4) 

is unconstitutional because of a discrimination between older and younger injured 

workers.

The Supreme Court made it clear that Parker addresses “the equal 

protection problem with KRS 342.730(4) . . . that . . . treats injured older workers 

who qualify for normal old-age Social Security retirement benefits differently than 

it treats injured older workers who do not qualify.” Id. at 768. Before saying so, 

however, the Court said the parties had argued the wrong question. Their focus 

was “on the perceived discrimination between injured older workers and injured 

younger workers.” Id. at 767. The Court then held:

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.

Id. at 767-68. Although this is dicta because that specific issue was not before the 

Court in Parker, it is consistent with this Court’s analysis of the issue which now is 

squarely before it.

The newly enacted KRS 342.730(4) states “all income benefits . . . 

shall terminate as of the date upon which the employee reaches age seventy (70) or 
-5-

four (4) years after the employee’s injury or last exposure, whichever last occurs.” 

Jackson argues that the new version continues to result in disparate treatment and 

asserts that the statute’s new version neither saves money nor prevents duplication 

of benefits. We cannot agree.

“In considering an equal protection challenge, a court does not engage 

in accounting of debits and credits; rather the court must examine whether 

similarly situated individuals have been treated differently . . . and, if so, whether 

or not such treatment is rationally related to a legitimate state interest.” Parker, 

529 S.W.3d at 769 (quoting Vision Mining, 364 S.W.3d at 474 (internal quotation 

marks omitted; original capitalization restored)).

Applying the rational basis test, we conclude that this version of the 

statute is constitutional. The legislature enacted this version in response to Parker, 

and we are cognizant of the strong presumption of constitutionality afforded to 

legislative acts. Keith, 178 S.W.3d at 468. Accordingly, we hold the statute, as 

enacted, does not treat similarly situated persons differently. The statute allows for 

the benefits to terminate upon reaching the age of 70, or four years after the 

employee’s injury, whichever occurs last. It cannot be disputed that the provision 

rationally relates to a cost savings for the workers’ compensation system. It places 

a limit on the amount of benefits every person is awarded, not just a select group of 

individuals. Here, to the extent there is disparate treatment between younger and 
-6-

older workers, that disparate treatment is rationally related to the cost savings 

provision.

Considering the foregoing, we AFFIRM.

ALL CONCUR.

BRIEF FOR APPELLANT:

Danny E. Darnall

Elizabethtown, Kentucky

BRIEF FOR APPELLEES:

No brief filed.