RENDERED: JUNE 13, 2019

TO BE PUBLISHED

2018-SC-000215-WC

TECO/PERRY COUNTY COAL APPELLANT

V. ON APPEAL FROM COURT OF APPEALS

CASE NO. 2015-CA-001951-WC

WORKERS’ COMPENSATION BOARD NO. WC-15-00058

PAUL FELTNER; APPELLEES

HON. GRANT ROARK,

ADMINISTRATIVE LAW JUDGE; AND

WORKERS’ COMPENSATION BOARD

AND 2018-SC-000216-WC

MCCOY-ELKHORN COAL CO., INC. APPELLANT

V. ON APPEAL FROM COURT OF APPEALS

CASE NO. 2015-CA-000126-WC

WORKERS’ COMPENSATION BOARD NO. WC-13-01486

ROBBIE HATFIELD; HON. JANE RICE WILLIAMS, APPELLEES

ADMINISTRATIVE LAW JUDGE; AND

WORKERS’ COMPENSATION BOARD;

AND 2018-SC-000217-WC
ENTERPRISE MINING COMPANY APPELLANT

ON APPEAL FROM COURT OF APPEALS 

V. CASE NO. 2014-CA-001473-WC

WORKERS’ COMPENSATION BOARD NO. WC-13-00451

HERMAN NAPIER; HON. WILLIAM J. APPELLEES

RUDLOFF, ADMINISTRATIVE LAW JUDGE;

AND WORKERS’ COMPENSATION BOARD

OPINION OF THE COURT BY JUSTICE VANMETER

AFFIRMING IN PART AND VACATING IN PART

By statute, workers’ compensation claimants suffering hearing loss may

not receive income benefits unless their whole person impairment rating

(“WPI”)—as determined by converting their binaural (both ears) impairment

under the Guides to the Evaluation ofPermanent Impairment (“Guides”)—is at

least 8%. KRS1 342.7305. Other types of non-hearing loss traumatic injury

claimants do not have to meet this threshold impairment rating to qualify for

income benefits. The issue we must resolve in this case is whether the Court of

Appeals erred when it held that this section of KRS 342.7305 violates the equal

protection guarantees in the Fourteenth Amendment to the United States

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

review, we hold that it did so err as a rational basis exists for treating hearing

loss claimants differently from other types of traumatic injury claimants.

Accordingly, we vacate that portion of the Court of Appeals’ opinion and affirm

1 Kentucky Revised Statutes.

2
the respective Administrative Law Judge’s (“ALJ”) award of medical benefits

and exclusion of income benefits.

I. Factual and Procedural Background.

Herman Napier, Robbie Hatfield, and Paul Feltner (collectively

“Appellees”) all filed claims against their employers (collectively “Appellants”) for

workers’ compensation benefits based on occupational hearing loss. Napier

claimed occupational hearing loss resulting from long term, repetitive exposure

to loud noise in the workplace. Dr. Raleigh Jones performed the required

University Medical Evaluation (“UME”) and assigned Napier a WPI of 4%,

recommended hearing aids, and restricted Napier to only working with ear

protection. At Napier’s hearing, the ALJ granted Napier’s motion to add a

constitutional equal protection challenge and initially ruled KRS 342.7305(2)

unconstitutional. However, on rehearing, the ALJ acknowledged that he did

not have the authority to determine statutory constitutionality and revised his

Opinion and Order to exclude permanent partial disability (“PPD”) income

benefits, thus only granting medical benefits. The Workers’ Compensation

Board (“the Board”) affirmed and passed the question of constitutionality on to

the Court of Appeals.

Robbie Hatfield filed two hearing loss claims, one resulting from a piece

of hot slag, or molten waste material, falling in his ear, and one for

occupational hearing loss due to repetitive exposure to loud workplace noise.

Dr. Barbara A. Eisenmenger performed the required UME and assigned

Hatfield a 4% WPI, recommended hearing aids and ear protection, but

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cautioned against working in situations where ear protection, i.e. ear plugs,

would impede Hatfield’s ability to work safely. Hatfield identified his

constitutional challenge to KRS 342.7305(2) at a benefit review conference

(“BRC”) and the ALJ acknowledged this challenge at Hatfield’s hearing. The

ALJ awarded medical benefits to Hatfield but held that she lacked authority to

address the constitutional equal protection challenge. The Board affirmed and

held that it likewise lacked authority to address the constitutional question.

Paul Feltner filed two workers’ compensation claims, one for his back

and one for occupational hearing loss due to “daily and continuous exposure to

noise.” His claims were consolidated. Dr. Brittany Brose performed a UME

and assigned Feltner a WPI of 5%, recommended hearing aids, and further

recommended that Feltner be restricted from jobs incompatible with the use of

ear protection devices due to safety concerns. Feltner settled his non-hearing

loss claims but listed his constitutional challenge to KRS 342.7305(2) in his

BRC filings. The ALJ awarded medical benefits but excluded PPD income 

benefits because he lacked authority to adjudicate constitutional challenges.

The Board affirmed the ALJ’s decision and held that it also lacked authority to

address the constitutional question.

The Court of Appeals consolidated the three claims to address the

constitutionality of KRS 342.7305(2). Holding that Vision Mining Inc. v.

Gardner, 364 S.W.3d 455 (Ky. 2011) was dispositive, the Court of Appeals

determined that KRS 342.7305(2) violated equal protection guarantees and was

thus unconstitutional. This appeal followed.

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II. Standard of Review.

We review questions of law, including the constitutionality of a statute,

de novo. Parker v. Webster County Coal, LLC, 529 S.W.3d 759, 765 (Ky. 2017).

“In considering an attack on the constitutionality of legislation, this Court has

continually resolved any doubt in favor of constitutionality rather than

unconstitutionality.” Hallahan v. Mittlebeeler, 373 S.W.2d 726, 727 (Ky. 1963)

(citing Reynolds Metal Co. v. Martin, 269 Ky. 378, 381-82, 107 S.W.2d 251, 253

(1937)). In determining the constitutionality of a statute, “[o]ur functions are to

determine the constitutional validity and to declare the meaning of what the

legislative department has done. We have no other concern.” Johnson v.

Commonwealth ex rel. Meredith, 291 Ky. 829, 833, 165 S.W.2d 820, 823 (1942).

III. Analysis.

The sole issue in this case is whether KRS 342.7305(2) violates equal

protection. KRS 342.7305(2) states:

Income benefits payable for occupational hearing loss shall be as

provided in KRS 342.730, except income benefits shall not be

payable where the binaural hearing impairment converted to

impairment of the whole person results in impairment ofless

than eight percent (8%). No impairment percentage for tinnitus

shall be considered in determining impairment to the whole

person.

(emphasis added). There are three potential levels of review when analyzing an

equal protection claim: strict scrutiny, intermediate scrutiny, and rational

basis. See Vision Mining, Inc., 364 S.W.3d at 465-66. While strict and

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intermediate scrutiny apply when a “statute makes a classification on the basis

of a ‘suspect’ or ‘quasi-suspect’ class,” the rational basis test is used when “the

statute merely affects social or economic policy[.]” Id. at 466 (quoting D.F. v.

Codell, 127 S.W.3d 571, 575-76 (Ky. 2003)).

This Court has previously held that worker’s compensation statutes

concern matters of social and economic policy. Statutes are

presumed to be valid and those concerning social or economic

matters generally comply with federal equal protection

requirements if the classifications that they create are rationally

related to a legitimate state interest. Sections 1, 2, and 3 of the

Kentucky Constitution provide that the legislature does not have

arbitrary power and shall treat all persons equally. A statute

complies with Kentucky equal protection requirements if a

“reasonable basis” or “substantial and justifiable reason” supports

the classifications that it creates. Analysis begins with the

presumption that legislative acts are constitutional.

Cain v. Lodestar Energy, Inc., 302 S.W.3d 39, 42-43 (Ky. 2009) (internal

citations omitted).

Hearing loss is a compensable traumatic injury covered by KRS

342.0011(1). Under KRS 342.730(l)(b), the ALJ’s “finding of a permanent

impairment rating ... is a threshold issue that forms the basis of an award” for

all other non-hearing-loss traumatic injury claimants, thus entitling them to an

award for merely establishing any permanent impairment—even 1%. LKLP

CAC Inc. v. Fleming, 520 S.W.3d 382, 387 (Ky. 2017). However, the legislature

enacted KRS 342.7305 as a separate statute to govern workers’ compensation

claims for traumatic hearing loss claimants. Alcan Foil Products v. Huff, 2

S.W.3d 96, 102 n. 1 (Ky. 1999). Hearing loss claimants must have at least an

8% rating to be eligible for income benefits. KRS 342.7305(2). Therefore, no

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doubt exists that hearing-loss claimants whom the ALJ finds have less than an

8% permanent impairment rating are treated differently than all other

traumatic injury claimants. The only question remaining is whether a rational

basis exists for the 8% threshold that hearing loss claimants must meet to

obtain PPD income benefits.2

A rational basis may be any “reasonable basis” or “substantial and

justifiable reason.” Cain, 302 S.W.3d at 43. “A person challenging a law upon

equal protection grounds under the rational basis test has a very difficult task

because a law must be upheld if there is any reasonably conceivable state of

facts that could provide a rational basis for the classification.” Commonwealth

ex rel. Stumbo v. Crutchfield, 157 S.W.3d 621, 624 (Ky. 2005) (citing United

States R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 178-79, 101 S. Ct. 453, 461, 66

L.Ed.2d 368 (1980)). Furthermore, “the General Assembly need not articulate

2 The Court of Appeals held that Vision Mining is dispositive ofthe rational basis

claim. 364 S.W.3d 455. In Vision Mining, this Court considered whether the

legislature could constitutionally apply heightened evidentiary standards—the

“consensus panel” procedure and “clear and convincing” rebuttal standard—in initial

claims for coal workers’ pneumoconiosis (“CWP”) when those more stringent

evidentiary standards of proof were not placed on others filing initial claims from other

sources of pneumoconiosis. Id. at 457. This Court held that since no rational basis

existed for applying varying evidentiary standards in claims for the same disease—

pneumoconiosis—differently, the imposition of a higher standard of proof on CWP

claims was arbitrary and therefore unconstitutional. Id. at 474. Contrary to the Court

ofAppeals holding, Vision Mining does not stand for the proposition that all

distinctions between various types of injury claims are unconstitutional. Further, in

holding Vision Mining dispositive, and merely reanalyzing the same legislative reasons

given for the distinctions by Vision Mining—cost savings, efficiency, and honesty of

evaluating physicians—the Court ofAppeals misinterprets what a “rational basis” is.

No case can be completely dispositive of another when conducting a rational basis

analysis unless it involves the same statute, same facts and same arguments for what

“rational basis” exists to uphold the statute. As the statute at issue in Vision Mining,

KRS 342.316, and KRS 342.7305 involve different areas of workers’ compensation,

Vision Mining is not dispositive of this appeal.

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its reasons for enacting the statute, and this is particularly true where the

legislature must necessarily engage in a process of line drawing.” Id. (citing

Fritz, 449 U.S. at 179, 101 S. Ct. at 461). Accordingly, “[o]ur General

Assembly, under the Equal Protection Clause, has great latitude to enact

legislation that may appear to affect similarly situated people differently.” Id.

(citation omitted).

Appellant mining companies argue that Section 11.2a of the Guides

contains the rational basis for upholding the 8% impairment threshold for PPD

income benefits. Titled, “Criteria for Rating Impairment Due to Hearing Loss,”

Section 11.2a concerns the criteria for rating impairment due to

hearing loss .... It [] indicates that no correction should be made

for presbycusis, which Stedman’s Medical Dictionary 1135 (5th

Unabridged Lawyers’ Edition 1982) defines as a loss of the ability

to perceive or discriminate sounds that occurs with age but varies

in pattern and age of onset. The Guides explain that impairment

is rated without regard to its cause, that a correction for age

would underestimate the true magnitude of the impairment, and

that allocating an impairment to various causes is a separate

matter from determining its magnitude.

AK Steel Corp v. Johnston, 153 S.W.3d 837, 840 (Ky. 2005) (internal citations

omitted) (emphasis added). This Court in Johnston, albeit while not analyzing

equal protection, recognized “that the 8% threshold found in KRS 342.7305(2)

represents a substantial binaural hearing impairment.” Id. at 841. Adding to

this argument, Feltner’s UME evaluator, Dr. Brose, testified that the “only time

I subtract anything out is if I had what would be considered a baseline hearing

test, essentially, that showed there was an impairment there previously.”

Appellants argue that because the Guides do not provide a correction for age8
related hearing loss when calculating an impairment rating, and no subtraction

of non-occupational hearing loss occurs during a UME, a rational basis exists

for the 8% threshold as a means to ensure that liability for normal, nonoccupational hearing loss does not fall upon employers. Further, Appellants

argue that without the 8% threshold, employees would become less employable

in any industry with a risk of noise exposure because as employees age their

increased risk for age-related hearing loss would impose liability on a company {

when an employee has merely a 1% impairment rating, thus creating a large

incentive to not hire older prospective employees.

Appellees, and the Court of Appeals, posit that KRS 342.0011(1) and

KRS 342.730(l)(b)-(c) would exclude any pre-existing active age-related hearing

loss conditions if KRS 342.7305(2) was declared unconstitutional. While KRS

342.0011(1) excludes “the effects of the natural aging process,” and KRS

342.730(l)(b)-(c) limit the impairment rating to one “caused by the injury or

occupational disease,” KRS 342.7305(1) sets an 8% threshold. The Guides

instruct the physician to not subtract for age-related hearing loss when

assigning a rating. Without the use of a threshold number, the Guides contain

no reference as to how KRS 342.0011(1) or KRS 342.730(l)(b)-(c) would exclude

pre-existing and age-related hearing loss. Based on Dr. Brose’s testimony, we

can only speculate that without a threshold number, every potential employee

in the Commonwealth would have to undergo baseline hearing tests at various 

ages throughout their life to determine the true extent of their age-related vs.

occupational hearing loss. The more logical conclusion is that the 8%

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threshold recognizes the differences in assigning an impairment rating to

hearing-loss claimants under the Guides, as compared to assigning a rating to

other traumatic injuries.

Some states, including South Dakota, use deductions based on age to set

off potential age-related hearing loss from claims.3 KRS 342.7305 instead 

follows the Guides’ approach for not subtracting age-related hearing loss from

an impairment rating and thus sets a threshold of 8%. Although this may not

be a perfect solution, it adheres to the principle that workers’ compensation

claimants receive PPD income benefits when their injury is work-related. An

8% threshold all but guarantees that hearing-loss claimants who meet the

threshold have work-related, not just age-related, hearing loss. As the United

States Supreme Court opined, “[t]he ‘task of classifying persons for . . . benefits

. . . inevitably requires that some persons who have an almost equally strong

claim to favored treatment be placed on different sides of the line,’ Mathews v.

Diaz, 426 U.S. 67, 83-84, 96 S. Ct. 1883, 1893, 48 L. Ed. 2d 478 (1976), and

the fact the line might have been drawn differently at some points is a matter 

for legislative, rather than judicial, consideration.” Fritz, 449 U.S. at 179, 101

S. Ct. at 461.

IV. Conclusion.

3 See SDCL § 62-9-5 (“Before determining the percentage of hearing

impairment, in order to allow for the average hearing loss from nonoccupational

causes found in the population at any given age, there shall be deducted from the total

average decibel loss, one-half decibel for each year of the employee's age over forty-five

years at the time of last exposure to occupational noise. Other appropriate deductions

established by competent specialist opinion which exceed the foregoing allowance for

presbycusis shall also be deducted[]”).

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For the foregoing reasons and given our deference to the legislature in

matters of social and economic policy, we hold that a rational basis exists for

the 8% impairment threshold for PPD income benefits in KRS 342.7305(2).

Accordingly, we vacate the Court of Appeals opinion holding that KRS

342.7305(2) is unconstitutional and affirm the respective ALJ’s determinations

that the Appellees do not qualify for PPD income benefits based on their

impairment ratings.

All sitting. Minton, C.J.; Buckingham, Hughes and VanMeter, JJ.,

concur. Lambert, J., dissents by separate opinion in which Keller and Wright,

JJ., join.

LAMBERT, J., DISSENTING: Respectfully, I dissent. I disagree with the

majority’s conclusion that a rational basis exists for treating worker’s

compensation hearing loss claimants with less than 8% binaural hearing loss

differently from every other claimant. I would affirm the Court of Appeals.

Hearing loss due to hazardous levels of workplace noise is without

question a work-related injury covered by our worker’s compensation statutes.4

Therefore, every worker who suffers a work-related hearing loss has the right to

be treated the same way as every other work-related injury claimant. U.S.

4 “When audiograms and other testing reveal a pattern of hearing loss

compatible with that caused by hazardous noise exposure and the employee

demonstrates repetitive exposure to hazardous noise in the workplace, there

shall be a rebuttable presumption that the hearing impairment is an injury

covered by this chapter[.]” KRS 342.7305(4) (emphasis added).

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Const, amend. XIV; Ky. Const. §§ 1-2. That is, unless a rational basis exists

for disparate treatment.

As the majority correctly states, under our worker’s compensation

statutes hearing loss claimants with less than 8% binaural hearing loss are

treated unequally in comparison to every other injury claimant. Unless they

prove they have a combined hearing loss of 8% in both ears, they are precluded

by KRS 342.7305 from receiving any compensation whatsoever.

The majority concludes that the rational basis for this unequal treatment

is to prevent employers from having to compensate workers for pre-existing

hearing loss due solely to the effects of aging. I respectfully assert that this

conclusion is flawed in two ways.

First, under KRS 342.011(1) the basic definition of injury for the purpose

of a worker’s compensation claim specifically excludes age-related impairment:

“Injury” means any work-related traumatic event or

series of traumatic events, including cumulative

trauma, arising out of and in the course of employment

which is the proximate cause producing a harmful

change in the human organism evidenced by objective

medical findings. “Injury” does not include the

effects of the natural aging process, and does not

include any communicable disease unless the risk of

contracting the disease is increased by the nature ofthe

employment.

(emphasis added). So, the age-related hearing loss issue has already been

addressed across the worker’s compensation act as a whole. And of course,

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when a claimant seeks compensation for work-related hearing loss, there is

nothing in our worker’s compensation statutes that would prevent an employer

from arguing that some or all of the claimant’s hearing loss is due to age:

[A]n underlying pre-existing condition must be

symptomatic and impairment ratable pursuant to the

AMA Guidelines immediately prior to the occurrence of

the work-related injury. Moreover, the burden of

proving the existence of a pre-existing condition

falls upon the employer.

Finley v. DBM Technologies, 217 S.W.3d 261, 265 (Ky. App. 2007) (emphasis

added). I therefore fail to see how the financial burden on employers would be

greater in comparison to any other work-related injury claim if KRS 342.7305

was abolished. As with any other injury claim, an employer could assert that a

percentage or the totality of a claimant’s hearing loss is due to age and refuse

to compensate for the age-related loss. If they are proven correct by a medical

evaluation, then they would not be required to compensate for said age-related

hearing loss. The same process would apply for any non-occupational hearing

loss. This utterly negates the need for the current 8% threshold showing. And

if the threshold is not needed, there is no rational basis for it.

The other flaw in the majority’s reasoning is that it assumes that every

claimant will have some percentage of hearing loss due solely to aging and

provides no exception for claimants whose hearing loss is entirely due to his or

her occupational environment. The claims of Mr. Feltner and Mr. Hatfield in

this case perfectly illustrate this blind spot.

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In Mr. Feltner’s case, the physician that conducted the university study

mandated by KRS 342.3155 found that his 5% impairment was caused by

being exposed to excessive noise in the workplace for thirty-four years. She

found no medical evidence of hearing-loss due to age. In addition, the

physician testified that there is no rational or significant difference between a

person with 5% impairment and a person with 8% impairment.

Even more illustrative is Mr. Hatfield’s story. His 4% impairment was

caused by a piece of hot slag falling into his ear and perforating his eardrum.

Clearly, the resulting hearing loss had nothing to do with the effects of the

aging process. But, because that piece of slag did not hit his eye, leg, hand,

etc. he was denied any amount of compensation. This is an injustice by which

I cannot abide.

Finally, Vision Mining, Inc. v. Gardner, 364 S.W.3d 455 (Ky. 2011) dealt

with the constitutionality of a worker’s compensation statute. The statute at

issue required that coal workers go through a process of proving they had

black lung that no other occupational black lung claimants were required to go

through. Id. at 458-461. This Court ultimately held:

Pneumoconiosis caused by exposure to coal dust is the

same disease as pneumoconiosis caused by exposure to

dust particles in other industries, yet coal workers face

different, higher standard-of-proof requirements than

those other workers. This is an arbitrary distinction

between similarly situated individuals, and thus it

5 KRS 242.315(1) directs in pertinent part: “For workers who have had

injuries or occupational hearing loss, the commissioner shall contract with the

University of Kentucky and the University of Louisville medical schools to

evaluate workers.”

14
violates the equal protection guarantees of the Federal

and State Constitutions.

Id. at 474.

The Court of Appeals in this case held Vision Mining to be dispositive.

The majority believes it has no application. While I agree the case is not

perfectly on point, I do think there is a sufficient parallel to warrant discussion.

Vision Mining essentially held that black lung is black lung is black lung,

regardless of its source. Here, the Constitutions of our nation and this

Commonwealth require us to find that a work injury is a work injury is a work

injury, regardless of whether it occurs in a claimant’s ears, eyes, tendons,

bones, or appendages. Because, as discussed above, work-related injury

claimants are similarly situated individuals and no rational basis exists for

treating those with less than 8% hearing loss unequally.

Finding no rational basis for the unequal treatment of work-related

hearing loss claimants with less than 8% binaural hearing impairment, I

respectfully dissent. The Court of Appeal’s decision finding KRS 342.7305 to

be violative of equal protection6 should be affirmed.

Keller and Wright, JJ., join.

6 U.S. Const, amend. XIV; Ky. Const. §§ 1-2.

15
COUNSEL FOR APPELLANT ENTERPRISE MINING COMPANY:

Hugh Brettelle Stonecipher

Fogle Keller Walker, PLLC

COUNSEL FOR APPELLANT TECO/PERRY COUNTY COAL:

Sarah Kathryn McGuire

Baird & Baird, P.S.C.

COUNSEL FOR APPELLANT MCCOY ELKHORN COAL CO., INC.:

Morgan Fitzhugh

Hassman & Fitzhugh, PLLC

COUNSEL FOR WORKERS’ COMPENSATION BOARD:

Michael W. Alvey

COUNSEL FOR APPELLEE HERMAN NAPIER:

McKinnley Morgan

Morgan Collins Yeast & Salyer

COUNSEL FOR APPELLEE PAUL FELTNER:

Timothy Jay Wilson

Wilson & McQueen

COUNSEL FOR APPELLEE ROBBIE HATFIELD:

Charles P. Wheeler, Jr.

Kirk Law Firm, PLLC

COUNSEL FOR APPELLEE HONORABLE GRANT STEWART ROARK:

Not Represented by Counsel

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COUNSEL FOR APPELLEE HONORABLE JANE RICE WILLIAMS:

Not Represented by Counsel

COUNSEL FOR APPELLEE HONORABLE WILLIAM J. RUDLOFF:

Not Represented by Counsel

17
Supri'tni' (Euurl of jKimfurky

2018-SC-000215-WC

TECO/PERRY COUNTY COAL APPELLANT

ON APPEAL FROM COURT OF APPEALS

V. CASE NO. 2015-CA-001951 -WC

WORKERS’COMPENSATION BOARD NO. WC-15-00058

PAUL FELTNER; HON. GRANT ROARK,

ADMINISTRATIVE LAW JUDGE; AND

WORKERS’ COMPENSATION BOARD

APPELLEES

AND

2018-SC-000216-WC

MCCOY ELKHORN COAL CO., INC. APPELLANT

ON APPEAL FROM COURT OF APPEALS

V. CASE NO. 2015-CA-000126-WC

WORKERS’COMPENSATION BOARD NO. WC-13-01486

ROBBIE HATFIELD; HON. JANE RICE

WILLIAMS, ADMINISTRATIVE LAW JUDGE;

AND WORKERS’ COMPENSATION BOARD

APPELLEES

AND

2018-SC-000217-WC

ENTERPRISE MINING COMPANY APPELLANT

V.

ON APPEAL FROM COURT OF APPEALS

CASE NO. 2015-CA-001473-WC

WORKERS’ COMPENSATION BOARD NO. WC-13-00451
HERMAN NAPIER; HON. WILLIAM J.

RUDLOFF, ADMINISTRATIVE LAW JUDGE;

AND WORKERS’ COMPENSATION BOARD

APPELLEES

ORDER DENYING PETITIONS FOR REHEARING

The Petitions for Rehearing, filed by the Appellees, of the Opinion of the

Court, rendered June 13, 2019, are DENIED.

All sitting. All concur.

ENTERED: September 26, 2019.

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