RENDERED: APRIL 8, 2022; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth of Kentucky
Court of Appeals

NO. 2020

- CA

- 0772

- WC

MICHAEL HARDIN APPELLANT

v. PETITION FOR REVIEW OF A DECISION

OF THE WORKERS ’ COMPENSATION BOARD

ACTION NO. WC

- 12

- 69227

BROWN FORMAN CORPORATION; DANIEL CAMERON , ATTORNEY GENERAL OF KENTUCKY ; HONORABLE GRANT ROARK

, ADMINISTRATIVE LAW JUDGE ; AND WORKERS ’ COMPENS A TION BOARD APPELLEES

OPINION AFFIRMING

**   **  **

BEFORE: CALDWELL, COMBS, AND L. THOMPSON, JUDGES.

COMBS, JUDGE: Appellant, Michael Hardin, appeals from the May 15, 2020

,

o pinion of the Workers’ Compensation Board which held that the Administrative- 2

-

Law Judge (the ALJ), correctly determined that KRS 1 342.730(4) effective July 14,

2018, applies to Hardin’s award of permanent total disability benefits. 2 After our

review, w e affirm.

The facts are not in dispute. The issue before us is a purely legal one.

O n appeal, Hardin contends that retroactive ap plication of the 2018 amended

version of KRS 342.730(4) to his award of permanent total disability benefits

violates the equal protection clause and the contracts clause of the Kentucky

Constitution. In relevant part, the statute provides that: “[a]ll in come 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.”

After Hardin filed his p etition for r eview in this Court, the Attorney

General filed a motion to stay the appeal on the ground that several appeals

contesting the constitutionality of KRS 342.7 3 0(4) were currently pending before

the Supreme Court. By o rder entered on July 29, 2020, this Court granted the

motion and ordered that the appeal be held in abeyance . O n September 27, 2021,

the Attorney General filed a motion to return the appeal to the active docket in

1 Kentucky Revised Statutes.

2 The Board noted that as an administrative tribunal it had no jurisdiction to rule on the constitutionality of a statute and was without authority to render a decision based upon the issue Hardin raised on appeal.- 3

-

light of the decisions rendered in Dowell v. Matthews Contracting

, 627 S.W.3 d

890 (Ky. 2021) and Cates v. Kroger , 627 S.W.3d 864 (Ky. 2021). By o rder of this

Court entered on October 29, 2021, the motion was granted.

In Holcim v. Swinford

, 581 S.W.3d 37 (Ky. 2019), our Supreme

Court previously held that the July 14, 2018

, amendment to KRS 342.730(4)

“applied retroactively to all claims where (1) the injury occurred after December

1996 and (2) had not been fully and finally adjudicated, are in the appellate

process, or f

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

of the Act .

. . ”

. Cates

, 627 S.W.3d at 868 n.4.

Cates holds as follows :
[T]he 2018 amendment classifies recipients based only on age, entirely unrelated to their old

- age social

- security 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.

Id. at 871.

Dowell holds that the 2018 amendment to KRS 342.730(4) does not

violate the c ontracts c lause of the f ederal or Kentucky c onstitutions:

[T]he benefits an employee may receive following a work

- related inj ury are not a result of a bargained

- for exchange following an offer, acceptance, and consideration, but are the result of a statutory scheme- 4

- intended to provide a form of insurance for Kentucky employees in case of injury. Because the [Workers’ Compensatio n Act] does not form a contract, there are no contractual rights that the amendment to KRS 342.730(4) could infringe; thus, the fundamental premise of a Contracts Clause analysis

-- the existence of a contract

-- i s absent, and our analysis ends.

Dowell

, 62 7 S.W.3d at 895.

Accordingly, we are compelled to affirm the May 15, 2020, o pinion of

the Workers’ Compensation Board.

ALL CONCUR.

BRIEF FOR APPELLANT:

Stephan i e N. Wolfinbarger Louisville, Kentucky BRIEF FOR APPELLEE ATTORNEY GENERAL OF KENTUCKY :

Matthew F. Kuhn Brett R. Nolan Alexander Y. Magera Frankfort, Kentucky

BRIEF FOR APPELLEE BROWN FORMAN CORPORATION:

David D. Black Louisville, Kentucky