HERMAN NAPIER APPELLANT v. ENTERPRISE MINING COMPANY HON WILLIAM RUDLOFF ADMINISTRATIVE LAW JUDGE AND WORKERS COMPENSATION BOARD APPELLEES

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Court of Appeals of Kentucky.

HERMAN NAPIER, APPELLANT v. ENTERPRISE MINING COMPANY, HON. WILLIAM J. RUDLOFF, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD, APPELLEES

ROBBIE HATFIELD, APPELLANT v. MCCOY-ELKHORN COAL CO., INC.; HON. JANE RICE WILLIAMS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD, APPELLEES

PAUL FELTNER, APPELLANT v. TECO/PERRY CO.COAL; HON. GRANT ROARK, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD, APPELLEES

NO. 2014-CA-001473-WC, NO. 2015-CA-000126-WC, NO. 2015- CA-001951-WC

Decided: March 23, 2018

BEFORE: KRAMER, CHIEF JUDGE; CLAYTON AND NICKELL, JUDGES. BRIEF FOR APPELLANT, HERMAN NAPIER: McKinnley Morgan, London, Kentucky BRIEF FOR APPELLANT, ROBBIE HATFIELD: C. Phillip Wheeler, Jr., Pikeville, Kentucky BRIEF FOR APPELLANT, PAUL FELTNER: Timothy J. Wilson, Lexington, Kentucky BRIEF FOR APPELLEE, ENTERPRISE MINING COMPANY: H. Brett Stonecipher, Aziza H. Ashy, Lexington, Kentucky BRIEF FOR APPELLEE, MCCOY ELKHORN COAL COMPANY: Timothy C. Feld, Lexington, Kentucky BRIEF FOR APPELLEE, TECO/PERRY COUNTY COAL: Sarah K. McGuire, Pikeville, Kentucky

OPINION VACATING AND REMANDING

These three consolidated appeals arise from similar facts and procedural histories. They present a common equal protection constitutional challenge to KRS 1 342.7305(2). The statute authorizes compensation for occupational hearing loss as provided in KRS 342.730, “except income benefits shall not be payable where the binaural 2 hearing impairment converted to impairment of the whole person results in impairment of less than eight percent (8%)” pursuant to the AMA Guides.3

In the interest of judicial economy, we have consolidated the three cases for review and resolution in a single Opinion. Following careful review of the records, the briefs and the law, we hold KRS 342.7305(2) violates equal protection guarantees established in the Fourteenth Amendment to the United States Constitution and Sections 1, 2, and 3 of the Kentucky Constitution. In particular, we hold the Supreme Court of Kentucky's decision in Vision Mining, Inc. v. Gardner, 364 S.W.3d 455 (Ky. 2011), is dispositive. Therefore, we vacate and remand each case for further proceedings and entry of orders consistent with this Opinion.

I. FACTUAL AND PROCEDURAL HISTORY

A. THE NAPIER CLAIM

Herman Napier (Napier) filed an Application for Resolution of Hearing Loss Claim (Form 103), alleging onset of occupational hearing loss due to repetitive exposure to loud noise in the workplace.4 His last employer, Enterprise Mining Company (Enterprise), denied the claim.

In his deposition, Napier testified he has a high school education, with no specialized training or military experience, and has labored as an underground miner since 1988, performing various mining jobs. He was most recently employed at Enterprise, where he last worked on February 4, 2012.

At the hearing, Napier testified he had worked around noisy machinery and heavy equipment forty to sixty hours per week throughout his twenty-four year career, but had always worn mandated ear protection. He had also worn ear protection when hunting or riding a motorcycle. Due to worsening hearing difficulty, he sought testing at a Beltone Hearing Care Center, learning for the first time he had binaural hearing loss and required hearing aids. Napier emphasized the necessity of good hearing to the individual miner and coworkers when engaging in subterranean mining operations. He explained a miner “could get covered up” if unable to hear subterranean “cracking,” and would pose a risk to himself or others if unable to hear instructions or warnings over the din of underground equipment.

Dr. Raleigh Jones performed a University Medical Evaluation (UME), noting Napier reported worsening hearing loss dating back four to five years. Medical findings were compatible with hearing loss associated with extended workplace exposure to hazardous noise. Dr. Jones diagnosed sloping binaural high frequency sensorineural hearing loss, opining it was causally related to repetitive exposure to hazardous noise over an extended period of employment. He assigned a 4% impairment rating, recommended binaural hearing aid amplification, and restricted Napier to working with ear protection.

Due to Dr. Jones' assignment of a 4% impairment rating, the ALJ sustained Napier's motion at the hearing to add a constitutional equal protection challenge to KRS 342.7305(2) as a contested issue. The Attorney General of Kentucky received notice of the constitutional challenge pursuant to KRS 418.075.

In the Opinion and Order, the ALJ found Napier had sustained a work-related, noise-induced hearing loss due to many years of working as an underground coal miner. Declaring KRS 342.7305(2) unconstitutional, the ALJ awarded permanent partial disability (PPD) income benefits under KRS 342.730 based on Napier's 4% impairment rating, saying:

[b]ased upon ․ the holding of the Kentucky Supreme Court in the Vision Mining case, I make the determination KRS 342.7305(2) is unconstitutional, in that it requires plaintiffs, such as Mr. Napier, to meet a certain impairment rating threshold substantially different than the requirement in other types of injury claims and violates Mr. Napier's constitutional guarantee of due process of law, and further that the legislature's requirement of the 8% threshold has no rational basis in fact and that said requirement is discriminatory, since Mr. Napier is treated differently than injured workers who sustain a single traumatic injury or other types of cumulative traumas. The bottom line is that Mr. Napier's constitutional guarantee of due process is being violated, and that said statute is unconstitutional.

Enterprise petitioned for reconsideration, asserting the ALJ erred in awarding PPD income benefits in contradiction of KRS 342.7305(2) because an ALJ lacks authority to determine statutory constitutionality. Upon review, the ALJ agreed and issued a revised Opinion and Order excluding any PPD income benefits.

Napier sought review from the Workers' Compensation Board (Board). Citing Blue Diamond Coal Co. v. Cornett, 300 Ky. 647, 189 S.W.2d 963 (1945), the Board held neither it nor an ALJ was authorized to determine statutory constitutionality and affirmed the amended Opinion and Award. Napier appealed.

B. THE HATFIELD CLAIM

Robbie Hatfield (Hatfield) filed a Form 101, alleging a July 2, 2012, work-related ear injury at McCoy-Elkhorn Coal Company, Inc. (McCoy-Elkhorn), when a piece of hot slag, or molten waste material, landed in his left ear canal while he was welding, burning and perforating his left eardrum. He also filed a Form 103, alleging occupational hearing loss due to long-term exposure to loud workplace noise, with the last exposure occurring at McCoy-Elkhorn. McCoy-Elkhorn denied both claims. The ALJ consolidated the claims.5

In his deposition, Hatfield testified he was a high school graduate, had completed one year of vocational training, and was a certified welder. He had been employed since 1992 in the mining industry as an above-ground maintenance and utility worker, which required operation of welders, torches, other tools and equipment. Following his work-related ear injury, he underwent two corrective ear surgeries and several courses of cauterization treatments with no noticeable improvement. He continued to have difficulty listening to television programs, hearing telephone discussions, and distinguishing conversation around noise and crowds of people. He had missed no work due to his ear injury, and had continued working at McCoy-Elkhorn until September 2013, when he was laid off.

At the hearing, Hatfield testified he had suffered ongoing intermittent pain and constant humming in his left ear in addition to the hearing loss. About five months after being laid off by McCoy-Elkhorn, he had found work in a similar position at another mine. Work restrictions included use of ear protection, including ear plugs, and avoiding any foreign substances entering his ear canal.

Dr. William Parell, a board-certified otolaryngologist, examined Hatfield at the request of McCoy-Elkhorn. Medical history and records review revealed a work-related significant left tympanic membrane perforation, an audiogram evidencing conductive hearing loss, an unsuccessful tympanoplasty surgery, development and resolution of post-operative Bell's palsy, and a second audiogram evidencing “mild to profound left sensorineural hearing loss” with a conductive component. Dr. Parell recommended the tympanoplasty surgery be repeated to repair the left eardrum and eliminate any conductive component of the hearing loss. Even if successful, however, he recommended hearing aids for post-operative amplification.

Dr. Barbara A. Eisenmenger, a clinical audiologist, performed a UME. Complaints included constant tinnitus; sporadic episodes of sharp ear pain; dizziness and loss of balance when rising from a seated position; difficulty understanding others, especially when background noise was present; and, difficulty hearing telephone conversations and television programs. She diagnosed a tympanic membrane perforation in the left ear resulting in moderate-to-profound mixed hearing loss, poor word recognition greater than would be expected for an individual of Hatfield's age, and decreased communication skills. She opined the work-related traumatic injury was the primary cause of Hatfield's hearing loss and assigned a 4% impairment rating. She recommended use of ear protection when exposed to loud noise, but cautioned against any hazardous work activities impeded by utilization of such devices. She doubted the condition was amenable to further medical or surgical intervention, but recommended hearing aids and other assistive listening devices.

Dr. Thomas Huhn, board-certified in emergency medicine, performed an independent medical examination (IME) at the request of McCoy-Elkhorn. Complaints included “infrequent and not very intense” left ear pain, constant buzzing, decreased hearing with background noises, inability to discriminate intended noises from background noises, and occasional balance issues. Following medical records review and examination, he diagnosed “a minor direct trauma to the left ear,” or “thermal injury,” which perforated the tympanic membrane, resulting in left-sided hearing loss. Maximum medical improvement (MMI) had been reached six weeks after the second ear surgery, no further corrective ear surgery was indicated, and over-the-counter anti-inflammatory medications were recommended for any intermittent ear pain. He opined the condition was caused by the reported work-related traumatic event, but assigned no impairment rating for the tympanic membrane perforation itself. He deferred to Dr. Eisenmenger for assessment of impairment due to actual hearing loss.

Hatfield's constitutional equal protection challenge to KRS 342.7305(2) was listed by the ALJ as a contested issue at a BRC held prior to the hearing. The Attorney General of Kentucky was provided notice of the constitutional challenge pursuant to KRS 418.075.

In the Opinion and Order, the ALJ awarded Hatfield medical benefits under KRS 342.020(1) for the cure and relief of his occupational hearing loss, but denied PPD income benefits under KRS 342.7305(2) because he had failed to prove an impairment rating of 8% or greater. Citing Cornett, the ALJ held she lacked authority to address Hatfield's constitutional equal protection challenge. She denied Hatfield's subsequent petition for reconsideration.

On appeal, the Board affirmed the ALJ's conclusion that Hatfield was barred by KRS 342.7305(2) from an award of PPD income benefits. Though recognizing Hatfield's constitutional challenge, the Board held neither it nor the ALJ, as administrative tribunals, possessed authority to determine the constitutionality of a legislative statute. Hatfield appealed.

C. THE FELTNER CLAIM

Paul Feltner (Feltner) filed both a Form 103, alleging the onset of an occupational hearing loss due to “daily and continuous exposure to noise,” and a Form 101, alleging work-related upper back, neck, and bilateral shoulder injuries arising when he tried to untangle a knot from a miner cable. TECO/Perry Co. Coal (TECO) denied both claims, which were thereafter consolidated by the ALJ.

In his deposition, Feltner testified he is a high school graduate with no vocational or specialized training; had worked thirty-four years in the coal mining industry, most recently employed by TECO; had worked primarily as an underground bolt machine operator; and, had been constantly exposed to loud noise and the “roaring” of equipment, but had routinely worn ear protection. He denied any prior ear infections, injuries, or need for hearing aids. He had drawn temporary total disability (TTD) income benefits due to work-related back, neck, and shoulder injuries before returning to light work duties, but ultimately retired due to the severity of his permanent restrictions.

A UME was performed by Dr. Brittney Brose, a clinical audiologist. She recorded a medical history of long-term, repetitive occupational hazardous noise exposure with progressive binaural hearing loss. Ear protection had been worn, but hearing loss had become increasingly noticeable over the most recent seven to eight years. Though Feltner self-described mild to moderate hearing loss, objective auditory testing revealed severe hearing loss in his right ear, with milder findings sloping to a profound hearing loss in his left ear. Dr. Brose testified this degree of hearing loss was greater than normally expected in a 53-year-old individual, and was consistent with long-term noise exposure. Testing also revealed a significant perceived hearing handicap, with diminished communication abilities.

Based on medical history and examination, Dr. Brose opined Feltner's hearing loss was caused by long-term repetitive exposure to occupational hazardous noise, his condition was not amenable to further medical treatment or surgery, he required use of prescribed hearing aids and other assistive listening devices, and he qualified for a 5% impairment rating. She explained his serious to profound binaural hearing loss means he can hear speech but cannot understand conversations with clarity due to significant loss in perceiving high pitches, making it difficult to understand telephone, radio, and television communications. She emphasized the advisability of restricting Feltner from work environments exposing him to further occupational hazardous noise, explaining no ear protection device—not even custom ear plugs—would completely protect him from further traumatic ear injury and hearing loss. Even if using workplace ear protection, she recommended he be restricted from jobs incompatible with use of such sound-muffling devices due to safety concerns.

In addressing Feltner's minimal hearing loss impairment rating, Dr. Brose testified his treatment, limitations, and occupational restrictions would have been the same regardless of whether he had qualified for a 5% or an 8% impairment rating. She opined his impairment rating inadequately evinced his substantial functional loss and occupational restrictions, which are likely to limit or preclude wide-ranging work activities and employment opportunities. Specifically, she noted hearing loss significantly limits or precludes working in underground and surface mining operations, road construction, manufacturing, and other hazardous jobs due to the necessity for communication and attentiveness to workplace dangers. She also explained job opportunities for the hearing impaired are substantially reduced because employers are reluctant to implement workplace accommodations and are hesitant to hire workers perceived to present increased jobsite risks.

Moreover, Dr. Brose opined varying levels of hearing loss can impact individuals differently, and divergent hearing loss impairment ratings may not accurately reflect actual comparative functional difficulties and workplace impediments experienced by particular individuals. She noted persons qualifying for a low hearing loss impairment rating may actually experience equal or greater impacts on their ability to engage in normal activities of daily living and occupational restrictions than persons qualifying for higher hearing loss impairment ratings. She also stated individuals qualifying for high impairment ratings related to traumatic injuries to other organs, body parts and systems, may actually experience fewer functional effects and occupational constraints than others with low hearing loss impairment ratings. For example, she noted traumatic spinal cord injuries typically qualify for much higher impairment ratings than ear injuries producing hearing loss, but often offer a better prognosis for improvement or full recovery with less significant permanent functional losses and resulting occupational restrictions.

Though Feltner's back, neck, and shoulder injury claims were settled, two BRC orders listed his constitutional challenge to the impairment rating threshold in KRS 342.7305(2) as a contested issue. The Attorney General of Kentucky was provided notice of the constitutional challenge pursuant to KRS 418.075. A formal hearing was waived, and Feltner's occupational hearing loss claim was submitted on the record.

The ALJ entered an Opinion and Award finding Feltner had sustained a 5% impairment rating for hearing loss caused by longtime exposure to occupational noise, with the last exposure occurring while he was employed by TECO. Lacking authority to determine constitutional challenges, the ALJ awarded medical benefits pursuant to KRS 342.020, but denied income benefits based on KRS 342.7305(2)'s impairment rating threshold.

The Board affirmed the ALJ's decision, agreeing Feltner's claim for PPD income benefits was controlled by KRS 342.7305(2), and neither it nor an ALJ possessed jurisdictional authority to review constitutional challenges to statutes. Feltner appealed.

II. ANALYSIS

Napier, Hatfield, and Feltner (Appellants) each suffered work-related traumatic ear injuries resulting in significant hearing loss sufficient to qualify for impairment ratings pursuant to the AMA Guides. All filed timely claims and obtained awards of medical benefits pursuant to KRS 342.020(1). All were blocked from receiving awards of PPD income benefits because their impairment ratings were less than the 8% impairment rating threshold contained in KRS 342.7305(2). All are prevented from filing a civil action seeking damages to compensate for lost earning capacity and occupational disability due to the exclusive liability provision of KRS 342.690(1), and are therefore left with no remedy. State Farm Mut. Auto Ins. Co. v. Slusher, 325 S.W.3d 318, 323 (Ky. 2010); Shamrock Coal Company, Inc. v. Maricle, 5 S.W.3d 130, 134 (Ky. 1999).

Appellants have each raised constitutional equal protection challenges asserting KRS 342.7305(2) arbitrarily imposes different treatment on them and other members of their class and subclass for awards of PPD income benefits. First, all allege the statute arbitrarily treats them differently than similarly situated workers with other traumatic injuries who may receive awards of PPD income benefits under KRS 342.730 by simply qualifying for any impairment rating. Second, all allege KRS 342.7305(2), itself, arbitrarily treats them and other members of their subclass differently than all other similarly situated hearing loss claimants who are authorized to receive PPD income benefit awards by satisfying the statute's 8% impairment rating threshold, even though all impairment-ratable hearing loss claimants purportedly endure the same or similar functional losses, diminution of daily activities, physical and social limitations, medical treatment modalities, and occupational restrictions. All argue the Supreme Court of Kentucky's decision in Vision Mining is dispositive.

A. STANDARD OF REVIEW

The Supreme Court of Kentucky has provided a succinct summary of the standard for appellate review of constitutional equal protection challenges to legislatively enacted workers' compensation statutes in Cain v. Lodestar Energy, Inc., 302 S.W.3d 39 (Ky. 2009). There, the Court held:

[t]he 14th Amendment to the United States Constitution requires persons who are similarly situated to be treated alike. Workers' 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 classification that it creates. Analysis begins with the presumption that legislative acts are constitutional.

Id. at 42-43 (citations omitted). See also Vision Mining, 364 S.W.3d at 465-69.

The purpose of the Act “is to compensate workers who are injured in the course of their employment for necessary medical treatment and for a loss of wage-earning capacity, without regard to fault,” thereby enabling them “to meet their essential economic needs and those of their dependents.” Adkins v. R & S Body Co., 58 S.W.3d 428, 430-31 (Ky. 2001) (citations omitted). The long-established general rule of construction for applying the Act is its statutes must be liberally construed to effect their humane and beneficent purposes. Oaks v. Beth-Elkhorn Corporation, 438 S.W.2d 482, 484 (Ky. 1969). Even so, courts must interpret the law to do justice to both employer and employee. Fitzpatrick v. Crestfield Farm, Inc., 582 S.W.2d 44, 47 (Ky. App. 1978).

Analysis of Appellants' constitutional equal protection challenge to the KRS 342.305(2)'s impairment rating threshold in KRS 342.7305(2) is three-pronged. First, we must determine whether the statute establishes differing treatment for hearing loss claimants with less than an 8% impairment rating than is provided other traumatic injury and hearing loss claimants. Second, we must determine whether hearing loss claimants with less than an 8% impairment rating are in all relevant respects the same as other traumatic injury and hearing loss claimants. And third, we must determine whether any differing treatment of similarly situated claimants is rationally related to achieving a legitimate state interest.

B. DIFFERING TREATMENT

Our review begins by determining whether KRS 342.7305(2) segregates Appellants and other hearing loss claimants into a separate class and subclass of injured workers by imposing different statutory treatment for awards of PPD income benefits. We hold it does.

In enacting KRS Chapter 342, known as the Workers' Compensation Act (Act), “the legislature set forth a comprehensive scheme for compensating employees injured on the job ․ for medical expenses, rehabilitation services and a portion of lost wages.” Firestone Textile Co. Div., Firestone Tire and Rubber Co. v. Meadows, 666 S.W.2d 730, 733 (Ky. 1983). KRS 342.0011(1) defines a compensable “injury” as:

any work-related traumatic event or series of traumatic events, including cumulative trauma, arising in the course of employment which is the proximate cause producing a harmful change in the human organism evidenced by objective medical finding.

1. KRS 342.730(1)(b)

KRS 342.730 governs the extent and duration of awards of disability income benefits. KRS 342.730(1)(b) and (c) sets forth the procedure for determining PPD income benefits for work-related traumatic injuries and occupational diseases. KRS 342.0011(11)(b) defines PPD as “the condition of an employee who, due to an injury, has a permanent disability rating but retains the ability to work.” (Emphasis added). Under KRS 342.730(1)(b), the permanent disability rating is derived by multiplying the injured employee's

permanent impairment rating caused by the injury or occupational disease as determined by the “Guides to the Evaluation of Permanent Impairment”

by the statute's graduated disability factor scale. (Emphasis added).

According to the AMA Guides, impairment is a loss, derangement, or dysfunction of “any body part, organ system, or organ function,” and permanent impairment ratings are medically determined

estimates that reflect the severity of the medical condition and the degree to which the impairment decreases an individual's ability to perform common activities of daily living, excluding work.

AMA Guides, at 2, 4 (emphasis added). Thus, a permanent impairment rating is only assigned when there has been a medical determination of a significant functional consequence to a body part, organ system or organ function limiting the performance of common activities of daily living. AMA Guides, at 5.

In enacting KRS 342.730(1)(b), the legislature understood impairment and disability are not synonymous with the former relating to loss of physiological function and the latter relating to loss of occupational capability. Roberts Bros. Coal Co. v. Robinson, 113 S.W.3d 181, 183 (Ky. 2003); Cook v. Paducah Recapping Service, 694 S.W.2d 684, 687 (Ky. 1985); Newberg v. Garrett, 858 S.W.2d 181, 185 (Ky. 1993).

As defined in KRS 342.0011(35) and (36), the term “permanent impairment rating” refers to “the percentage of impairment caused by the injury” as determined by the Guides and the term “permanent disability rating” refers to the product of the permanent impairment rating selected by the ALJ and the corresponding factor found in KRS 342.730(1)(b).

Tudor v. Industrial Mold & Mach. Co., Inc., 375 S.W.3d 63, 66 (Ky. 2012). The AMA Guides explain permanent impairment ratings “were designed to reflect functional limitations and not intended to measure disability,” and are “only one aspect of disability determination,” which “also includes information about the individual's skills, education, job history, adaptability, age, and environment requirements and modifications.” AMA Guides, at 4, 5, 8-9, and 13.

Under KRS 342.730(1)(b), the ALJ's “finding of a permanent impairment rating ․ is a threshold issue that forms the basis of an award.” LKLP CAC Inc. v. Fleming, 520 S.W.3d 382, 387 (Ky. 2017) (emphasis added). The statute's graduated disability factor scale then provides an objective method for the ALJ to calculate PPD income benefits under which compensation “is the product of the worker's average weekly wage, AMA impairment, and a statutory factor.” Fawbush v. Gwinn, 103 S.W.3d 5, 11 (Ky. 2003). After the ALJ has found a permanent impairment rating and determined the corresponding permanent disability rating under KRS 342.730(1)(b),

KRS 342.730(1)(c) provides benefit multipliers based on the worker's physical capacity to perform the type of work performed at the time of the injury, age, and education as well as on the cessation of employment after a return to work at the same or a greater wage. Moreover, KRS 342.730(1)(d) adjusts the duration of the award and maximum benefit to favor disability ratings that exceed 50%.

Tudor, 375 S.W.3d at 65-66. As explained by the Supreme Court of Kentucky,

[a]lthough a worker's impairment rating is a factor in determining the amount of benefits, it is but one of three factors. The statutory multiplier weights the formula to favor those workers who are more severely impaired, and the formula takes into account not only a worker's physical capacity to return to the pre-injury employment but also whether a worker who does return to work has suffered a loss of income.

Clearly, a worker's ability to perform physical labor is affected by the extent of his impairment. The greater a worker's impairment, the more difficulty he is likely to have in finding work after being injured. Although the formula that was devised in 1996 to compensate partially disabled workers may imperfectly measure an individual worker's loss, it cannot be said that it bears no rational relationship to the purpose of the income benefit or that it provides injured workers without a remedy for their loss.

Adkins, 58 S.W.3d at 432.

By requiring a medically-assigned permanent impairment rating and creating a graduated disability factor scale in KRS 342.730(1)(b), the legislature put into force its conclusion that workplace injuries with greater severity will typically correlate to greater occupational disability. Moreover, by adopting a mathematical disability formula for determining PPD income benefits, the legislature clearly sought a more objective method to achieve its legitimate state interest in limiting such income benefits to fairly compensate only severe work-related traumatic injuries resulting in actual disability.

2. KRS 342.7305(2).

Without explanation for excluding traumatic hearing loss injuries from the all-inclusive provisions of KRS 342.730(1)(b) and (c), KRS 342.730(1)(e) declares:

[f]or permanent partial disability, ․ hearing loss covered in KRS 342.7305 shall not be considered in determining the extent of disability or duration of benefits under this chapter.

Instead, echoing KRS 342.0011(1)'s definition of a traumatic “injury,” KRS 342.7305(1) states its provisions shall instead apply:

[i]n all claims for occupational hearing loss caused by either a single incident of trauma or by repetitive exposure to hazardous noise over an extended period of employment ․

As in KRS 342.730(1)(b), this provision adopts the AMA Guides for assigning permanent impairment ratings for hearing loss.

Central to the present constitutional challenges, KRS 342.7305(2) inexplicably proceeds to impose a different, substantially higher, and more difficult to satisfy 8% impairment rating threshold for hearing loss claimants, stating:

[i]ncome 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 of less than eight percent (8%). No impairment percentage for tinnitus shall be considered in determining impairment to the whole person.

Id. (Emphasis added). Thus, KRS 342.7305(1) segregates all traumatic hearing loss claimants into a special class, isolating them from all other traumatic injury claimants authorized to receive income benefits under the more inclusive impairment rating threshold enacted in KRS 342.730(1)(b). The statute also erects a wall of separation between two subclasses of hearing loss claimants, granting income benefits to those who qualify for an impairment rating of 8% or greater, but denying compensation to those failing to reach its impairment rating threshold.

Based on the foregoing, we hold by imposing an impairment rating threshold of 8% or greater for income benefits, KRS 342.7305(2) treats hearing loss claimants differently than all other traumatically injured claimants authorized to receive PPD income benefits by satisfying the minimal impairment rating threshold required by KRS 342.730(1)(b). Further, we hold KRS 342.7305(2) treats hearing loss claimants with an impairment rating of less than 8% differently than all other hearing loss claimants qualifying for impairment ratings of 8% or higher, effectively depriving the former of any relief while granting the latter fair compensation under KRS 342.730(1)(b) and (c) commensurate with all other traumatically injured claimants.

C. SIMILARLY SITUATED

Next, our analysis turns to determining whether the two classes and subclasses of PPD income benefit claimants created by the differing statutory treatment enacted in KRS 342.7305(2) are similarly situated. We hold claimants suffering traumatic ear injuries resulting in hearing loss severe enough to qualify for assignment of an impairment rating under the AMA Guides are in all relevant and consequential respects similarly situated to all other claimants suffering traumatic injuries to other body parts, organ systems, and organ functions resulting in symptoms severe enough for assignment of an impairment rating under the AMA Guides. Further, among the two subclasses of hearing loss claimants, lay and medical proof evince the same or similar functional losses, diminution of daily activities, physical and social limitations, medical treatment modalities, and occupational restrictions regardless of the degree of impairment.

Though the Act defines a compensable traumatic “injury” in KRS 342.0011(1), no separate definition is provided for “hearing loss” as addressed in KRS 342.7305. For purposes of the present appeals, “hearing loss” is best understood to mean the “[d]ecreased ability to perceive sounds.”6 The Supreme Court of Kentucky has noted hearing loss is addressed in the AMA Guides, Section 11.2, aptly titled “The Ear.” AK Steel Corp. v. Johnston, 153 S.W.3d 837, 840 (Ky. 2005); AMA Guides, 246-55. According to the AMA Guides, “[t]he ear provides sensorineural input critical to the sense of hearing and balance,” and “[p]ermanent hearing impairment is a permanently reduced hearing sensitivity.” AMA Guides, 246. Thus, hearing loss is a symptom of an underlying traumatic injury or diseased condition involving the ear.

Moreover, the Supreme Court of Kentucky has characterized hearing loss as a traumatic injury involving the ear. The Court has noted the legislature enacted KRS 342.7305 “to govern claims for traumatic hearing loss.” Alcan Foil Products, a Div. of Alcan Aluminum Corp. v. Huff, 2 S.W.3d 96, 102 n.1 (Ky. 1999). It has also held hearing loss due to long-term occupational exposure to hazardous workplace noise represents a “harmful change” caused by workplace trauma, qualifying as an “injury” under KRS 342.0011(1). Caldwell Tanks v. Roark, 104 S.W.3d 753, 756 (Ky. 2003). Again, noting “[t]he legislature enacted KRS 342.7305 in 1996 specifically to address claims for hearing loss due to single accident trauma or repetitive exposure to hazardous noise,” the Court has held “[n]oise-induced hearing loss is a form of cumulative trauma injury as defined by KRS 342.0011(1).” Quebecor Book Co. v. Mikletich, 322 S.W.3d 38, 40 (Ky. 2010) (citing Caldwell Tanks). Finally, the Court has characterized noise-induced hearing loss as a “gradual injury” under KRS 342.0011(1), stating:

[r]epetitive exposure to loud noise produces noise-induced hearing loss, a form of injury caused by the traumatic effect of the vibrations produced by loud noise on the membranes of the inner ear.

Greg's Const. v. Keeton, 385 S.W.3d 420, 424-25 (Ky. 2012) (emphasis added).

When hearing loss claims under KRS 342.7305 are more precisely understood to be symptomatic, impairment-ratable traumatic ear injuries, it is axiomatic such conditions are no different than other symptomatic, impairment-ratable traumatic injuries effecting other body parts, organ systems, and organ functions. For example, the loss of range of motion is a symptom commonly associated with traumatic injuries and diseases involving the spine or extremities which is impairment-ratable under the AMA Guides to measure severity; and loss of visual acuity is a symptom commonly associated with traumatic injuries and diseases involving the eye which is similarly impairment-ratable to establish severity.7 We further note all forms of traumatic injuries, regardless of the body part, organ system, or organ function adversely impacted, arise either suddenly, from a single harmful incident, or gradually, from long-term exposure to cumulative harmful events, and can be difficult to diagnose, treat, measure, or manage. The shared characteristics common to all traumatic injuries lead us to hold symptomatic, impairment-ratable traumatic ear injuries are in all relevant and consequential respects the same as any other type of symptomatic, impairment- ratable traumatic injury involving other parts of the human organism. Such conditions are compellingly the same or similar in cause (occupational), in type (traumatic injury), in impact (functional loss or “impairment”), in result (permanent restrictions), and/or in outcome (disability). Whether involving the ear or any other body part, organ system, or organ function, we hold “a traumatic injury is a traumatic injury is a traumatic injury.”8

Even within the two subclasses of hearing loss claimants created by the heightened impairment rating threshold of KRS 342.7305(2), we discern no relevant or consequential differences rationally justifying the statute's grant of PPD income benefits based on KRS 342.730(1)(b) and (c) to some, but not all, claimants suffering symptomatic, impairment-ratable hearing loss. Lay and medical evidence convinces us all hearing loss claimants—whether qualifying for an impairment rating at, above, or below 8%—share many commonalities, including significant functional losses, diminution of daily activities, physical and social limitations, medical treatment modalities, and occupational restrictions.

Regardless of impairment rating, it has been universally recommended claimants suffering significant hearing loss rely on hearing aids and other amplification devices, use ear protection, avoid further ear trauma and hazardous noise, and/or eliminate jobs requiring hearing acuity to avoid risk of harm to themselves and others. Further, Dr. Brose's testimony indicated no direct correlation between increasing hearing loss impairment ratings and greater disabling hearing loss impacts. Thus, in determining traumatic hearing loss to be permanent, incurable, and disabling at any symptomatic, impairment-ratable level, we hold relative to the subclasses of hearing loss claimants created by KRS 342.7305(2), “hearing loss is hearing loss is hearing loss.”

D. NO RATIONAL RELATION TO A LEGITIMATE STATE INTEREST

Our analysis ends with determining whether the differing treatment of similarly situated traumatic ear injury and hearing loss claimants under KRS 342.7305(2) is rationally related to achieving a legitimate state interest. We hold it is not.

Appellants argue the Supreme Court of Kentucky's decision in Vision Mining is dispositive regarding this issue. We agree.

In Vision Mining, two injured underground coal mine workers filed separately for income benefits due to work-related pneumoconiosis. Both applications were dismissed pursuant to KRS 342.316. The statute imposed a stringent two-step procedure to establish coal workers' pneumoconiosis, consisting of a procedure for consensus radiographic readings by a three-member panel of physicians and rebuttal of consensus panel assessments pursuant to a clear and convincing evidence standard. In contrast, KRS 342.315 allowed all other occupational pneumoconiosis and diseases to be established through evaluation by an appointed university medical examiner (physician), whose clinical findings and opinions could be rebutted pursuant to the less demanding reasonable basis standard. In each claim, the Board affirmed the dismissal, holding statutory provisions had been correctly applied. On review, two panels of this Court held the statute unconstitutional due to violation of equal protection guarantees.

The Supreme Court of Kentucky consolidated the two appeals and affirmed the Court of Appeals. Though KRS 342.316 had survived previous equal protection challenges, the Court noted “this is the first challenge based on the less favorable statutory evidentiary treatment to which coal workers' pneumoconiosis claimants are subjected compared to all other pneumoconiosis claimants.” Vision Mining, 364 S.W.3d at 470. Upon review, the Court determined “there is no ‘natural’ or ‘real’ distinction between coal workers' pneumoconiosis and other forms of pneumoconiosis,” noting “whether caused by coal, rock, asbestos, or brick dust, ‘pneumoconiosis is pneumoconiosis is pneumoconiosis.’ ”9 Id. at 472 (quoting Holmes). Thus, the Court concluded:

[h]aving carefully reviewed the record and the arguments of the parties, we cannot discern a rational basis or substantial and justifiable reason for the disparate treatment of coal workers in this instance. 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 violates the equal protection guarantees of the Federal and State Constitutions.

Id. at 474. The Court premised its holding on the purpose of federal and state equal protection guarantees to prevent “governmental decision makers from treating differently persons who are in all relevant respects alike.” Id. at 465 (quoting Nordlinger v. Hahn, 505 U.S.1, 10, 112 S.Ct. 2326, 2331, 120 L.Ed.2d 1 (1992)). To that end, the Court observed, “[a]lthough the rational basis standard certainly favors the government, it would be incorrect to state that courts always hold that legislatively-created classifications are rationally related to a legitimate state interest.” Id. at 466. The Court emphasized “the rational basis standard, while deferential, is certainly not demure.”10 Id. at 469.

The Supreme Court held “it is simply counterintuitive to prescribe differing standard of proof requirements for the same disease.” Id. at 472 (emphasis original). Because we discern no “inherent differences” among traumatic injuries, we hold it is simply counterintuitive to prescribe differing impairment rating thresholds for the same type of injury. Durham, 272 S.W.3d at 194. In Vision Mining, the Court rejected several justifications asserted in support of disparate treatment of coal miners' pneumoconiosis claimants allowed by KRS 342.316. Regarding cost-savings, the Court reasoned,

it is axiomatic that, if the enhanced procedure saves money, the state would save more money by subjecting all occupational pneumoconiosis claimants to the more exacting procedure and higher rebuttable standard.

Vision Mining, 364 S.W.3d at 472 (emphasis original). Regarding expediting claims, the Court reasoned,

we reject any contention that the two-step procedure promotes prompt and efficient processing of coal mining pneumoconiosis cases, as an additional step presents nothing more than another formidable hurdle for the coal worker before he or she can receive compensation.

Id. Finally, regarding impeding physician dishonesty, the Court reasoned,

we believe any venal element to an initial doctors' medical diagnosis in the context of coal workers' pneumoconiosis would apply with equal force to pneumoconiosis caused by asbestos, rock, or metal dust. To hold otherwise, we must assume that doctors providing the initial diagnosis for all other types of pneumoconiosis are inherently more trustworthy, and thus the additional consensus panel is only necessary to defend against physicians that testify for coal workers. There is no basis for such an assumption limited to physicians from the coal fields of Kentucky and it belies common sense[.]

Id. Because “the more stringent proof and procedures required” for coal workers' pneumoconiosis claims under KRS 342.316 lacked “a rational basis or substantial justification,” the Court declared the statutory provisions unconstitutional. Id. at 473.

The Supreme Court of Kentucky's analysis in Vision Mining resolves the present appeals. If the overarching legislative goal under the Act was merely cost-savings, the minimal impairment rating threshold of KRS 342.730(1)(b) could simply be replaced with the heightened requirement of KRS 342.7305(2). However, the legislature's mathematical disability formula enacted in KRS 342.730(1)(b) and (c) evinces a balanced primary goal of fair compensation to accomplish the Act's humane and beneficent purposes while providing justice to both employer and employee. Regardless of the impairment rating threshold chosen, the same requirement must apply to all work-related traumatic injuries.

Further, the choice of impairment rating threshold—whether minimal or heightened—bears little or no relevance to promoting greater efficiency and accuracy in the claims process, but can erect a “formidable hurdle” to obtaining PPD income benefits. It is well-established

[a] classification renders a statute special where it is made to depend, not upon any natural, real or substantial distinction, inhering in the subject matter, such as suggests the necessity or propriety of different legislation in regard to the class specified, but upon purely artificial, arbitrary, illusory, or fictitious conditions, so as to make the classification unreasonable, and unjust. Sometimes, it is said that a law is special where its classification is not based upon some reasonable and substantial difference in kind, situation, or circumstance bearing a proper relation to the purpose of the statute, but which embraces less than the entire class of persons to whose condition such legislation would be necessary or appropriate, having regard to the purpose for which the legislation was designed.

Reid v. Robertson, 304 Ky. 509, 200 S.W.2d 900, 903 (1947) (emphasis added). Because we have held there is no “real or substantial” difference in the physical, functional, medical, and/or occupational impacts associated with all significant hearing loss qualifying for impairment ratings, we further hold the heightened impairment threshold enacted in KRS 342.7305(2) is founded on a “purely artificial, arbitrary, illusory, or fictitious” distinction bearing no “proper relation to the purpose of the statute,” and results in an “unreasonable” and “unjust” classification. By denying PPD income benefits to those failing to reach its heightened impairment rating threshold, the statute improperly affords governmentally sanctioned separate and unequal treatment to a subclass of hearing loss claimants vis-à -vis all other traumatically injured hearing loss claimants who are granted fair compensation under KRS 342.730(1)(b) and (c).

Finally, it is disingenuous to suggest the heightened impairment rating threshold in KRS 342.7305(2) offsets any greater dishonesty, inability, or incompetence among physicians evaluating occupational hearing loss, and any such suggestion “encapsulates the very meaning of arbitrariness, irrationality, and unreasonableness.” Vision Mining, 364 S.W.3d at 472-73. In KRS 342.730(1)(b), the legislature adopted impairment ratings medically assigned in accordance with the AMA Guides as a reliable “standardized, objective approach” for identifying significant traumatic injuries and measuring severity. See AMA Guides, at 1. In doing so, the legislature evinced its understanding that no impairment rating is assigned if a traumatic injury “has no significant organ or body system functional consequences and does not limit the performance of the common activities of daily living.” Id., at 5. Thus, the legislature's enactment of an arbitrarily higher impairment rating threshold in KRS 342.7305(2) fails to advance its primary goal of fair compensation of significant traumatic injuries, a purpose already accomplished in KRS 342.730(1)(b) and (c).

Vision Mining held the legislature must treat claimants suffering all forms of occupational pneumoconiosis the same. For the same reasons, all traumatically injured claimants—including those suffering hearing loss—must also be treated the same. On the strength of Vision Mining, we discern no rational basis to justify differing and discriminatory treatment of workers seeking PPD income benefits to compensate traumatic ear injuries resulting in significant hearing loss, as objectively measured by impairment ratings under the AMA Guides.

Countering Appellants' assertion that Vision Mining is dispositive, Appellees argue the Supreme Court of Kentucky has already impliedly approved a legitimate state interest justifying KRS 342.7305(2)'s heightened impairment rating threshold for hearing loss claimants in AK Steel Corp. v. Johnston, 153 S.W.3d 837 (Ky. 2005). We disagree.

The two consolidated appeals in Johnston concerned proper construction of KRS 342.7305(2) and (4), rather than a constitutional equal protection challenge. The issues were two-fold. First, whether statistical estimates of age-related hearing loss could rebut and reduce an impairment rating otherwise satisfying the heightened threshold in KRS 342.7305(2), and thereby preclude an award of PPD income benefits. Second, if not, whether statistical estimates of age-related hearing loss could rebut the rebuttable presumption in KRS.7305(4) that a claimant's entire impairment is work-related, and thereby require apportionment of causation, reducing an employer's liability for PPD income benefits. Johnson, 153 S.W.3d at 841.11

Our Supreme Court held the statistical estimates of age-related hearing loss based on impairment ratings could not be employed as reliable rebuttal evidence relative to KRS 342.7305(2) or KRS 342.7305(4). Id. at 842. Further, the Court reasoned, “even if one were to assume” the presence of both age-related and occupational hearing loss, the heightened impairment rating threshold in KRS 342.7305(2) limited “income benefits to instances where the impairment is substantial and workplace trauma is likely to be a substantial cause.” Id. at 841-42. Appellees argue the Court thereby recognized a rational basis for the heightened impairment rating threshold in KRS 342.7305(2). Their argument fails for several reasons.

First, no equal protection challenge to KRS 342.7305(2) was presented to the Supreme Court in Johnston. Thus, the validity of any surmised rational relationship was not addressed, and the decision is, therefore, neither instructive nor dispositive for our review.

Second, the Supreme Court specifically held “the magnitude of a hearing impairment” is to be calculated under the AMA Guides without regard to its cause, allocation of cause being a separate matter. Johnston, 153 S.W.3d at 841. The Court further recognized the rebuttable presumption of causation in KRS 342.7305(4) makes no reference to the natural aging process, and requires no direct proof of causation, but merely “proof of a pattern of hearing loss that is compatible with long-term hazardous noise exposure.” Id. Thus, having rejected impairment-based statistical estimations of age-related hearing loss as reliable rebuttal proof, the Court's conjectural ruminations of any correlation between the heightened impairment rating threshold in KRS 342.7305(2) and causation apportionment were clearly not intended to provide a rational basis to justify the statute's differing treatment of similarly situated claimants.

Third, the Supreme Court has already held the “greater emphasis on impairment” enacted in KRS 342.730(1)(b) and (c) to be rationally related to achieving the legislature's legitimate goal of fairly compensating all claimants sustaining what it considered to be significant traumatic injuries as established and measured by impairment ratings assigned under the AMA Guides. FEI Installation, Inc. v. Williams, 214 S.W.3d 313, 318 (Ky. 2007). The Court held this emphasis reflected the legislature's conclusion that “existence of a permanent impairment rating” demonstrates a work-related injury resulting in “disability that is permanent and appreciable enough to warrant income benefits.” Id. The Court has also held this legislative emphasis on impairment ratings was properly intended to limit an ALJ's discretion in determining the extent of PPD, while favoring “more severely impaired workers who were more likely to have a greater occupational disability” and granting those “who were the most severely impaired ․ benefits for a longer period of time.” Fawbush at 11-12 (citing Adkins v. R & S Body Co., 58 S.W.3d 428 (Ky. 2001)). Because the Court has specifically approved the legislature's adoption of any impairment rating under the AMA Guides as sufficient to establish a significant traumatic injury for PPD income benefit entitlement, Appellees' argument that the Court's ruminations in Johnston provide a rational basis for KRS 342.7305(2)'s differing higher and exclusionary impairment threshold for a similarly situated class and subclass of traumatic ear injury claimants is meritless.

And fourth, even if KRS 342.7305(2) is stricken as unconstitutional, KRS 342.0011(1) and KRS 342.730(1)(b) and (c) would exclude any pre-existing active age-related hearing loss conditions. The definition of a compensable traumatic “injury” in KRS 342.0011(1) already excludes “the effects of the natural aging process,” and KRS 342.730(1)(b) and (c) already limits the required impairment rating to one “caused by the injury or occupational disease.” Further,

[i]t has long been established that disability which exists prior to a work-related injury is viewed as prior, active, and noncompensable in the context of a claim for the injury unless the injury, by itself, would have caused the entire disability.

Spurlin v. Brooks, 952 S.W.2d 687, 691 (Ky. 1997) (citations omitted). Conditions are “pre-existing active” if “symptomatic and impairment ratable” immediately prior to the occurrence of a work-related injury. Finley v. DBM Technologies, 217 S.W.3d 261, 265 (Ky. 2007); Comair, Inc., v. Helton, 270 S.W.3d 909, 913 (Ky. App. 2008). Thus, Appellees' cannot reasonably argue the Court's ruminations in Johnston suggests a rational relationship between the discriminatory heightened impairment rating threshold in KRS 342.7305(2) and any legislative concern for excluding pre-existing active age-related conditions.

Finally, Appellees argue KRS 342.7305(2) should be upheld because its provisions apply equally to all hearing loss claimants and to all types of hearing loss. Specifically, Appellees note the statute requires all hearing loss claimants to undergo the same procedure for evaluation by a university medical examiner and to meet the same heightened impairment rating threshold. If considered in a vacuum, KRS 342.7305(2) admittedly imposes its heightened impairment rating threshold equally among all hearing loss claimants. However, with apologies to George Orwell, the argument is akin to asserting “all hearing loss claimants are treated equally, but some are treated more equally than others.”12 More precisely, the statute offends equal protection guarantees by creating two separate and unequal subclasses of similarly situated hearing loss claimants—all of whom suffered work-related injuries severe enough to qualify for an impairment rating under the AMA Guides, and all of whom endured equivalent permanent sensory loss, limited treatment modalities, diminution of daily activities, and occupational restrictions and preclusions, but some of whom are denied equal access to income benefits due to imposition of an arbitrary impairment rating threshold. If considered globally, KRS 342.7305(2) imposes its heightened impairment rating threshold unequally between traumatic ear injury claimants and all other traumatic injury claimants. In this respect, Appellees' argument glosses over the fact that traumatic ear injuries are in all relevant and consequential respects the same as all other traumatic injuries. As such, the mere fact KRS 342.7305(2) discriminates equally against the entire class of hearing loss claimants vis-à -vis all other traumatically injured claimants does not save the statute from equal protection perdition.

III. CONCLUSION

Having carefully reviewed the records and the arguments of the parties, we discern no rational basis or substantial and justifiable reason for the disparate treatment of workers seeking PPD income benefits for occupational hearing loss resulting from traumatic ear injuries. Traumatic injuries involving the ear are in all relevant and consequential respects the same as any other traumatic injury involving other organs, body parts and systems. Yet, KRS 342.7305(2) imposes a much higher impairment rating threshold on hearing loss claimants than KRS 342.730(1)(b) and (c) requires of all other traumatic injury claimants. This arbitrary difference in statutory treatment of similarly situated traumatic injury claimants violates the equal protection guarantees of the Federal and Kentucky Constitutions. Therefore, we hold the impairment rating threshold in KRS 342.7305(2) unconstitutional.

For the foregoing reasons, we vacate the Board's decision in each case and remand for further proceedings and entry of orders consistent with this Opinion.

FOOTNOTES

1.   Kentucky Revised Statutes.

2.   Involving both ears.

3.   Guides to the Evaluation of Permanent Impairment, Fifth Edition, Linda Cocchiarella & Gunnar B.J. Anderson, American Medical Association (AMA Press, 2000).

4.   Napier had also filed a separate Application for Resolution of Injury Claim (Form 101), alleging a work-related back injury and a separate Application for Resolution of Coal Workers' Pneumoconiosis Claim (Form 102), alleging a work-related onset of that disease, but because these claims were already under submission before a different trier, the Administrative Law Judge (ALJ) overruled a motion to consolidate those claims with Napier's hearing loss claim.

5.   At the first benefit review conference (BRC), the ALJ sustained Hatfield's motion to include a work-related psychological impairment, and granted all parties additional time to present further proof. Because Hatfield has not appealed the ALJ's subsequent dismissal of the psychological claim, we will not reference it further.

6.   Taber's Cyclopedic Medical Dictionary 852 (17th ed. 1993).

7.   AMA Guides, at 389-404 (spine generally); 417-22 (cervical spine); 533-38 (lower extremities); 405-11 (lumbar spine); 593-98 (measurement techniques); 423-26 (nerve root/spinal cord); 411-17 (thoracic spine); and 277-304 (visual system).

8.   In Vision Mining, the Supreme Court of Kentucky abrogated its prior decision in Kentucky Harlan Coal Co. v. Holmes, 872 S.W.2d 446 (Ky. 1994). In Holmes, a coal mine presented an equal protection challenge to KRS 342.732's irrebuttable presumption of total disability for coal miners' pneumoconiosis, arguing the statute discriminated “unlawfully between coal companies and businesses in other industries.” The Court disagreed, holding the statute was designed to address burgeoning costs placed on other Kentucky industries by the coal industry. Holmes, 872 S.W.2d 448-49. However, Chief Justice Robert Stephens dissented, writing, “With apologies to Gertrude Stein, ‘pneumoconiosis is pneumoconiosis is pneumoconiosis.’ ” Id. at 456. Seventeen years later, in Vision Mining, the Court reversed itself, quoting Chief Justice Stevens' paraphrase and holding, “unlike Holmes, we discern no rational basis” justifying KRS 342.316's differing treatment, “as it is simply counterintuitive to prescribe differing standard of proof requirements for the same disease.” Vision Mining, 364 S.W.3d at 472 (emphasis original).

9.   In addition to abrogating its earlier decision in Holmes, the Supreme Court of Kentucky also reversed its prior holding in Durham v. Peabody Coal Co., 272 S.W.3d 192 (Ky. 2008). There, claimants seeking income benefits due to coal miners' pneumoconiosis asserted an equal protection challenge to KRS 342.316's consensus procedure and clear and convincing rebuttal standard. They argued the statute unlawfully discriminated between them and worker's seeking income benefits for traumatic injuries under KRS 342.730, which allowed various types of proof and merely required proof of a permanent impairment rating. Durham, 272 S.W.3d at 195. The Court upheld the statute, holding, in part, “inherent differences between coal workers' pneumoconiosis and traumatic injuries provide a reasonable basis or substantial and justifiable reason for different statutory treatment.” Id. at 195-196. In Vision Mining, the Court distinguished Durham, holding “[u]nlike Durham, different names do not justify differing treatment—all forms of pneumoconiosis (whatever type) develop gradually and can be difficult to diagnose.” Vision Mining, 364 S.W.3d at 472.

10.   The constitutional analysis announced in Vision Mining was reaffirmed in Parker v. Webster County Coal, LLC (Dotiki Mine), 529 S.W.3d 759, 767 (Ky. 2017), where the Supreme Court struck a statute terminating PPD income benefits relative to a claimant's qualifying for normal old-age Social Security retirement benefits, but not impacting compensation awarded to teachers drawing from their retirement plan. There, the Supreme Court similarly held, “[p]roving the absence of a rational basis or of a substantial and justifiable reason for a statutory provision is a steep burden; however, it is not an insurmountable one.”

11.   In Johnston, a university medical examiner diagnosed claimants with occupational hearing loss under KRS 342.7305(1) and assigned impairment ratings qualifying for PPD income benefits under the heightened threshold of KRS 342.7035(2). These findings triggered the rebuttable presumption of causation in KRS 342.7305(4). Id. at 838-39. However, the examiner testified government statistical estimates of age-related hearing loss based on impairment ratings suggested substantial portions of the claimants' impairment ratings could possibly be non-work-related. Id. Even so, the examiner cautioned: not all people experience age-related hearing loss; the estimates of age-related hearing loss were not part of the AMA Guides; the estimates merely reflected statistical hearing loss averages which might not accurately reflect individualized experience; the estimates were not directly applicable to impairment ratings assigned under the AMA Guides, which measured hearing loss only at the middle frequencies involved in speech; and using the estimates to apportion age-related hearing loss was “definitely speculative.” Id. at 839, 841.

12.   A reference to the phrase from George Orwell's 1945 novel, Animal Farm, stating, “All animals are equal, but some animals are more equal than others.”

NICKELL, JUDGE:

ALL CONCUR.