Opinion of the Court by Justice SCOTT.
Notwithstanding their 37 and 34 years' work in underground coal mines, the Workers' Compensation Board affirmed decisions to dismiss both Appellants' applications for benefits because the "consensus readings" of their X-rays interpreted them to be negative for coal workers' pneumoconiosis (black lung).
In so doing, both panels of the Court of Appeals determined that such provisions denied the claimants and other workers who suffer from coal workers' pneumoconiosis equal protection under the law by placing a more stringent burden of proof on them than those who suffer from pneumoconiosis from other sources. Having heard these two cases together and having extensively reviewed their records and histories, we agree with the conclusions of the Court of Appeals.
These appeals involve an equal protection challenge to KRS 342.316, which defines the evidentiary procedure and standard for coal workers' pneumoconiosis claims. As a result, before delving into their background, we believe it prudent to address the distinctions, if any, between coal workers' pneumoconiosis (contracted from coal dust) and pneumoconiosis contracted from other dusty particulates, as well as to outline the differing statutory treatment of coal workers' pneumoconiosis versus other pneumoconiosis.
Although the disease is given different names depending upon the source of the dust, there is no "natural" or "real" medical distinction between coal workers' pneumoconiosis and other occupational pneumoconiosis:
Kentucky Harlan Coal Co. v. Holmes, 872 S.W.2d 446, 458 (Ky.1994) (Stephens, C.J., dissenting). Simply put, "pneumoconiosis is pneumoconiosis is pneumoconiosis." Id. at 456 (quotation marks omitted); see also STEDMAN'S MEDICAL DICTIONARY 1522 (28th ed.2006) (describing pneumoconiosis as "[ijnflamation commonly leading to fibrosis of the lungs caused by the inhalation of dust incident to various occupations. ...").
Despite the fact that there is no real distinction between the various forms of pneumoconiosis, Chapter 342 of the Kentucky Revised Statutes treats coal workers differently than those from other occupations with respect to workers' compensation.
For coal workers' pneumoconiosis, KRS 342.316(3) requires a different procedure to establish its existence than it requires for all other types of pneumoconiosis. In addition, KRS 342.316(13) requires "clear and convincing" evidence to rebut a panel consensus for coal workers' pneumoconiosis claims, while KRS 342.315(2)—addressing other occupational pneumoconiosis and diseases—requires only "a reasonable basis" to rebut a university evaluator's clinical findings and opinions, i.e. a standard lower than "clear and convincing." Magic Coal Co. v. Fox, 19 S.W.3d 88, 95 (Ky. 2000).
In the first instance, KRS 342.316(3) requires a two-step "consensus" procedure for evaluating X-ray evidence of coal workers' pneumoconiosis. Hunter Excavating v. Bartrum, 168 S.W.3d 381, 382 (2005). Pursuant to this statute, a claimant must submit an X-ray, along with an interpretation of that X-ray. KRS 342.316(3)(b)1. The employer may then submit its own X-ray and interpretation. KRS 342.316(3)(b)4.d. If the two interpretations do not agree, the highest quality X-ray is sent to a panel consisting of three individual "B" readers,
To encourage a consensus among the three randomly selected "B" readers, KRS 342.794(4) provides that the "readers" are evaluated not only with respect to the timeliness and completeness of their reports, but also as to "the frequency at which the physician's classification of X-rays differs from the consensus reading." In fact, the statute compels removal of a physician "from the `B' reader list ... if the physician's interpretations of X-rays are not in conformity with the consensus reading fifty percent (50%) of the time." Id. (emphasis added).
Secondly, once a consensus is reached by at least two of the three chest X-ray interpreters, it is presumptively correct "unless overcome by clear and convincing evidence." KRS 342.316(13). In Fitch v. Burns, 782 S.W.2d 618, 622 (Ky.1989), this Court concluded that "this approach requires the party with the burden of proof to produce evidence substantially more persuasive than a preponderance of evidence, but not beyond a reasonable doubt." However, beyond establishing the boundaries (somewhere between preponderance of evidence and beyond a reasonable doubt), the Court asserted that it could provide no definition or guideline as to how a court should apply this evidentiary standard:
Id. (emphasis added). Yet, in other instances, we have defined the standard as "proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent-minded people." See, e.g., Commonwealth Cabinet for Health and Family Services v. T.N.H., 302 S.W.3d 658, 663 (Ky.2010) (citation omitted); see also BLACK'S LAW DICTIONARY 636 (9th ed.2009) (defining "clear and convincing evidence" as "[e]vidence indicating that the thing to be proved is highly probable or reasonably certain.").
In the context of coal workers' pneumoconiosis claims, the decision of the ALJ in the Gardner claim demonstrates that additional X-ray evidence, testimonial evidence as to increasing difficulty breathing, and over 37 years' work in underground mining, did not constitute "clear and convincing evidence" sufficient to rebut the consensus reached by two chest X-ray interpreters. See infra Section II.A. Thus, as indicated, overcoming the presumption
In contrast to coal workers' pneumoconiosis, KRS 342.316(3)(b)4.b. and KRS 342.315(1) require workers suffering from non-coal-related pneumoconiosis to only undergo a university evaluation rather than a consensus process. In this regard, KRS 342.316(3)(b)4.b. provides that "[t]he commissioner shall assign the claim to an administrative law judge and, except for coal workers' pneumoconiosis claims, shall promptly refer the employee to such physician or medical facility as the commissioner may select for examination." (Emphasis added). And, KRS 342.315(1) states that "[t]he commissioner shall contract with the University of Kentucky and the University of Louisville medical schools to evaluate workers who have had injuries or become affected by occupational diseases covered by this chapter."
Moreover, workers suffering from non-coal-related pneumoconiosis are not required to produce "clear and convincing evidence" to rebut these evaluations. Upon sufficient grounds, the ALJ may disregard them. KRS 342.315(2) states that "the clinical findings and opinions of the [university] evaluator [are] afforded presumptive weight by administrative law judges and the burden to overcome such findings and opinions ... fall[s] on the opponent of that evidence." In Fox, 19 S.W.3d at 95, this Court rejected the Workers' Compensation Board's determination that this presumption could only be overcome by "clear and convincing evidence." Based upon KRE 301, the Court instead recognized the discretion afforded an ALJ with respect to non-coal-related pneumoconiosis and held that that KRS 342.315(2) only calls for a reasonable basis to rebut a university evaluator's clinical findings and opinions:
Id. at 98 (emphasis added). Yet, in coal workers' pneumoconiosis claims, the authority of the fact-finder to weigh the conflicting medical evidence is restricted.
Based upon the language of KRS 342.316, along with the relevant subsections of KRS 342.315 and KRS 342.794, we believe that coal workers' pneumoconiosis claimants are subjected to much more stringent statutory treatment than all other pneumoconiosis claimants. Specifically, a coal workers' pneumoconiosis claimant must endure a more exacting procedure to prove his claim and is subjected to a much higher rebuttable standard,
Perhaps in an attempt to justify the disparate treatment between coal workers' pneumoconiosis and other pneumoconiosis stemming from the two-step "consensus" procedure and the "clear and convincing" evidentiary standard, KRS 342.732 offers different benefits for coal claimants than KRS 342.730, which generally addresses the determination of income benefits for disability. Thus, some of these coal workers' pneumoconiosis benefits, although they still require a "consensus finding" of
This benefit requires that he or she quit working in the coal mines, KRS 342.732(1)(a)8., and attend school, KRS 342.732(l)(a)2. However, only a de minimis number of coal workers who filed claims received a RIB from 2003 to 2010.
(Emphasis added).
In contrast, KRS 342.730 does not offer equivalent benefits for non-coal pneumoconiosis
(Emphasis added). The essential point, however, is that all coal mining claimants, including those seeking benefits, or even retraining benefits, are subjected to the two-step "consensus" procedure and corresponding "clear and convincing" evidentiary standard of KRS 342.316, as well as the statute's minimum exposure requirement in the processing of their claims:
KRS 342.316(4)(b).
With this statutory framework and the delineation of pneumoconiosis in mind, we now turn to the facts of the two cases before us.
Jesse Gardner was born in 1946. He filed an application for benefits under KRS 342.732 on August 15, 2007, after working as an underground coal miner for 37 years. The application stated that his last exposure to coal dust occurred on January 31, 2005. He did not assert a specific respiratory impairment.
The parties subsequently submitted the following evidence:
Party "B" reader X-ray Date Quality grade Category15 Claimant Dr. Powell 07/13/2007 2 2/2 Employer Dr. Wiot 12/27/2007 1 0/0
Because the parties' reports were not in consensus, the Office of Workers' Claims (now the Department of Workers' Claims) hired a panel of three randomly-selected "B" readers to whom they submitted the X-rays with directions to choose the better quality X-ray and render a report of that X-ray. The panel reported as follows:
"B" reader X-ray date Quality grade Category Dr. Anderson 12/27/2007 216 1/0 Dr. Jarboe 12/27/2007 1 0/0 Dr. Pope 12/27/2007 2 0/0
The Office then notified the parties that the panel consensus was category 0/0.
Gardner thereafter testified at the hearing concerning the coal mine employers for whom he had worked and the nature of the work that he performed underground. He also testified to experiencing increasing difficulty breathing during the past year, particularly if he walked quickly, climbed steps, or carried something that was heavy. He stated that he began to smoke when was about 16 years old and smoked about a pack a day until quitting many years ago. He also stated that no physician informed him that he suffered from pneumoconiosis until Dr. Powell diagnosed the condition in August 2007.
In spite of his 37 years' experience in underground coal mining,
Joe Martinez was born in 1937.
The parties subsequently submitted the following evidence:
Party "B" reader X-ray Date Quality grade Category
Claimant Dr. Baker 05/17/2002 3 1/0 Employer Dr. Pope 12/23/2002 2 negative
Because the parties' reports were not in consensus, the Office of Workers' Claims hired a panel of three randomly-selected "B" readers to whom they submitted the X-rays with directions to choose the better quality X-ray and render a report of that X-ray. The panel reported as follows:
Quality
"B" reader X-ray date grade Category
Dr. Rosenberg 12/23/2002 2 0/1
Dr. Ramakrishnan 12/23/2002 2 0/0
Dr. Dineen unknown 1 0/0
The Office then notified the parties that the panel consensus was category 0/0. There is no indication that either party submitted any rebuttal evidence.
In spite of Martinez's 34 years' experience in underground coal mining, the ALJ dismissed the claim, finding that he failed to rebut the consensus classification with clear and convincing evidence. As in the Gardner case, the Board noted it lacked jurisdiction to decide the constitutional question that Martinez raised and thus affirmed. The Court of Appeals also reversed, holding that both the consensus procedure and the clear and convincing evidentiary standard for rebutting a panel consensus were unconstitutional.
To properly assess whether this procedure and the evidentiary standard are unconstitutional, we must now examine the purposes, tests, and precedents with respect to equal protection under the law as recognized by both the United States and Kentucky Constitutions.
Citizens of Kentucky enjoy equal protection of the law under the 14th Amendment of the United States Constitution and Sections 1, 2, and 3 of the Kentucky Constitution. D.F. v. Codell, 127 S.W.3d 571, 575 (Ky.2003). Simply put, the 14th Amendment requires persons who are similarly situated to be treated alike. City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). And Sections 1, 2, and 3 of the Kentucky Constitution also provide that the legislature does not have arbitrary power and shall treat similarly situated persons equally.
In sum, the goal of the 14th Amendment to the United States Constitution, as well as Sections 1,2, and 3 of the Kentucky Constitution, is to "keep[] governmental decision makers from treating differently persons who are in all relevant respects alike."
Currently, there are three levels of review applicable to an equal protection challenge. See, e.g., Steven Lee Enterprises
Workers' compensation statutes concern matters of social and economic policy. Cain v. Lodestar Energy, Inc., 302 S.W.3d 39, 42 (Ky.2009). As a result, such a statute is not subject to strict or immediate scrutiny and therefore must be upheld if a "rational basis" or "substantial and justifiable reason" supports the classifications that it creates:
Id. at 42-43 (footnotes omitted).
Although 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. The United States Supreme Court has made it abundantly clear that the three levels of review constitute guidelines for constitutional inquiry and are not dispositive edicts. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) ("[W]e wish to dispel the notion that strict scrutiny is strict in theory, but fatal in fact.").
In Allegheny Pittsburgh Coal Co. v. County Com'n of Webster County, W. Va., 488 U.S. 336, 109 S.Ct. 633, 102 L.Ed.2d 688 (1989) and City of Cleburne, 473 U.S. 432, 105 S.Ct. 3249, the United States Supreme Court unanimously identified equal protection violations based upon the rational basis standard.
In City of Cleburne, a Texas city denied a special use permit for the operation of a group home for the mentally retarded pursuant to a municipal zoning ordinance requiring permits for such homes. 473 U.S. at 435, 105 S.Ct. 3249. Our nation's highest court stated that "where individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement, the courts [should be] very reluctant... to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued." Id. at 441-442, 105 S.Ct. 3249. However, the court refused to countenance arbitrary classifications:
Id. at 446-447, 105 S.Ct. 3249 (citations omitted). "Because ... the record [did] not reveal any rational basis for believing that the [group] home would pose any special threat to the city's legitimate interests," the court deemed the ordinance invalid as applied. Id. at 448, 105 S.Ct. 3249 (emphasis added).
Following in the footsteps of the United States Supreme Court, this Court has also found equal protection violations based upon the rational basis standard.
Id. at 725.
Thus, our precedent, along with that of the United States Supreme Court, demonstrates that the rational basis standard, while deferential, is certainly not demure. This standard encompasses the long held principle that "[classification `must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily, and without any such basis.'" McLaughlin v. State of Fla., 379 U.S. 184, 190, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964) (citation omitted) (emphasis added); see also Frontiero v. Richardson, 411 U.S. 677, 683, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) ("Under `traditional' equal protection analysis, a legislative classification must be sustained unless it is `patently arbitrary' and bears no rational relationship to a legitimate governmental interest.") (emphasis added); Elk Horn Coal Corp. v. Cheyenne Resources, Inc., 163 S.W.3d 408, 414 (Ky.2005) ("`[A]rbitrary and irrational' discrimination violates the Equal Protection Clause even under the rational-basis standard of review.") (footnote omitted) (emphasis added). Simply put, arbitrary selection "`can never be justified by calling it classification.'" McLaughlin, 379 U.S. at 190, 85 S.Ct. 283 (citation omitted).
Having set forth the differing statutory evidentiary treatment of pneumoconiosis claims, the background of the two cases on appeal, and the purposes, tests, and precedents with respect to equal protection, we will now address whether the procedure and evidentiary standard that KRS 342.316 applies only to coal workers' pneumoconiosis claimants infringes upon coal workers' rights to equal protection under the law.
Gardner and Martinez assert that both the "consensus procedure" and the "clear and convincing" evidentiary standard KRS 342.316 applies to coal workers' pneumoconiosis claims violate the rights of coal workers to equal protection under the law. The claimants contend that the statute unfairly and unlawfully discriminates against coal workers who are injured by, and through exposure to coal dust, as opposed to workers who suffer from pneumoconiosis from other sources. According to the claimants, this unfavorable treatment is arbitrary, capricious, and not rationally related to any legitimate state interest. Moreover, they allege there no substantial and justifiable reason to support it exists. Our analysis begins with the presumption that legislative acts are constitutional. United Dry Forces v. Lewis, 619 S.W.2d 489 (Ky.1981); Sims v. Board of Education of Jefferson County,
Although we have considered other equal protection challenges before, 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.
Id. at 452-453 (emphasis added). Thus, there was a rational basis for the disparate treatment we reviewed at the time. Moreover, a classification upheld for one purpose does not ipso facto justify a classification made for another purpose. Compare Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974) (holding that a Florida statute giving widows, but not widowers, a $500 exemption from property taxation did not violate equal protection), with Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 100 S.Ct. 1540, 64 L.Ed.2d 107 (1980) (holding that a Missouri law denying a widower workers' compensation benefits for his wife's work-related death unless he was either mentally or physically
In Durham v. Peabody Coal Co., 272 S.W.3d 192, 194 (Ky.2008), coal workers argued that the consensus procedure of KRS 342.316 discriminated unlawfully between workers who are injured by a harmful occupational exposure to coal dust and those who become physically disabled by a traumatic injury. This Court then rejected their argument because "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 (emphasis added).
Although we rejected equal protection challenges in Holmes and Durham, we found an as-applied equal protection violation with respect to the KRS 342.316 consensus procedure in Cain, 302 S.W.3d 39. In that case, the claimant, seeking a RIB award, submitted a "B" reader's report that showed the existence of category 2/1 pneumoconiosis while his employer submitted evidence that he suffered only from category 1/1 disease; both submissions supported the claimant's entitlement to a RIB award. Id. at 43. Nonetheless, because the reports were not in consensus, KRS 342.316(3)(b) 4.e. required the claim
Here, KRS 342.316(3), along with the relevant subsections of KRS 342.315 and KRS 342.794, treat coal workers' pneumoconiosis claimants more stringently than all other pneumoconiosis claimants. However, even though the disease is given different names depending upon the source of dust, there is no "natural" or "real" distinction between coal workers' pneumoconiosis and other forms of pneumoconiosis.
As a result, we believe this case significantly differs from Durham and Holmes. Unlike Durham, different names do not justify differing treatment—all forms of pneumoconiosis (whatever type) develop gradually and can be difficult to diagnose. Furthermore, unlike Holmes, we discern no rational basis or substantial and justifiable reason for the singular two-step "consensus procedure" or the "clear and convincing" evidentiary standard, as it is simply counterintuitive to prescribe differing standard of proof requirements for the same disease. Nor can the disparate treatment of coal workers be justified as a cost-saving measure, as 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. Finally, 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.
Rather than rely upon Durham and Holmes, we liken this case to those circumstances in which this Court or the United States Supreme Court identified an equal protection violation. Again, whether caused by coal, rock, asbestos, or brick dust, "pneumoconiosis is pneumoconiosis is pneumoconiosis." Holmes, 872 S.W.2d 446, 456 (Ky.1994) (Stephens, C.J., dissenting) (quotation marks omitted). Therefore, we follow our nation's highest court's decisions in Allegheny and City of Cleburne and refuse to countenance an arbitrary classification, i.e. prescribing differing standard of proof requirements for the same disease.
Moreover, we believe any venal element to an initial doctors' medical diagnosis
Because we consider the classification of coal workers' pneumoconiosis claimants to be arbitrary in regard to the more stringent proof or procedures required and believe that the disparate treatment afforded such workers lacks a rational basis or substantial justification, we hold that the consensus procedure and the clear and convincing evidentiary standard are unconstitutional.
We pause, though, to address the contention that the preferential treatment afforded coal workers pursuant to KRS 342.732 justifies the more stringent procedural and evidentiary requirements of KRS 342.316.
Having 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.
For the foregoing reasons, the decisions of the Court of Appeals in these cases are affirmed.
CUNNINGHAM, NOBLE, and VENTERS, JJ., concur. SCHRODER, J., concurs in part and dissents in part by separate opinion. MINTON, C.J., dissents by separate opinion in which ABRAMSON, J., joins.
SCHRODER, J., concurring in part and dissenting in part:
I agree that requiring only individuals who acquired pneumoconiosis from coal mine employment to satisfy a "consensus" requirement, and a higher evidentiary burden of proof to rebut said "consensus" in order to receive workers' compensation benefits, unconstitutionally discriminates against similarly situated people and denies equal justice under the law.
However, I disagree with the assessment that the violation is a result of the application of higher burdens of proof and the consensus requirement under KRS 342.316(3) and 342.316(13). Rather, the violation occurs as a result of the language of KRS 342.316(3)(b)4.b., which provides
That being said, the legislature can and often does provide additional benefits or incentives to discrete classes of people. In its wisdom, it has decided to offer retraining benefits and has eliminated the need to prove impairment in claims where there is objective radiographic evidence of the disease. The increased evidentiary standards and the requirement of a consensus reading in certain cases do not, in that case, run afoul of constitutional equal protection.
For example, under the implementing regulations of the federal Black Lung Benefits Act, 30 U.S.C. § 801 et seq., there exists an irrebuttable presumption of disability or death due to pneumoconiosis in light of certain radiographic evidence of the disease. However, in order to be entitled to this presumption, there are more strict standards that must be met in terms of radiographic evidence. 20 CFR §§ 718.102, 718.304. Coal miners without radiographic evidence of the disease are excluded from the presumption; however, they are not automatically excluded from benefits, as they can still pursue their claim using other medical evidence to establish total disability due to pneumoconiosis.
The stated purpose for the classification of "cost savings" does in fact bear a rational relationship to a legitimate state interest with respect to requirements under KRS 342.316(3) and 342.316(13). These provisions are designed to limit the additional retraining benefit, or benefits in lieu of retraining, to individuals with radiographic evidence of the disease, without requiring them to prove a permanent impairment rating.
In contrast, although requiring a consensus of a panel of B Readers when the initial x-ray evidence conflicts and higher burdens of proof may effectively help control the costs associated with workers' compensation benefits, for the reasons identified by the majority, there is no rational relationship for singling out individuals who acquired pneumoconiosis from coal mine employment versus individuals who have acquired pneumoconiosis from any other means, with respect to pursuing their claim under KRS 342.316(3)(b)4.b.
To conclude, it is the provision of KRS 342.316(3)(b)4.b. that excludes individuals pursuing workers' compensation as a result of a pulmonary impairment related to coal mine exposure that violates equal protection. Nevertheless, the legislature could constitutionally provide additional presumptions and benefits to those with radiographic evidence of the disease, and require additional evidence and burdens of proof in order to secure such additional benefits. It just could not, constitutionally, exclude these individuals from pursuing their claim under KRS 342.316(3)(b)4.b., like every other similarly situated citizen, when the radiographic evidence is otherwise insufficient to meet the more stringent requirements under KRS 342.316(3) and 342.316(13).
MINTON, C.J., dissenting:
Under the rational basis review, this Court should not overturn legislative action on Equal Protection grounds "unless the varying treatment of different groups or persons is so unrelated to the achievement
I would find that the consensus procedure and the clear and convincing burden of proof are both rationally related to the legitimate government objectives of obtaining unbiased medical diagnoses and prompt and efficient processing of occupational disease claims. Equal Protection law does not require a classification between coal-related pneumoconiosis claims and claims of pneumoconiosis from other dust sources to be based on science. Moreover, the special benefits awarded to coal workers with pneumoconiosis further justify applying different procedures and standards to coal-related pneumoconiosis claims.
Rather than enacting Kentucky Revised Statutes (KRS) 342.316(3) and (13) out of a desire to harm coal workers, as the majority opinion unfairly suggests, every expression by members of the 2002 session of the General Assembly supports the conclusion that the legislature intended the amendments to Chapter 342 to benefit coal workers by allowing coal miners with pneumoconiosis to receive more benefits in an efficient manner. Whether or not the amendments succeeded in achieving these goals is not the Court's concern under proper Equal Protection analysis. The deciding factor is that the legislature could have rationally believed the consensus procedure and the clear and convincing rebuttal standard would ensure unbiased, prompt, and efficient processing of coal-related pneumoconiosis claims. So I would uphold KRS 342.316(3) and (13).
"The 14th Amendment to the United States Constitution requires persons who are similarly situated to be treated alike."
Review of the legislative history surrounding the 2002 amendments of KRS Chapter 342 reveals at least two legitimate governmental objectives behind the consensus procedure and the clear and convincing rebuttal standard.
As demonstrated by the disparity in the parties' evidence in this case, "B" readers hired by the parties to provide medical opinions in coal-related pneumoconiosis claims often differ greatly concerning the presence or severity of the disease. The adoption of the consensus process and enactment of KRS 342.792 imply a conclusion by the 2002 General Assembly that opinions from a panel of three physicians who are also "B" readers, but who are hired by the commissioner, would be unbiased. For this reason, they would provide a more accurate and persuasive assessment of the worker's actual condition than the parties' experts. And the consensus of such a panel would be more persuasive than the opinion of a single university evaluator.
Legislative history reveals the 2002 General Assembly's concern with preventing "doctor shopping" and the need to obtain unbiased medical opinions. One Senator took the Senate floor to speak in support of the bill, stating the amendments ensure "the integrity of the process by focusing on obtaining the best and most unbiased x-ray assessment we can get from the `B' reader consensus process." Coal industry representatives and union representatives
The majority asserts the consensus process and the clear and convincing evidentiary burden cannot "be justified as [] cost-saving measure[s], as 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." It is a poor argument to say the consensus procedure is not rationally related to promoting unbiased medical diagnoses or prompt and efficient processing of coal-related pneumoconiosis claims simply because the procedure would also advance those goals if applied to all pneumoconiosis claims. The majority's analysis is flawed here for two reasons.
First, there is a heightened need for accuracy and efficiency for coal-related pneumoconiosis claims because of the sheer number of coal-related pneumoconiosis claims and the special benefits available to the claimants. KRS 342.732 provides different benefits for employees suffering from coal-related pneumoconiosis than employees suffering from other types of pneumoconiosis enjoy, some of which require no proof of a permanent impairment rating. KRS 342.732(1)(a) entitles those who suffer from category 1 coal workers' pneumoconiosis to a "retraining incentive
In contrast, KRS 342.730(1) bases the entitlement to partial disability benefits for other forms of pneumoconiosis on the permanent impairment rating the condition produces, a corresponding statutory factor, and various multipliers. It bases a finding of permanent total disability on proof of a permanent impairment rating and a permanent and complete inability to work.
Second, the legislature need not tackle all problems in the workers' compensation system at once. It is unprecedented and unfair for this Court to quibble that because the consensus procedure and the clear and convincing standard for rebuttal would be equally effective in promoting efficiency and accuracy across the board, the legislature must use the procedure for all pneumoconiosis claims or not at all.
The 2002 General Assembly impliedly viewed the problems with coal-related pneumoconiosis claims as the Commonwealth's most pressing occupational disease issue at that time. This can be logically attributed to the fact that nearly half (42 percent) of all occupational disease claims filed in fiscal year 2000-2001 were based on coal-related pneumoconiosis.
Contrary to the majority opinion, less than three years ago a majority of this Court held in Durham v. Peabody Coal Co.
All workers seeking benefits under Chapter 342 bear the burden of proof and risk of non-persuasion.
Even viewing the clear and convincing rebuttal standard as more burdensome, it is rationally related to the legitimate government interest in accurate findings of coal-related pneumoconiosis. Like KRS 342.315(2), applicable to non-coal-related pneumoconiosis claims, KRS 342.316(13) creates a rebuttable presumption that the opinions of certain highly-skilled and unbiased medical experts are accurate concerning the existence and severity of an occupational disease. Unlike KRS 345.315(2), KRS 342.316(13) bases the presumption on the fact that a consensus panel consists of three physicians who are "B" readers, licensed in Kentucky, and hired by the commissioner and the fact that at least two panel members reach a consensus.
The legislature could have rationally believed the consensus of such experts would provide an accurate and unbiased assessment of the worker's condition that would assist the ALJ in weighing the conflicting evidence. And it is reasonable to presume that a consensus x-ray interpretation reflects the worker's condition accurately and is probably more accurate than a conflicting interpretation performed by a "B" reader hired by a party. In other words, a panel consensus is highly persuasive evidence that may only be rebutted by even more persuasive evidence.
The majority bases its opinion largely on the fact that coal-related pneumoconiosis is scientifically identical to pneumoconiosis from other dust sources. In stating that "there is no `natural' or `real' distinction between coal workers' pneumoconiosis and other forms of pneumoconiosis," the majority employs the wrong constitutional test and relies on the dissenting opinion in Kentucky Harlan Coal Co. v. Holmes.
In Holmes, a coal company challenged the constitutionality of a statute in effect before the 1996 overhaul of workers' compensation, providing income benefits for coal-related pneumoconiosis based on x-ray evidence and creating an irrebuttable presumption that a claimant is totally disabled based on x-ray classifications.
And contrary to the majority's current finding, the Holmes court held that "distinctive and natural reasons [exist] for classifying [coal workers who have contracted pneumoconiosis] from workers in other industries who have also contracted pneumoconiosis."
Similar reasons uphold the current workers' compensation scheme against the Equal Protection claims here. The sheer number of coal-related pneumoconiosis claims necessitates an efficient and prompt processing method. And the mere fact that "pneumoconiosis is pneumoconiosis is pneumoconiosis" does not prohibit the legislature from tailoring its actions to address the differing needs of the Commonwealth's claimants, industries, and the workers' compensation structure itself. By holding otherwise, the majority overrules yet another decision of this Court.
The legislature can require the consensus procedure and the clear and convincing rebuttal standard for coal-related pneumoconiosis claims because coal workers receive special benefits. As discussed above, coal workers with pneumoconiosis receive special retraining benefits without proving permanent impairment. In contrast, employees with other forms of pneumoconiosis may not receive retraining benefits and must prove impairment to receive income benefits.
The Holmes court addressed a similar argument from the coal company that a presumption of occupational disability unconstitutionally benefited coal workers, unlike employees in other industries. The court found,
Likewise, the differing statutory treatment of coal-related pneumoconiosis claims and other pneumoconiosis claims does not render the statutes arbitrary or unfair, or deny coal workers Equal Protection. Because coal workers with pneumoconiosis receive special retraining benefits without proving permanent impairment, the legislature is entitled to require different medical procedures and more stringent standards of proof. When the benefits, for a class of workers differ from other classes, the burdens may also differ. The majority's contrary reasoning again overrules our holding in Holmes.
Other courts have also found that entitlement to special benefits defeats Equal Protection claims. The Federal Circuit Court of Appeals held that because one group received special benefits they were not similarly situated to other groups, rendering the Equal Protection guarantee inapplicable.
The majority erroneously supports its decision with City of Cleburne, Texas v. Cleburne Living Center.
Cleburne spurred a debate about whether a more stringent rational basis review applied to classifications of politically unpopular groups.
In sharp contrast, Kentucky coal workers have enjoyed enormous political support in the General Assembly. It is clear from legislative history that the 2002 General Assembly intended the amendments to Chapter 342 to benefit coal miners rather than harm them. The legislators who spoke on the subject during the 2002 session maintained that the 1996 overhaul of
The majority erroneously "reject[s] 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." Whether or not the 2002 amendments achieved the legislature's objectives is not for the courts to decide. Arguably, the consensus procedure and the clear and convincing evidentiary burden have made it more difficult, or as difficult, for coal workers to prove they suffer from pneumoconiosis than before the 2002 amendments. But this does not authorize the judicial branch to usurp the policy-making role of the elected legislators under the guise of Equal Protection analysis. "[I]t is up to legislatures, not courts, to decide on the wisdom and utility of legislation."
For similar reasons, I cannot agree with Justice Schroder's opinion concurring, in part, and dissenting, in part. The legislature is constitutionally permitted to require a different procedure and standard of proof for coal-related pneumoconiosis claims. A requirement from this Court that coal workers be allowed to pursue both statutory paths to workers' compensation benefits is a policy choice that impinges upon the legislative prerogative. And rather than providing Equal Protection under the law, allowing both statutory paths to coal workers would give coal workers greater than Equal Protection under the law.
The majority's opinion runs contrary to well-established precedent and overturns this Court's recent decisions in Durham and Holmes. Because the legislature could have rationally believed the consensus
ABRAMSON, J., joins.
KRS 342.794(1) provides for a list of qualified "B" readers who interpret chest X-rays when the parties' reports are not in consensus. Bartrum, 168 S.W.3d at 384-385.
272 S.W.3d at 196 (emphasis added). This viewpoint, however, would require us to ascribe an unreasonable meaning to language and ignores our decision in Fox, which specifically rejected an argument that a university evaluator's findings could only be overcome by introducing "clear and convincing" evidence. 19 S.W.3d at 95. In fact, in discussing Fox, this Court stated that "KRS 342.316(13) ... adopts the more stringent 'clear and convincing evidence' standard for rebuttal" compared to KRS 342.315(2). Bartrum, 168 S.W.3d at 385. Moreover, Durham ignored the improbability of "clearly and convincingly" rebutting "consensus experts," all of whom are physicians, with just another contradictory X-ray and another medical expert—that is other than a pathologist with actual slides if the claimant is then deceased.
(Emphasis added).
Wells v. Hamilton, 645 S.W.2d 353, 355 (Ky. App.1983) (setting forth an earlier version of KRS 342.316(5)); see also Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 27-29, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976) (upholding a federal statute providing that "a coal miner with 10 years' employment in the mines who suffers from pneumoconiosis will be presumed to have contracted the disease from his employment" since there was a strong rational connection between proving long exposure to mine work and respiratory ailments, and developing pneumoconiosis."). As illustrated by the claims addressed, the length of exposure, is now insufficient to rebut a "consensus."
Id. at 455-456, 105 S.Ct. 3249 (emphasis added).
Id. at 452 (emphasis added).
KRS 342.316(11). Although the foregoing statute provides for different payment sources depending on the etiology of the disease, this is insufficient to establish a rational basis for imposing additional burdens based solely on the source of the claimant's disease, rather than on the presence of the disease, and we can find no other reason for the disparity.
Id. at 1026-1027.
In so doing, the court confused causation with correlation. Specifically, disabled military retirees presumably receive special benefits because they are a distinct class, but they are not a distinct class because they receive special benefits. To hold otherwise would allow legislative bodies to obviate the guarantee of Equal Protection by conferring nominal benefits to justify disparate treatment and thereby ignore the United States Supreme Court's exhortation that arbitrary selection "`can never be justified by calling it classification.'" McLaughlin, 379 U.S. at 190, 85 S.Ct. 283 (citation omitted).
The matter before us today illustrates such a concern. Again, only 11 coal workers received a RIB in 2003, 23 received a RIB in 2004, 2 in 2005, 26 in 2006, 9 in 2007, 5 in 2008, 4 in 2009, and none in 2010, even though Chief Justice Minton's dissent acknowledges that there were at least 3,279 coal workers' pneumoconiosis claims from 2001-2010. See supra note 12. Simply put, such a miniscule "benefit" cannot justify foreclosing coal workers' pneumoconiosis claimants from being subjected to the same procedure and rebuttable standard as other pneumoconiosis claimants.
