Yocom v. Gantley ( 1978 )

PARK, Judge,

concurring in part and dissenting in part.

I concur in that portion of the opinion of the majority holding that there was substantial evidence in the record to support the board’s finding that Gantley had suffered a 5% occupational disability to the body as a whole as a result of the work related injury. Gantley’s injured leg was still causing him difficulty and pain. He testified that his injured leg tires more quickly than previously and that he can no longer do a lot of walking. This court cannot disturb the board’s finding. However, I believe that there is merit in the argument that the provisions of KRS 342.-740(1) relating to the minimum weekly income benefits are unconstitutional when applied to the facts of this case.

Gantley’s average weekly wage at the time of his injury was $97.89. Gantley has since been able to obtain new employment at $135.00 per week. Consequently, the board’s award is based upon a finding of probable future loss of wages. The board has, in effect, predicted that Gantley will have an average weekly wage loss of $4.89 ($97.89 X 5%). Even though the board has found that Gantley’s earning capacity has been diminished by only $4.89 per week, the board has awarded Gantley benefits of $29.00 per week. This sum represents 20% of the state average weekly wage which constitutes the minimum weekly income benefit provided by KRS 343.740(1). See Apache Coal Co. v. Fuller, Ky., 541 S.W.2d 933 (1976). Another employee with the same average weekly wage and no dependents, but with a 54% disability, would have received the same benefits as awarded Gantley ($97.89 X 55% X 54%). Gantley not only received the same weekly benefits as an employee whose disability was ten times greater, but Gantley also received $24.11 per week more than his projected weekly loss of earning power. I can find no rational basis for awarding Gantley any sum in excess of his average weekly wage multiplied by the percentage of disability determined by the board. The board’s award of $29.00 per week to Gantley includes, in effect, a weekly gift of $24.11 which is completely unrelated to the injury suffered by him. To the extent that Gant-ley’s employer and the Special Fund are compelled to make* such a weekly gift to Gantley, KRS 342.740(1) is arbitrary and in violation of section 2 of the Kentucky Constitution. See Burns v. Shephard, Ky., 264 S.W.2d 685 (1953), and Illinois Central Railroad Co. v. Commonwealth, 305 Ky. 632, 204 S.W.2d 973 (1947).

I would reverse the judgment of the circuit court. The case should be remanded to the board with directions to limit the liability of the employer and the Special Fund to $2.45 per week each ($97.89 X 2½%). In computing the minimum weekly income benefits payable under KRS 342.740(1), the factor provided by KRS 342.730(l)(b) need not first be applied to average weekly earnings.