Kentucky’s Special Hearing Loss Threshold is Constitutional
Ky. Rev. Stat. § 342.7305, pursuant to which workers’ compensation claimants suffering hearing loss may not be awarded income benefits unless their whole person impairment rating (“WPI”)—as determined by converting their binaural impairment under AMA Guides—is at least 8%, does not violate the equal protection guarantees in the 14th Amendment to the U.S. Constitution nor relevant sections of the Kentucky Constitution, held a divided Supreme Court of Kentucky [Teco/Perry County Coal v. Feltner, 2019 Ky. LEXIS 210 (June 13, 2019)]. That other types of non-hearing loss traumatic injury claimants need not meet that same threshold impairment rating to qualify for income benefits is not problematic, held the majority of the Court, as there is a rational basis for treating hearing loss claimants differently from other types of traumatic injury claimants. With its decision, the high court reversed and vacated an earlier decision of the state’s Court of Appeals.
Background
Claimants each separately sought workers’ compensation benefits based on occupational hearing loss. Each was assigned a WPI less than eight percent. In each case, the ALJ awarded medical benefits, but excluded PPD income benefits because the ALJ lacked authority to adjudicate constitutional challenges. The Board affirmed the ALJ’s decision and held that it also lacked authority to address the constitutional question.
The Court of Appeals consolidated the three claims to address the constitutionality of Ky. Rev. Stat. § 342.7305(2). Holding that Vision Mining Inc. v. Gardner, 364 S.W.3d 455 (Ky. 2011) was dispositive, the Court of Appeals determined that § 342.7305(2) violated equal protection guarantees and was thus unconstitutional. This appeal followed.
AMA Guides: Hearing Loss Involves No Correction for Age
The employers argued that Section 11.2a of the AMA Guides contained the rational basis for upholding the eight percent impairment threshold for PPD income benefits. Under the Guides, no correction should be made for presbycusis—the loss of the ability to perceive or discriminate sounds that occurs with age. The Guides instruct the physician to not subtract for age-related hearing loss when assigning a rating. Without the use of a threshold number, the Guides contain no reference as to how KRS 342.0011(1) or KRS 342.730(1)(b)-(c), would exclude pre-existing and age-related hearing loss.
Supreme Court’s Majority Decision
The majority of the Supreme Court indicated that without a threshold number, every potential employee would have to undergo baseline hearing tests at various ages throughout their life to determine the true extent of their age-related vs. occupational hearing loss. The more logical conclusion, said the majority, is that the eight percent threshold recognizes the differences in assigning an impairment rating to hearing-loss claimants under the Guides, as compared to assigning a rating to other traumatic injuries.
Eight Percent Threshold Assures
That majority noted that some states, e.g., South Dakota, use deductions based on age to set off potential age-related hearing loss from claims. The majority added that KRS 342.7305 instead followed the AMA Guides’ approach for not subtracting age-related hearing loss from an impairment rating and thus, the statute set a threshold of eight percent. The majority indicated that although this might not be a perfect solution, it adhered to the principle that workers’ compensation claimants receive PPD income benefits when their injury was work-related.
The majority concluded that an eight percent threshold all but guaranteed that hearing-loss claimants who meet the threshold had work-related, not just age-related, hearing loss. Based on that rationale, the majority held that a rational basis existed for the eight percent impairment threshold for PPD income benefits in KRS 342.7305(2). Accordingly, the majority of the Court vacated the Court of Appeals opinion holding that KRS 342.7305(2) was unconstitutional and affirmed the respective AL’s determinations that the claimants did not qualify for PPD income benefits based on their impairment ratings.