RENDERED: APRIL 27, 2017

,,Supmut ~Inutf of~~~[ 2014-SC-000526-WC . ·

[Q)IA 1fEu/~b1 K,~ 14,;...,.,,.1, Q:_ MARSHALL PARKER APPELLANT ·

ON APPEAL FROM COURT OF APPEALS CASE NO. 2013-CA-001978-WC v. WORKERS' COMPENSATION BOARD NO. 09-WC-99663

WEBSTER COUNTY COAL, LLC (DOTIKI APPELLEES MINE); HON. STEVEN G. BOLTON, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD

AND 20 l 4-SC-000536-WC

WEBSTER COUNTY COAL, LLC (DOTIKI MINE) APPELLANT

ON APPEAL FROM COURT OF APPEALS · CASE NO. 2013-CA-001968·-wc v. WORKERS' COMPENSATION BOARD NO. 09-WC-99663

MARSHALL PARKER; APPELLE ES MULTICARE MADISONVILLE; DR. RICHARD HOLZKNECHT; COOP HEALTH SERVICES; DEACONESS HOSPITAL; DAVID D. EGGERS, M.D.; NEUROSURGICAt CONSULTANTS; JAMES M. DONLEY, M.D.; CENTER FOR ORTHOPEDI~S; WAYNE C. COLE, D.O.; KELLY L. COLE, D.O.; HON. STEVEN G. BOLTON, ADMINISTRATIVE LAW·JUDGE; AND WORKERS' COMPENSATION BOARD

OPINION OF THE COURT BY JUSTICE KELLER.

AFFIRMING IN PART AND REVERSING AND REMANDING IN PART

In separate appeals, Marshall Parker challenges the constitutionality of Kentucky Revised Statute (KRS) 342. 730(4) and Webster County Coal (Webster County) challenges the Administrative Law _Judge's (ALJ) award ofbenefits to Parker for a back injury. The Board affirmed the ALJ's award of benefits but, because it lacks the jurisdiction to do so, the Board did not address Parker's constitutional claim.I The Court of Appeals affirmed the Board and found that KRS 342.730(4) . is ' constitutional. For the following . reasons, we affirm the Court of Appeals regarding Parker's entitlement to benefits. However, we reverse that Court's holding that KRS 342.730(4) is constitutional and remand this matter to the ALJ for an award consistent with this opinion.

I. BACKGROUND. . . .

Parker was born on October 5, 1939, and he began working as an underground coal miner for Webster County in 1974. On September 8, 2008, · Parker· slipped while trying to climb over a conveyor'belt. He testified that he felt pain in his right knee, righthip, and low back after this incident. De~pite his injuries, Parker continued to work for approximateiy.three months. Parker eventually uriderwent right knee surgery in December 2008 and lumbar spine

I The Board noted in its opinion thaf Webster County filed a number of medtcal fee disputes while the appeal was pending-and that the AW had issued an order joining additional parties after the notice of appeal had been filed. Because the AW lost jurisdiction once.the notice of appeal was filed, the Board vacated his order. Furthermore, the Board remanded the medical fee disputes for a determination on the merits artd ori the necessity of joining additional parties .. Neither party has contested this portion of the Board's opinion; therefore, we do not address it.

surgery in June· 2011. Following treatment, Parker has continued to have back pain, and he has·difficulty walking and climbing stairs. He has not returned to· any type. of work.

Webster County accepted liabilio/ for Parker's right knee injury and has ' \ paid all medical benefits associated with that injury. Because Webster County is not contesting Parker's knee injury claim, we do not set forth the medical evidence regarding that claim. However, Webster County did contest Parker's back injury ~laim b8;sed on medical records containi1:1g pre-injury complaints of low back pain and diagnostic testing that showed sigi:ificant degenerative · changes. Therefore, we summarize the medical evidence related to that claim below.

In support of his back injury claim, Parker filed medical records and a report from his spine surgeon, Dr: David Eggers. Iri his May 20, 2009 office note, Dr. Eggers stated that Parker had suffered from "intractable low back and right radicular leg pain" since an injury in September 2008. In his Form 107 Medical Report- Injury/Hearing Loss/Psychological Condition, Dr. Eggers stated that Parker suffered from displacement of a lumbar disc, spinal stenosis, and acquired spondylolisthesi~. Dr. Eggers related these conditions to Parker's injury; however, he did not specify the date of the injury. Furthermore, although he had been asked to do so, Dr. Eggers would not give an opinion regarding what permanent impairment or restrictions Parker has.

· Webster County filed records from Tri-State Orthopedic Surgeons and Dr. James Donley. The Tri-State records.showe.d, in pertinent part, that Parker complained of and sought treatment for low back and leg pain in September 2003, March 2005, and May 2006. It appears from the records that Parker received at least one epidural steroid injection in late 2005 and one epidural steroid injection in May 2006. Furthermore, Parker's 2003 lumbar MRI revealed multi-level degenerative changes with mild to moderate stenosis. Dr. Donley's records reveal, in pertinent part, that Parker complained of ach.es and pains/strains but had not received any treatment for back pain in the two years befor~ the work injury.

Webster County also filed reports from Dr. Russell Travis, Dr. Bart Goldman, and Dr. William Gavigan. Dr. Travis, in his October 9, 2009 report, stated that Parker suffered from right L4 radiculopathy secondary to I

degenerative spondylolisthesis with a bulging disc at L4-5 and significant ·degenerative changes throughout the iumbar spine. Dr. Travis concluded that, despite Parker's significant pre-existing lurribar degenerative changes, .the surgery then being recommended by Dr. Eggers was work-related . .In reaching that conclusion, Dr. Travis stated that he had seen "no records that indicate Mr. Parker had significant low back pain and no right lower extremity pain prior to this." In a November.20, 2009 addendum to his October report, Dr. Travis stated that, upon review of an office note from one of Parker's physicians dated September 28, 2009, Parker's ."current problem is not related directly to the injury of 9 /2.8/2008, but is clearly a question of pre-"existing severe degenerative changes with neural impingement and previous symptomatic problems with his low back." We note that Dr. Travis had reviewed and summarized the September 28, 2008 office note in his October 2009 report.

Dr. Goldman stated that Parker suffered fro:r;n degenerative retrolisthesis at L3-4 which pre-existed the September 8, 2008 work-injury. Accordingto Dr. Goldman, the surgery performed by Dr. Eggers was to alleviate an active pre- existing condition, not because of Parker's work injury. ' . D:u.· Gavigan made diagnoses of severe degenerative-disc disease that actively pre-existed the work injury. He opined that ali of Parker's back treatment was related to that pre-existing active condition and not to the work · injury. Finally, Dr. Gavigan, who imposed no restrictions, assigned Parker a 22% impairment rating; all of which he attributed to the pre-existing active condition.

Based on the preceding evidence, the AW found that Parker suffered a lower back injury on September 8, 2008 and that none of Parker's back-related impairment was the result of a pre-existing active "disability /impairment of the . . back under the holding in Finley (supra)."2 The AW also determined that ' Parker is not totally disabled and awarded income benefits based on Parker's 4% kne·e impairment and his 22% lumbar spine impairment for a combined permanent impairment rating of 26%. However, because Parker had already · received two years of temporary total disability income benefits, the AW found that Webster County did riot have liability for payment of any additional income benefits pursuan_t to KRS 342.730(4). The Board and the Court of Appeals affirmed. , As· noted above, both Webster County and Parker have appealed from the Court of.Appeals's opinion. Webster County argues that the evidence did not support the AW's award of benefits related to Parker's low back condition.

Parker appeals the AW's termination of income benefits pursuant to KRS

342.730(4). We set forth additional necessary background information below.

II. STANDARD OF REVIEW~

The AW has the sole discretion to determine the quality, character, and substance of the evidence and may reject any testimony and believe or . . disbelieve various parts ·of the evidence regardless of whether it comes from the

same witness or the same party's total proof. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky._ 1985). Parker had the burden of proving ' . that his back condition is related to the work injury. Gibbs v. Premier Scale.

Company/Indiana . Scale Co., 50 S.W.3d 754, 763 (Ky. 2001), as modified on .

denial of reh'g (Aug. 23, 2001). Because he was successful before the AW, the question for us on appeal is whether the AW's finding of work relatedness is supported by substantial evidence. Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999). "Substantial evidence has been defined as some evidence of substance and relevant c.onsequence, having the fitness to induce conviction in the minds of reasonable men." Id. at481-82. Thus, the determinative question.to be answered on review is whether the AW's finding that Parker's back condition is related to the work injury "is so unreasonable under the .

evidence that it must be viewed as erroneous ·as a matter of law." KRS 342.285; Ira A. Watson Dept. Store v. Hamilton,. 34 S.W.3d 48, 52 (Ky. 2000).

While we give great deference to the AW's factual findings, questions of law, i.e., whether KRS 342.370(4) is constitutional, we review de novo. See U.S.. Bank Home Mortgage v. Schrecker, 455 S.W.3d 382, 384 (Ky. 2014). With the preceding standards in mind~ we first address Webster County's argument that the AW's finding that Parker suffered a work-related back injury is not \ supported by the evidence. We then address Parker's argument that KRS 342. 730(4) is unconstitutional.

III. ANALYSIS.

A. Whether Parker suffered a work-related back injury.

Webster County argues that there was not sufficient evidence to support a finding that Parker suffered a work-related back injury. It notes that Drs. Gavigan, Travis, and Goldman all opined that P_arker's·back condition actively pre-existed his September 2008 injury. It also notes th~t, although Dr. Eggers referred to an ipjury as being the cause of Parker's back condition in his Form 107, he did not specify which· injury. Finally, Webster County notes th~t Parker's medical records and his testimony indicate that he had complaints of low back pain for several years preceding the September 2008 injury.

While Dr. Eggers's Form 107 may have been deficient regarding causation, he related Parker's back condition to the work injury in his initial office note. Furthermore, Dr. T~avis's two reports are arguably inconsistent. Initially, Dr. Travis, who listed and summarized the medical records he reviewed, opined that Parker's back .condition was related to the work injury. In his· second report,. Dr. Travis listed and summarized those same medical records as supporting his opinion that Parker's back condition· actively pre- existed the work injury. The AW was free to consider all of Dr. Eggers's \ records and to believe_ Dr. Travis's initial report and to disbelieve his ~econd report. That evidence was substantive and sufficient to suppo:r:t the AW.'s finding of work-relatedness.

Furthermore, although Parker did complain of and receive treatment for low back pain prior to the work injury, he made no such complairits nor received any such treatment in the two years preceding the September 2008 work injury. In fact, Parker worked an average of 70 hours per week in that two-year period, and Webster County produced no evidence that any physician had assigned Parker an impairment rating or imposed permanent restrictions on Parker's work activities as a result of his pre-injury complaints of back pain. As stated in Finley v. DBM Techs., 217 S.W.. 3d 261, 265 (Ky. App. 2007):

a pre-existing condition that is both asymptomatic and produces no impairment prior to the work-related injury constitutes a pre- existing dormant condition. When a pre-existing dormant condition is aroused into disabling reality by a work-related injury, any impairment or medical expense related solely to the pre-existing condition is compensable. A pre:-existing condition may be either temporarily or permanently aroused. If the.pre-existing condition completely reverts to its pre-injury dormant state, the arousal is ··considered temporary. If the pre-existing condition does not completely revert to its pre-injury dormant state, the arousal is considered permanent, rather than temporary.

The AW's fi~ding that Parker's back condition did not actively pre-exist the work injury but is related to that injury is supported by both the evidence and the law. We cannot say the AW's finding was erroneous as a matter of law, and we therefore affirm it. See Ira _A. U(atson Dept. Store, 34 S.W.3d at48.

B. Whether KRS 342. 730.(4) is constitutional.

KRS 342.730(4) states in pertinent part that:

All income benefits payable pursuant to this chapter shall terminate as of the date upon which the employee qualifies for normal old-age Social Security retirement benefits under the United States Social Security Act, 42 U.S.C. secs. 301 to 1397f, or two (2) years after the employee's injury or lasf exposure, whichever last occurs.

At the time of his injury, Parker was 68 years of age and qualified for "normal old-age Social Security retirement benefits.". Under KRS 342. 730(4), the AW found that Parker, who had received two years of temporary total disability benefits, was not entitled to any additional income benefits related to his permanent disability. Parker argues that KRS 342.730(4) unconstitutionally infringes on his right to due process, abrogates his jural rights, a,nd violates the Equal Pro.tection Clauses of the _United States and Kentucky Constitutions. Webster County argues that, based on thi~ Court's prec.edent, Parker's argument is without merit.

At the outset, we note that this Court previously ~etermined that KRS 342.730(4) as it presently exists is constitutional.^[3] See McDowell v. Jackson Energy RECC, 84 S.W:3d 71 (Ky. 2002); and Keith v. Hopple Plastics, 178 S.W.3d 463 (Ky. 2005), as corrected (Dec. 13, 2005). We also are cognizant of the strong presumption of constitutionality afforded to legislative acts. Id. at 468. However, having reviewed our prior opinions, we now determine that they were incorrectly decided regarding the issue of equal protection. In doing. so, we are:

as always, .mindful of the value of prece.dent and the doctrine of stare decisis. The doctrine of stare decisis "is the means by which we ensure that the law will not merely change erratically, but will develop in a.principled and intelligible fashion." Changing the "ebb and flow of settled law'' is not something we take lightly, and we do so only after careful consideration. While stare decisis "permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals," it does not necessitate that this Court "unquestioningly follow prior decisions" when we are otherwise compelled. This Court is not assigned the duty of maintaining the watch as the law ossifies. Osborne v. Keeney, 399 S.W.3d 1, 16-17 (Ky. 2012) (footnotes omitted).

The dissent questions our decision to re-visit McDowell, stating that the only change that has occurred, since that opinion is to the composition of this Court. We do not disagree that the composition of the Court has changed; . . however, we note that the Court was closely divided on this issue in McDowell; Furthermore, this Court determined in 2011 that there was no rational basis for applying a different evidentiary standard to employees who contracted coal workers' pneumoconiosis than that applied to workers who contracted non-coal workers' pneumoconiosis. See Vision Mining, Inc. v. Gardner, 364 S.W.3d 455 ·(Ky. 2011). This Court did-so de.spite previously holdingthat a rational basis existed for treating those two groups differently. See Kentucky Harlan Coal Co. v. Holmes, 872 S.W.2d 446 (Ky. 1994). 4

It is undisputed that, because of KRS 342.730(4), injured older workers are treated differently from their younger coU:nterp~rts. When a statuto:ry provision results in disparate treatment, we look to the 14th Amendment of the United States Constitution and to Sections 1, 2, and 3 of the Kentucky Constitution. The goal of those constitutional provisions "is to 'keep[] governmental decision makers from treating differently persons who are in all relevant respects alikem while recognizing that "nearly all legislation differentiates in so~e manner between different classes of persons." Vision Mining, 364 S.W.3d at 465 (citation and footnote omitted). In order to maintain the necessary balance between the goals of the constitutional provisions and legislative reality, the Courts apply different levels of scrutiny depending "on . . . the classification made in the statute and the interest affected 'by it." Id.

Currently, there are three levels of :i;-eview applicable to an equal protection challenge. Strict or intermediate scrutiny applies · whenever a statute makes a classification on the basis of a "suspect" or."quasi-suspect" class, respectively. Conversely, "if the statute merely affects social or economic.policy, it is subject" to a less searching form of judicial scrutiny, i.e. the "rational basis" test.

. . Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 465-66 (Ky. 201 l)(citations and footnotes omitted). "Workers' compensation statutes concern matters of social and economic policy. As a result, such a statute is· not subject to strict or [intermediate] scrutiny and therefore must be upheld if a 'rational 'basis' or 'substantial and justifiable reason' supports the classifications that it cre~.tes." Id. at 466 (citation omitted).s Proving 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. Id. at 468-69.

The focus of the parties (and of the majorities ,in our prior decisions) is on the perceived discrimination between injured older workers and injured younger workers. This focus is ·understandable because, under the statute, a worker who is injured more than 425 weeks (or 520 weeks under certain circumstances) before he or she reaches normal Social Security retirement age will receive all of the permanent partial disability income benefits to which he or she is entitled. ^[6] A worker who is injured less than 425 weeks before he or

s We note that, while federal case law may be instructive regarding issues of ·equal protection; we are not bound to follow federal equal protection analysis. As we noted in Elk Harri Coal Corp. v. Cheyenne Resources, Inc., 163 S:W.3d 408, 418 (Ky. 2005), "the Kentucky Constitution's equal protec:tion provisions ... are much more detailed and specific than the Equal Protection Clause of the United States Constitu~on." The analysis employed by our federal counter-parts.acts as a floor, below which we may not fall, not as a ceiling, above which we may n·ot rise. Id. In fact, "we have construed our Constitution as requiring a 'reasonable basis' or a 'substantial and justifiable reason' for discriminatory legislation in. areas of social and economic policy." Id. at 418-19. In this case however, the preceding distinction, while. important, is one without a difference because KRS 342.730(4) does not pass the less stringent rational basis test.

she reaches normal Social Security retirement age will not receive all of the permanent partial disability . income benefits to which . he or she is entitled. The rational bases for treating younger ahd older workers differently is: (1) it prevents duplication of benefits; and (2) it results in savings for the workers' compensation system. Undoubtedly, both of these .are rational bases for treating those who, based on .their age, have qualified for normal Social Security retirement benefits differently from those who, based on their age, have yet to do so.

However, the equal protection problem with KRS 342.730(4) is that it treats injured ·older workers who qualify for normal old-age Social Security retirement benefits differently than it treats injured older workers who do not qualify. As Justice Graves noted in his dissent in McDowell, "Kentucky teachers ... have a retirement program and do no~ participate in social ' security.". 84 S.W.3d at 79. Thus, a teacher who has not had any outside employment and who suffers a work-related injury will not be subject to the limitation in KRS 342.730(4) because that teacher will never qualify for Social Security retirement benefits. There is no rational basis for treating all other workers in the Commonwealth differently than· teachers. Both sets of workers · will qualify for retirement benefits and both have contributed, in part, to their "retirement plans:~ However, while teachers will receive all of the workers' compensation income benefits to which they are entitled, nearly every other worker in the Commonwealth will not. This disparate treatment does not accomplish the goals posited as the rational bases for KRS 342.730(4). The

. 13 statute does prevent duplication of benefits, but only for non-teachers because, ' ' pneumoconiosis differently from other workers suffering from pneumoconiosis. 364 S.W.3d at 473. In doing so, we rejected the employer's argument that the disparate treatment was justified because it resulted in monetary savings to the workers' compensation system. Id. at 472. ("The state would save more money by subjecting all occupational pneumoconiosis claimants to the more exacting procedure and higher rebuttable standard.")(emphasis in original). Furthermore, we noted that "[i]n considering·an equal protection challenge, a court does not engage in accounting of debits and credits; rather the court must examine whether similarly situated individuals have been treated differently ... and, if so, whether or not such treatment is rationally related to) a legitimate state interest.'; Jd.. at 474. Here, injured older workers who qualify for normal old-age Social Security retirement benefits.are treated differently than injured older workers who do not. There is no rational basis for treating these two groups of injured older workers differently.

The dissent states.that KRS 342.730(4) js constitutional, despite its disparate treatment of older workers, because the exclusion of teachers from. its benefit limitation is an example of acceptable "underinclusiveness." We agree with the dissent that a statutory scheme need not attack "every aspect of a problem" in ord~r to pass constitutional muster; however such a statute must be "free from invidious discrimination." Dandridge v. Williams, 397 ·u.s. 471 (1970).7 The problem with KRS 342.730(4) is not that it fails to attack

7In Dandridge, the plaintiffs, who had large families, challenged the Maryland. Dep.artment of Public Welfare maxi.mum cap on AFDC benefits. 397 U.S. at 474-75. The Court determined that the cap ·did not violate equal protection. Id. at 487 . . 15 every aspect of the "problem" of inJt:tredworkers collecting workers' compensation benefits and retirement benefits. The problem with KRS 342. 730(4) is that it invidiously discriminates against those who qualify for one type of retirement benefit (social security) from those who do not qualify for ·that type of retirement benefit but do qualify for another type of retirement benefit (teacher -retirement). B Based on the dissent's interpretation of underinclusiveness, this Court erred when it determined that it is unconstitutional to treat those who suffer from coal workers' pneumoconiosis differently from those who suffer _from non-coal workers' pneumoconiosis. We discern no reason to reconsider the wisdom of that decision.

Finally, although Parker did not argue it, KRS 342.730(4) violates the prohibition.against special legislation found in Section 59 of the Kentucky Constitution. "A special law i~ legislation whjclJ. 'arbitrarily or beyond reasonable justification discr;iminates against some persons or objects and favors others." Board of Ed. pf Jefferson County v. Board of Ed. of Louisville, 472 S.W.2d 496, 498 (Ky. 1971)'. As set forth.above, KRS 342.730(4) favors Dandridge differs from the case herein because the Maryland statute treated all AFDC recipients the same because all were subjectto the cap. Here, KRS 342.730(4) treats two different groups of elderly workers differently.

( In con~ucting this constitutional analys_is, I wholeheartedly follow the majority's general approach. The United States Supreme Court has consistently held that "age is not a suspect classification" for purposes of the Fourteenth Amendment. See Kimel v. Florida Board of Regents, 528 U.S. 62 (2000). "Age classifications, unlike governmental conduct based on race or gender, cannot be characterized as 'so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy."' Id. at 83. This standard echoes the one in place for equal-protection claims premised on soci~l or economic-class discrimination. In such instances, no suspect class exists, and "a statute will comply with the Fourteenth Amendment's right to equal protection if it furthers a legitimate state interest and there _is any conceivable rational basis for the classes it creates." Keith v. Hopple Plastics, 178 S.W.3d 463, 466 (Ky. 2005) .

. So there is no disagreement that the proper standard of review for equal- protection claims based on age or socioeconomic status is rational-basis review-.the weakest tier of constitutional scrutiny on appeal.. That is, so long ' as a statute is rationally related to a legitimate government interest, an examining court will not hold the act unconstitutional. See Heller v. Doe, 509 U.S. 312 (1993); Keith, 178 S.W.3d at 463. Legislative acts are as such presumed valid and the burden rests with the challenger to prove no rational basis exists for this classification. See Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356; 364 (1973) (emphasis added) ..

The rational-basis test imposes an admittedly enormously high bar for challengers seeking to invalidate perceived unconstitutional statutes. The United States Supreme Court has declared the rational-basis test is the proper measure for distinctions of tbis type for purposes of the Fourteenth Amendment,. and, absent a finding that our own constitution offers heighted · equal-protection rights, we are powerless to change that standard today. So in both the majority decision and in my interpre'tation, KRS 342.730(4) remains constitutionally valid so long as its goals are rationally related to a legitimate state interest. I unfortunately disagree with the majority's conclusion that the General Assembly has no rational basis in classifying the workforce in this manner.

We dealt with this precise issue just over a decade ago in McDowell v. ·Jackson Energy RECC, 84 S.W.3d 71 (Ki 2002) and Keith. And in the time that has elapsed since, I see no changes or developments in the law other-than the composition of this Court. There has been no adjustment in either Kentucky or federal law predicating reconsideration of the wisdom· of these relatively recent rulings .. As .such, I vote to affirm this deeply rooted precedent ..

In McDowell, we determined that KRS 342.740(4) exists to avoid duplication of income-replacement benefits. This structure reduces the overall . . cost ·or workers' compensation and improves the economic stability within state· government. This reflects a similar policy goal from the pre-1996 tier-down structure that had previously been upheld.by this Cour.t. See Wynn v. !bold, 969 S.W.2d 695 (Ky. 1998). And this view of the benefit structure as ~wage- · loss" protection by placing· a ceiling on combined benefits "was viewed widely as being sound public policy." Keith, 178 S.W.3d at 467 (referring to A~thur

Larson and Lex K. Larson, 9 Larson's Workers' Compensation Law§ 97.35(a) and (b) (Matthew Bender 1997)). The McDowell Court also relied on the United States Supreme Court decision in Richardson v. Belcher, 404 U.S. 78 (1971), in support of its holding. In Belcher, the Court rejected an equal-protection challenge to a portion of the Social Security Act that allowed social security disability benefits to be reduced through overlapping state workers' compensation benefits. Belcher, 404 U.S. at 92. The McDowell Court found no difference under therational-basis standard between the federal offset provision and that found in KRS 342.730. Anci l agree.

The Commonwealth's goal of financial stability to ensure the overall viability of the state worker's compensation structure is not on~ I consider irrational. And it does so by first recognizing that workers' compensation exists to offset wage-loss resulting from workplace injury and then coordinating the \ receipt of benefits to avoid duplicate recovery. Essentially, the statute exists to prevent workers eligible for old-age social security benefits from "receiving. greater workers' compensation benefits than similarly situated workers who are totally disabled." Keith, 178 S.W.3d at 468. Though the statute admittedly, and ·obviously discriminates against older workers, it advances a legitimate state goal of ensuring the overall viability and stability of the workers' compensation structur:e as a whole. While this may appear unfair and exploitative of some of the Commonwealth's oldest and most vulnerable workers, lam not prepared to say it is unconstitutional to do so.

The majority opinion in fact agrees that the prevention of duplicate benefits and the continued solvency of the workyrs' compensation system are indeed rational bases for treating those who have qualified for normal social ·security retirement benefits differently from those whq have yetto do ·so. And though it does not expressly say so, I imagine the majority would also find these state interests legitimate. So accordiilg to our highly deferential standard of review, the analysis should end ther~.

But the majority continues by contrasting the general workers' compensation structure with the teacher retirement system, a point not raised or argued to us or in the proceedings below. As the majority reminds us, teachers have their own retirement and do. not participate . . in social security.' So accordingly, an older teacher who suffers a workplace inJ~ry will never be subject to the limitation in KRS 342.730(4) because the teacher will never quaH.fy for social security. This leads to the majority's ultimate conclusion that there is no rational basis for treating teachers differently from all other workers in the Commonwealth. But that is not the question before· this Court in the case before us today.

In addressing this observation, the analysis 'is no longer a dispute ov~r · whether our overall .statutory scheme unlawfully discriminates on the basis of . age. Instead, the majority takes its eyes off the issue before us and refocuses attention on whether state government unconstitutionally distinguishes benefit / believe the General Assembly's failure to include all retired workers in its comprehensive workers' compensation. scheme is this .underinclusiveness doctrine at work. This incomplete application does not undermine the legislature's goals or undercut the rationality of its distinction; it only highlights its failu;re to perfectly tailor its interest across the board. But ultimately, the fact that the line may have been drawn differently at one point is a question more appropriately committed for legislative, rather than judicial, consideration. See United States R.R. Ret. Bd. v. Fritz, 499 U.S. 166, 179) (1980).

To me, this distinction actually mitigates accusations of ageism; the statutory distinction is more about benefit eligibility and less a.bout age discrimination. A distinction between teachers and general workers undoubtedly exists, but I cannot say it is an age-based classification. I am unprepared and unwilling to evaluate these other equal-protection concerns today. I do recognize the majority's concerns, but I am·uncomfortabledepai:ting from Court precedent at this juncture.

I must also further take issue that the majority opinion classifies KRS 342.730(4) as uncon1stitutional special legislation prohibited under Section 59 of the Kentucky Constitution. Unfortunately, like the teacher-retirement exception, no party raised this issue at any point in the proceedings below nor offered any arguments in their brief to us suggesting that this statute is special legislation. Although we may affirm a lower-court ruling for any reason appearing in the record, case law and our own judicial prudence dictate that we should be reluctant to reverse a judgment for reasons not presented on appeal or argued below. And with respect to workers' compensation, KRS 342.285 further guides us; if the issue is not raised before an Administrative Law Judge, it may riot be rais~d later on appeal. Because this issue appears for the first time in the majority opinion, we should refrain from addressing it without at least inviting the parties to brief this new constitutional argument.

I respectfully dissent as to these portions of the majority opinion.

Hughes and VanMeter, JJ., join ..