FLOYD METCALF PETITIONER
v.
ADVANCED PAVING & CONSTRUCTION And HON.W. GREG HARVEY, ADMINISTRATIVE LAW JUDGE RESPONDENTS
Claim No. 201701543
Kentucky Workers Compensation
Commonwealth of Kentucky Workers’ Compensation Board
February 26, 2021
APPEAL
FROM HON.W. GREG HARVEY, ADMINISTRATIVE LAW JUDGE.
COUNSEL FOR PETITIONER: LMS, HON WAYNE C DAUB 600
COUNSEL FOR RESPONDENT: LMS, HON LYN DOUGLAS POWERS.
ADMINISTRATIVE LAW JUDGE: LMS, HON W GREG HARVEY
MAYO-UNDERWOOD BLDG.
BEFORE: ALVEY, Chairman, STIVERS and BORDERS, Members.
OPINION
ALVEY,
Chairman.
Floyd
Metcalf (“Metcalf”) appeals from the September
16, 2020 Opinion, Award and Order on Remand rendered by Hon.
W. Greg Harvey, Administrative Law Judge (“ALJ”)
finding the current version of KRS 342.730(4) is retroactive
and applicable to the award of permanent total disability
(“PTD”) benefits.
On
appeal, Metcalf argues the ALJ erred in retroactively
applying KRS 342.730(4) to his award of PTD benefits. He
argues the retroactive application of the current version of
KRS 342.730(4) is unconstitutional. We find the ALJ’s
Opinion on Remand is in conformity with the directives of the
Kentucky Court of Appeals in Advanced Paving &
Construction v. Metcalf, et. al., No. 2018-CA-001196-WC,
rendered March 27, 2020 (rendered not to be published) and
with the holding by the Kentucky Supreme Court in Holcim
v. Swinford, 581 S.W.3d 37 (Ky. 2019). We additionally
note this Board lacks the authority to make determinations on
constitutional issues. We also note this appeal is not barred
by the “law of the case” doctrine, or res
judicata, since the Kentucky Court of Appeals previously
declined to render a decision on the issue of
constitutionality. Therefore, we affirm.
Metcalf
filed a Form 101 on September 6, 2017. Metcalf was operating
a hoe-ram on November 9, 2016, when rock struck his right
eye. The right eye injury resulted in several surgeries and
near total blindness. Metcalf worked as a heavy equipment
operator for Advanced Paving and Construction...
