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Benson''s v. Fields3/27/1997
ted the degree to which liability may be shared by the Special Fund."
KRS 342.1202(2) provides as follows:
The special fund's liability for income benefits for all other injury claims shall not exceed fifty percent (50%) of the income benefits awarded for permanent disability. In those injury claims where the administrative law Judge determines that the apportionment to the special fund under KRS 342.120 exceeds fifty percent (50%) of the award of permanent disability, that portion of the award exceeding fifty percent (50%) shall be paid by the employer.
KRS 446.080(3) provides that "no statute shall be construed to be retroactive, unless expressly so declared." Nonetheless, legislation has been applied to causes of action which arose before its effective date, in the absence of an express declaration that the provision is to be so applied, in those instances where the courts have determined that the provision was remedial or procedural in nature and that retroactive application of the provision was consistent with the legislative intent. See KRS 446.080(1).
The Special Fund argues that in view of the emergency declaration and the "crisis" in the workers' compensation program, the 1994 amendment is remedial in nature. However, the significance of an emergency clause is that legislation containing such a clause becomes effective upon approval of the Governor rather than ninety days after adjournment of the session in which it is passed. Ky. Const. § 55. Emergency legislation may or may not be remedial in nature. In the absence of an express statement that a particular piece of legislation is remedial and is to apply to antecedent causes of action, the presence of an emergency clause does not necessarily indicate a legislative intent that it be so applied. Neither the emergency clause nor any other provision of House Bill 928 provides that the 1994 amendment to KRS 342.1202 shall be construed as retroactive. Therefore, the question becomes whether it appears that the legislature intended for the amendment to be applied retroactively. We are not persuaded that it did.
In Gossett, upon which the Court of Appeals relied, we explained the concepts of remedial and retrospective legislation as follows:
A retrospective law, in a legal sense, is one which takes away or impairs vested rights acquired under existing laws, or which creates a new obligation and imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past. Therefore, despite the existence of some contrary authority, remedial statutes, or statutes relating to remedies or modes of procedure, which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of such rights, do not normally come within the legal conception of a retrospective law, or the general rule against the retrospective operation of statutes. In this connection it has been said that a remedial statute must be so construed as to make it effect the evident purpose for which it was enacted, so that if the reason of the statute extends to past transactions, as well as to those in the future, then it will be so applied although the statute does not in terms so direct, unless to do so would impair some vested right or violate some constitutional guaranty. 73 Am.Jur.2d Statutes § 354 (1974) (Footnotes omitted).
819 S.W.2d at 36.
Before 1987, KRS 342.125 permitted the reopening of a workers' compensation award upon a showing of a "change of condition," a standard which was construed as requiring a change of physical condition as well as a change of occupational disability. Continental Air Filter v. Blair, Ky.
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