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Benson''s v. Fields3/27/1997
, 681 S.W.2d 427 (1984). In Gossett, the worker had returned to work at the time he was awarded benefits due to a work-related eye injury. Subsequently, he was laid off. He alleged that, although he had experienced no physical change since the award, he was unable to find other employment due to the injury. Therefore, he sought to reopen the award. The Court recognized that workers' compensation awards were based on occupational rather than functional disability and determined that the 1987 amendment to KRS 342.125, which permitted the reopening of a claim upon a showing of a "change of occupational disability," was remedial legislation which was consistent with the purpose of the reopening statute. Therefore, we determined that the amendment did not come within the legal conception of a retrospective law and could properly be applied to a claim which arose before its effective date.
Thornsbury, upon which the Court of Appeals also relied, concerned the 1994 amendment to KRS 342.732(1)(a) and is distinguishable. There, the Court observed that the retraining incentive benefit was available to coal workers who had contracted category 1 pneumoconiosis but who did not demonstrate a significant respiratory impairment and, therefore, had not sustained an occupational disability. The purpose of the benefit was to enable such workers to retrain, with the goal of encouraging them to obtain employment outside the mining industry before they became occupationally disabled. The Court observed that the remedy contained in the pre-1994 version of KRS 342.732(1)(a) was ineffective in accomplishing that purpose. 908 S.W.2d at 112. Since the apparent reason for amending KRS 342.732(1)(a) was to substitute a remedy which was more likely to accomplish the purpose for which the provision was created, the 1994 amendment was determined to be remedial in nature. Therefore, the amendment could properly be applied to claims which arose before its effective date. Unlike amendments affecting the level of income benefits payable in compensation for the impairment of a worker's ability to earn an income, the amendment at issue in Thornsbury did not alter a substantive right. See Beth--Elkhorn v. Thomas, Ky., 404 S.W.2d 16 (1966); Maggard v. International Harvester, Ky., 508 S.W.2d 777 (1974).
Likewise, Conco is distinguishable. That case concerned whether the extent of the Kentucky Insurance Guaranty Association's (KIGA's) obligation to pay an employer's share of a workers' compensation award after the employer's insurer became insolvent was affected by an amendment which removed the $50,000 cap on KIGA's liability for workers' compensation claims. In that case, the Court of Appeals noted that KIGA is an entity created by the legislature for the protection of the public against insolvent insurers. KRS 304.36-020. The Court concluded that, in removing the cap on KIGA'S liability for workers' compensation claims, the legislature intended to enhance the protection of injured workers and their employers. Therefore, the Court concluded that the amendment operated in furtherance of the remedy and could properly be applied to an antecedent cause of action. See KRS 304.36-040.
The employer and the Special Fund are in the position of co-defendants in workers' compensation cases, with each having primary liability to the injured worker. Palmore v. Helton, Ky., 779 S.W.2d 196 (1989). Conco did not involve the shifting of primary liability from one defendant to another but the extent to which KIGA was required to assume the obligation of an insolvent insurer to cover the employer's liability for its share of an award. Therefore, we do not find the decision in Conco to be persuasive under the present circumstances.
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