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Cruse v. Aristech Chemical Co.1/20/2005
relying on a limitations defense under KRS 342.125(8) because it failed to raise the issue until its response to the renewed motion. We note, however, that the record is silent regarding the period of dormancy, that the claimant failed to object to the limitations argument, and that he never asked the ALJ to consider an estoppel, even in his petition for reconsideration. Furthermore, the estoppel argument that he raised to the Board was based upon the employer's payment of voluntary medical and TTD benefits and an alleged lack of prejudice to the employer, an argument that is different from the one he presently raises. Under the circumstances, the argument is not preserved for our review.
Finally, the claimant asserts that KRS 342.125(3) is unconstitutional. He argues that it gives unequal rights to workers and employers by permitting an employer to reopen at any time to reduce a total disability award if the worker returns to work. We note, however, that neither his 2001 motion nor the accompanying affidavit alleged that his work status changed after his award was reduced in January, 1997. In fact, we have found nothing in the record to indicate that he has worked since he received a total disability in 1994. Although the motion asserted that a worsening of his physical condition caused him to become totally disabled, neither a worker nor an employer may reopen on that ground if the original award was rendered before December 12, 1996, and the motion is filed after December 12, 2000. Brooks v. University of Louisville Hospital, 33 S.W.3d 526, 531 (Ky. 2000). Therefore, KRS 342.125(3) complies with equal protection when applied to these facts.
The decision of the Court of Appeals is affirmed.
Lambert, C.J., and Cooper, Johnstone, Keller and Wintersheimer, J.J., concur. Graves and Scott, J.J., dissent for the reasons stated in Judge Combs' dissent at the Court of Appeals.
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