Request By:
Billy G. Wellman
Major General KYNG
The Adjutant General
Boone Center
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Martin Glazer, Assistant Attorney General
You seek an opinion concerning an interpretation of KRS 164.515. Subsection (2) provides:
To be entitled to benefits under this section the parent of the child claiming benefits if living must be rated permanently and totally disabled for pension purposes or one hundred per cent (100%) disabled for compensation purposes by the United States veterans' administration of the department of defense or if deceased the claim to benefits is to be based on the rating held by the veteran at the time of death or if a prisoner of war or missing in action must have been declared as such by the department of defense. Members of the Kentucky national guard must be rated permanently and totally disabled as provided in KRS Chapter 342. The parent's or spouse's service must be evidenced by certification from the records of the Kentucky department of military affairs, veterans' administration records, or the department of defense of the United States.
KRS 164.515, (3) provides:
In the absence of certification of permanent and total disability by the Kentucky workers' compensation board, the United States veterans' administration or the department of defense, medical evidence showing permanent and total disability or the existence of permanent and total disability for a period of at least thirty (30) days immediately prior to death may be accepted, if this evidence is signed by a physician licensed to practice or an official of an accredited medical hospital.
You want to know whether an otherwise qualified person would qualify if his parent was declared permanently and totally disabled by an agency, such as the Social Security Administration or by other competent medical authority, and what effect, if any, would there be if the United States Veterans' Administration rated a person at less than totally disabled while the Social Security Administration or other competent medical authority rated said person as permanently and totally disabled.
The prior opinions of this office dealt with peripheral matters not directly concerned with the questions you now ask. These opinions give us no guidelines, nor are we aware of any court case deciding these questions, so we must look to the actual statutory language itself.
In researching these issues, we traced the history of KRS 164.515 and found an interesting mistake in codification which may have a bearing on interpretation.
In 1974, the General Assembly amended this statute by two acts, Senate Bill 155 and Senate Bill 156. The last sentence of Subsection 2 in KRS 164.515 in Senate Bill 156 did not change the original language, which then read: "The father's service and rating must be evidenced by certification from the veterans' administration records, its successor or the department of defense of the United States." This bill was received by the Secretary of State 3/25/74 at 2:27 p.m.. The term "and rating" following "service" was part of the original statute.
Senate Bill 155 was received by the Secretary of State 3/25/74 at 11:15 a.m. The aforesaid sentence was changed to read: "The parent's or spouse's [father's] service must be endorsed by certification from the records of the Kentucky department of military affairs, veterans' administration records [its successor] or the department of defense of the United States."
The term "and rating" was omitted, but was not bracketed out. On codification, both of these acts were meshed, but the statute reviser failed to include "and rating" in publication. Later amendments carried forward this omission, the last occurring in 1978.
KRS 446.280, enacted in 1982, reads:
In the event material which was in the original text of a statute is deleted from the statute in a bill amending the statute but is not indicated by brackets and strike through, the deletion shall be considered in error and shall have no force and effect and shall be retained in any publication of statutes by the statute reviser.
This codification reflects the actual practice. So, the term, "and rating, " was mistakenly omitted from KRS 164.515(2) and should be considered a part thereof.
Therefore, considering the actual language as it should be written in all the sections of KRS 164.515 where the Workers' Compensation Board, the Veterans' Administration, or the Department of Defense has rated a veteran 100% disabled, his spouse or eligible children would be entitled to the benefits therein. But, if the Veterans' Administration decided 50%, the Defense Department decided 60%, and the Workers' Compensation Board decided Iess than 100%, then the spouse or otherwise eligible child would not meet the requirements of the statute. The Social Security Administration rating is not even mentioned in the statute.
Where neither the Veterans' Administration, Defense Department, nor Workers' Compensation Board has made any rating, a 100% rating by a licensed physician or accredited medical hospital would meet the requirements, but where the Veterans' Administration said 50%, Defense Department said 60%, and Workers' Compensation Board said 70%, a 100% rating assessment by a physician or hospital would not be acceptable.
That is how we interpret the language of KRS 164.515, until a court shall rule otherwise.