Request By:
Ms. Betty A. Pugh
RR 5, Box 56
Falmouth, Kentucky 41040-9705
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Grant Winston, Assistant Attorney General
You requested by your letter of 30 August 1991, a formal opinion of this office as to whether "it was the intent of the legislature to exclude Railroad Retirees" from the classes of persons who are excepted from the normal requirement of purchasing sport hunting and sport fishing licenses before doing the acts which they authorize. You stated that you were declared disabled by the Railroad Retirement Board, and were denied an exemption on that basis by the Department of Fish and Wildlife Resources.
The statute you bring into question is KRS 150.170(8), a part of this Commonwealth's statutory law of fish and wildlife resources. That statute was amended by the Kentucky General Assembly in its regular session of 1990 to add to it yet two more groups of persons who are now no longer required to purchase sport hunting or sport fishing licenses. Ky. Acts, 1990, ch. 90, § 1. The law states:
Any resident who is declared totally and permanently disabled by the federal Social Security Administration or by the state Workers' Compensation Board may, without any sport hunting or sport fishing licenses, do any act authorized by the licenses.
KRS 150.170(8).
The statute on the surface appears to clearly and unambiguously exclude those declared disabled by the Railroad Retirement Board from the enjoyment of the license exemption. Where the words of a statute are clear and unambiguous and express legislative intent, there is no room for construction or interpretation, and the statute must be given effect as written.
Lincoln Co. Fiscal Court v. Dept. of Public Advocacy, Ky., 794 S.W.2d 162 (1990).
However, scratch the surface of this statute and its ambiguity appears. First, we note that the federal Social Security Administration nowhere considers or deals with the term "totally and permanently disabled. " That agency does not declare anyone to be totally and permanently disabled; it declares persons to be simply "disabled" within the meaning of the Social Security Act. "Disability, " as far as the Social Security Administration is concerned, means:
(A) Inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months; or
(B) In the case of an individual who has attained the age of 55 and is blind (within the meaning of 'blindness' as defined in section 416(i)(1) of this title), inability by reason of such blindness to engage in substantial gainful activity requiring skills or abilities comparable to those of any gainful activity in which he has previously engaged with some regularity and over a substantial period of time.
42 U.S.C. § 423(d)(1)(A), (B).
The term "totally and permanently disabled" is, however, employed by the Kentucky Workers' Compensation Board. See: KRS Chapter 342.
Railroad workers are not declared to be disabled by either the Workers' Compensation Board or the Social Security Administration. They are declared to be disabled by the federal Railroad Retirement Board under the provisions of the federal Railroad Retirement Act of 1974. 45 U.S.C. §§ 231, et seq. Railroad workers are disabled under that act when the Railroad Retirement Board determines that they are either:
Individuals who have a current connection with the railroad industry, whose permanent physical or mental condition is such as to be disabling for work in their regular occupation, and who (A) have completed twenty years of service or (B) have attained the age of sixty;
or
Individuals whose permanent physical or mental condition is such that they are unable to engage in any regular employment.
45 U.S.C. § 231a(a)(1)(iv) and (v).
What gives initial credence to your belief that the legislature's intent when enacting KRS 150.170(8) was to include disabled railroad workers is the federal courts' decisions that the standard used to determine disability under 45 U.S.C. § 231a(a)(1)(v) is the same or identical standard used to determine disability claims under the Social Security Act. See, e.g.,
Romaker v. Railroad Retirement Board, 733 F.2d 639 (8th Cir. 1984);
Burleson v. Railroad Retirement Board, 711 F.2d 861 (8th Cir. 1983). As a matter of law, the court in Burleson added that "It is the accepted practice to use social security cases as precedent in railroad retirement cases," Burleson, supra, at 862, citing,
Goodwin v. Railroad Retirement Board, 546 F.2d 1169 (5th Cir. 1977). Again, these cases considered claims for disability brought under Section 231a(a)(1) (v) of the Railroad Retirement Act, not Section 231a(a)(1) (iv), a material distinction for the purposes of this opinion.
Railroad workers may be declared to be disabled by the Railroad Retirement Board under 231a(a)(1)(iv) of the act upon a showing that they are merely unable any longer to "work in their regular occupation. " See:
Davis v. Gielow, 755 F.2d 738 (10th Cir. 1985);
Webb v. Railroad Retirement Board, 358 F.2d 451 (6th Cir. 1966). This is a much less stringent requirement than the one imposed upon claimants by the Social Security Administration at 42 U.S.C. § 423(d)(1)(A), (B), or, by adoption, the Railroad Retirement Board when considering claims brought pursuant to 45 U.S.C.§ 231a(a)(1)(v).
All of this leads us to the opinion that the legislature considered it to be of some importance which federal agency was making the declaration of disability. The legislature could assure itself that only those persons who were disabled under the more stringent standards of 42 U.S.C. § 423(d)(1)(A) or (B) would enjoy the exemption by requiring the declaration of disability be one made by the Social Security Administration. Were we to infer that the legislature intended to include within KRS 150.170(8) those persons who are declared to be disabled by the Railroad Retirement Board, we would be broadening the inclusiveness of the statute's embrace to those persons who are merely unable to do their former work under the more lenient standard of the Railroad Retirement Act at 45 U.S.C. § 231a(a)(1)(iv).
Therefore, it is the opinion of the Attorney General that the legislative intent behind KRS 150.170(8), as well as its effect, is to exempt from the otherwise required sport hunting and sport fishing licenses those persons who are either:
1) Declared to be totally and permanently disabled by the state Workers' Compensation Board; or
2) Declared to be disabled by the Social Security Administration.
Should the legislature choose to add to KRS 150.170(8) those persons who are declared to be disabled by the Railroad Retirement Board under 45 U.S.C. § 231a(a)(1)(v) in view of the law that that agency employs the same disability standard as the Social Security Administration when making those determinations, such is its prerogative, and its prerogative alone.