Vol. 2003/25       

• MCD in MS Word Tables Format
  A few emails back I was trying to find out where the did the Jefferson County MCD in PDF vanish to on the Jefferson Courts Web Site.  Well, attorney Christopher Harrell (www.Harrell-Law.com) came through with a form - one that was better than the PDF since it was in MS Word and in tables for ease of editing.  No more need for a typewriter and the rapidly degenerating copies from Family Court.  Thanks Chris.  Oh yeah.  Do you think I'm gonna share????? You betcha.

  • Jefferson Family Court MCD (unofficial) in MS Word Format - courtesy Chris Harrell

  • Child Support Worksheet / the Kentucky child support worksheet 

  • Child Support Worksheet / LawReader’s self calculating child support worksheet in MS Excel Format

  • Now if only someone had an MCD in Excel so we could all throw away our calculators???
    HINT, HINT, HINT.  Let me know if anybody has done this AND are willing to share.  Just hit reply and insert the file.  Thanks. 
    

• KBA Proposed Advertising Regulations

  • All comments should be sent to the KBA no later than September 1, 2003 - the Attorneys' Advertising Commission, c/o Bruce K. Davis, KBA Executive Director, 514 West Main Street, Frankfort, KY 40601-1883.
  • Proposed Rule Changes - In PDF  <<<--- Here's a link to the proposed changes. 
     

• KENTUCKY APPELLATE DECISIONS 
  FOR August 4-9, 2003
  Adobe Reader Required (www.Adobe.com)
   
• Kentucky SUPREME COURT Decisions 
  PUBLISHED - None
  

• Kentucky SUPREME COURT Decisions
  NOT TO BE PUBLISHED - None
   

• Kentucky COURT OF APPEALS Decisions
  PUBLISHED - August 8 , 2003

  Links to AOC Opinions

  Summaries of Decisions

  1997-CA-000188.pdf    Size: 164 kb Date: 8/6/2003

  Rockwell International Corp. v. Willhite Punitive Damages, Argument, Negligence Trespass, S/L This is the remand from the Supreme Court involving the toxic tort case against Rockwell in Logan County involving PCB dischage, disallowed expert testimony, and $210 million in punitive damages plus $7+ million in compensatories for the landowners. CA again reversed the judgment in favor of the landowners 1. Statute of Limitations.  The landowners did not discover (and therefore did not have notice of) the pcb contamination until 1988 (per finding of judge which was unchallenged) and filed suit within 5 years in 1993.  However, the inquiry does not end here since a determination of the trespass as permanent or temporary will define the extent of the landowners' injuries.   "In the absence of binding contrary authority and consistent with the foregoing, we extend the application of the federal “discovery rule” to property damage actions in Kentucky with the necessary implication being that the landowners, if they have a viable cause of action, are entitled to recover damages for injuries incurred outside of the five-year limitation period preceding the filing of their complaint."  In addition, any wrongdoing occurring outside the limitations period shall be admissible in considering punitives. 2. Negligent Trespass.  "Although the landowners have established that Rockwell negligently trespassed on their properties when it allowed PCBs originating at its Russellville plant to flow into a stream and thus be deposited as a result of flooding on their properties, and although PCBs are a known carcinogen, the landowners have nevertheless failed to establish that their properties have suffered any injury as a consequence of the trespass. No persons who have come upon the land have been harmed, no farm animals or pets have been sickened, nor have any crops been lost. The land and the buildings thereon continue to be used as they were before the presence of PCBs was discovered. Thus, the landowners cannot recover damages under a negligent trespass theory." 3. Permanent Nuisance.  "In Kentucky, nuisance is primarily concerned with some use of property by a defendant which causes sufficient annoyance to an adjacent property possessor that interferes with the use of the adjacent land to such a degree that its value is materially reduced. Borrowing from our analysis of negligent trespass, in a nuisance case the annoyance and interference with the use of property are the injury, and the reduced market value is the measure of damages. In this case, there is no rational basis for a finding that the discharge of minute quantities of PCBs onto the landowners’ properties resulted in any interference with their use and enjoyment of the properties. While it is true that the presence of PCBs on land may cause a reasonable person to stop using that land because of health risks PCBs pose, it is only the case when a significantly higher concentration of PCBs is present. At the concentrations present on the lands in question, a person of ordinary health and sensitivities would experience no interference with his or her use of the property." 4.  Punitive Damages - Passion and Prejudice.  The CA looked at the damages and held "Rockwell would be entitled to have the punitive damages award set aside on this basis even if our resolution of the issues previously addressed did not independently necessitate reversal.  "[I]t is well established that a jury verdict on a disputed question of fact “may be reviewed and upset where, as in the present case, the amount at first sight appears excessive and to have been rendered as a result of passion or prejudice.”Commonwealth, Dept. of Highways v. Riley, Ky., 414 S.W.2d 885, 887 (1967) and Simpson County Steeplechase Ass’n, Inc. v. Roberts, Ky. App., 898 S.W.2d 523, 528 (1995) (applying standard to punitive damages).   A verdict will be set aside "“where the amount seems disproportionate to the actual damages suffered and it appears the jury may probably have been actuated by sympathy or by bias, prejudice or like unjudicial and improper motive.”" Field Packing Co. v. Denham, Ky., 342 S.W.2d 524, 527 (1961).   Comment:   This is a long and complex decision, and this summary is brief and does not do justice to the opinion but rather is designed to whet the appetite of those who are curious. Therefore, no real comments on the analysis, other than a lot of landowners had a very large verdict set aside against a known PCB polluter based upon the difficulty of discovery, the characterization of the tort, and damages/arguments.

  
  

• Kentucky COURT OF APPEALS Decisions
  NOT TO BE PUBLISHED - August 8,  2003
    

  2000-CA-000995.pdf     Size: 19 kb Date: 8/6/2003 Norwest Bank Minn. NA v. Hurley Discovery, Sanctions This case involved a remand from the Sup. Court which previously had considered the appeal timely filed and now the CA was to consider the case on the merits. CA affirmed dismissal for failure to comply with discovery.   "Among the factors to be considered in reviewing the imposition of sanctions for an abuse of discretion are: (1) whether the adversary was prejudiced by the dismissed party’s failure to cooperate in discovery, (2) whether the dismissed party was warned that failure to cooperate could lead to dismissal, and (3) whether less drastic sanctions were imposed or considered before dismissal was ordered. Greathouse v. American Nat’l Bank and Trust, Ky. App., 796 S.W.2d 868 (1990). CA also affirmed noting that the failure of the TC to make findings of fact was not brought to the attention of the TC by written request or motion per CR 52.04. Comment:  This case addressed a typical dilemma for counsel who lose a motion - to ask or not ask for findings of fact.  Here, the CA made it clear - snooze you lose.  If there are no findings of fact, then there is no error.  Prior to this analysis, I would have gone with the inclination that without any factual findings I might be in a better position to address all the facts on appeal.  However, this case puts a twist on that analysis by saying if you don't bring it to the court's attention, then you got no gripe.  Ouch. Mike S. 2000-CA-002528.pdf Size: 52 kb Date: 8/6/2003 Uninsured Employers Fund v. Reliance National Indemnity Co. Workers Compensation - Insurance - Up-Th e-Ladder Liability  This case involves multiple coal mining companies who were defrauded into believing they had purchased workers' compensation coverage and the "aftermath of this debacle."   In 1995, James Taylor obtained a policy of workers' compensation insurance from Reliance for  Worldwide Personnel Services, which he represented to be a Mississippi employee leasing operation.  Omicron Holdings Corporation, also owned and operated by Taylor, acquired a majority of Worldwide's stock and was added to the Reliance policy.  Omicron then formed Competitive Edge personnel Services (CEPS), for the purpose of entering into co-employment agreements with its clients, whic h Reliance advised would not be permissible under its policy.  Similarly, when advised that CEPS was interested in marketing itself to several coal mines, reliance advised that it did not write insurance policies for coal mines.  in 1996, Larry Lineman, an insurance agent, began contacting coal mines on behalf of CEPS proposing that they enter into co-employment agreements to obtain lower workers' compensation rates.  The mines were to fire their employees who would then be rehired by CEPS and  leased back to them.  The mines would pay a specified sum to CEPS and CEPS would provide them with workers' compensation coverage.  Several coal mining companies entered into such arrangements and in all cases retained control over their day-to-day operations, complete control over the employees and continued to maintain the employees on their payroll.  Before long, Reliance learned that coverage notices and first reports of injury  were being filed involving claims against coal mines in which Reliance was listed as the insurance carrier and began termination of Omicron's coverage.  Taylor then contacted another insurance agent, Mike Whitis, and obtained a policy for CEPS from Farmers Insurance Exchange based on representations that CEPS was a Texas risk management/human resources consulting firm with 13 offices and sales  employees and that it  was not engaged in the business of employee leasing.  Taylor then paid Whitis $6,000 to prepare certificates of insurance that named the coal mines CEPS had contracted with as certificate holders.  Before long, Farmers became aware of CEPS' deception and began termination of its policy.  Ultimately, Farmers' policy was voided ab initio, Taylor  was indicted and convicted on multiple federal charges, and CEPS entered into settlement agreements with the coal mines to refund their insurance premiums for workers' compensation coverage that was never provided.   ALJ Cowden ultimately held that none of the employees at issue ever became employees of CEPS and remained employees of the coal mines at all times relevant , that the coal mines were uninsured, that the  Uninsured Employer's Fund was liable for payment of benefits to the affected employees, and that two other companies who contracted with some of the coal mines were also liable for payment of benefits as "up-the-ladder" employers and was affirmed by the Board and Court of Appeals. 2001-CA-001615.pdf Size: 22 kb Date: 8/6/2003 Bailey v. Traditional Bank, Inc. Real Estate, Foreclosure CA reversed summary judgment "having concluded that there is a genuine issue as to a material fact concerning the indivisibility of the property" and remanded for further proceedings.  CA noted "there was clearly no agreement of the parties concerning this issue (of indivisibility), the single affidavit in support of summary judgment made no averment of indivisibility, and there was no Commissioner’s report." 2002-CA-000042.pdf Size: 59 kb Date: 8/6/2003 Haydon v. Haydon Divorce, KRS 61.690(2) Gov't Retirement At issue is the division of husband and wife's retirement and deferred compensation accounts maintained by both parties.  Court of Appeals holds that KRS 61.690(2) is constitutional (reversing the trial court) and that state government sponsored retirement benefits are classified as marital property, but only to the extent those retirement benefits exceed the statutory set-off.  Counsel is also cautioned against not citing to the record as provided for in the civil rules. Comment: Note again the CA's remarks about the appeal procedures.  MLS 2002-CA-000204.pdf Size: 28 kb Date: 8/6/2003 Stricker v. Com. Criminal CA affirmed in part and vacated in part Defendant's sentence.  Case involving concurrent federal sentence remanded to Circuit Court for accurate determination of sentence. 2002-CA-000300.pdf Size: 21 kb Date: 8/6/2003 Booker v. Galen of Kentucky, Inc. Medical Negligence, Hypodermic Stick It was undisputed that a visitor got stuck with a hypodermic needle discarded by a nurse at Norton's Southwest Hospital.  Needle was never found, and after multiple follow-ups and testing, plaintiff was never found positive for HIV. TC granted partial summary judgment dismissing claims based upon increased risk and fear of  and contracting infectious disease.  Jury awarded plaintiff $1150 for needle stick and pain and suffering.   CA disagreed with appellant’s sole contention on appeal that the trial court erred by granting summary judgment for appellee as to appellant’s claim for damages relating to an increased risk of, and her fear of, contracting a disease in the future. CA then focused its analysis on whether or not the conduct caused a loss or injury that caused damage looking at a series of cases -  Deutsch v. Shein, Ky., 597 S.W.2d 141 (1980)(plaintiff awarded damages for abortion when doctor failed to administer pregnancy test prior to x-rays concluding the x-rays was sufficient contact); Capital Holding Corporation v. Bailey, Ky., 873 S.W.2d 187 (1994)(since asbestos exposure had not yet caused an injury which resulted in loss or damage, no cause of action had accrued even though his exposure to the asbestos increased the likelihood that he would develop an asbestos related disease in the future); Alagia, Day, Trautwein & Smith v. Broadbent, Ky., 882 S.W.2d 121, 126 (1994)(in negligence situations, the statute of limitations does not begin to run unless and until the plaintiff suffers the manifestation of a disease or some other injury which produces loss or damage); Wood v. Wyeth-Ayerst Laboratories, Ky., 82 S.W.3d 849 (2002)(affirmed a trial court’s dismissal of a complaint for failure to state a claim upon which relief could be granted, based on the plaintiff’s failure to present any proof that she had suffered a present injury as a result of her ingestion of the drug combination commonly known as fen-phen). "Despite appellant’s citation to contrary case law from other jurisdictions, in these circumstances Kentucky case law and SCR 1.030(8)(a) clearly compel us to find that no cause of action has accrued for damages relating to appellant’s increased risk or fear of contracting an infectious disease."  Appellant was already compensated for the needle puncture. Comment:  In the last few weeks, our CA's have had the opportunity to look at the outer edges of medical negligence cases (two different panels, both unanimous).  Here the court looked at the 'increased risk' situation.  In Heavrin v. Jones, 2002-CA-000016.pdf, a CA looked at the 'lost chance' from failure to diagnose.  Both cases show you that there is more to this than a simple proximate cause analysis. However, our appellate courts continue to plow rows from the past and ignore Justice Liebson's admonition years ago about the moving stream of the law (paraphrased) when contributory negligence was abandoned for comparative negligence. The Booker case is more akin to typical proximate cause middle of the road negligence.   Initially, I thought this CA missed the boat (and still do) in their analysis of the 'injury' cases, but I believe they reached the right result here with the wrong reasoning.  Here the plaintiff was stuck by a needle not properly disposed of by a hospital nurse, and the plaintiff was worried for a while that she might have aids or some other infectious disease.  As time passed, her fears were for naught.  The plaintiff did suffer pain and suffering in the form of an unknown harm/risk in case the needle was dirty.  She was compensated for needle stick and presumably any pain and suffering from that contact. Although this CA was fixating on decisions from "our supreme court", they did not consider a host of CA decisions out there which seem a little more illuminating on this point, to wit:  Wilhoite v. Cobb, 761 S.W.2d 625 (Ky.App.,1988)(although this CA declined to allow damages for mother who witnessed child's death without any physical contact herself, the 'negative pregnant' to this analysis is that if there is physical contact then there are damages;  the CA then referred to Deutsch v. Shein by stating "The long-standing rule in this jurisdiction is that in negligence cases there can be no recovery for fright, shock, or mental anguish which is unaccompanied by physical contact or injury.")  In this case on appeal, Ms. Booker did have physical contact with a needle and she was entitled to be compensated for any fright, shock or mental anguish accompanied that contact from a dirty needle and the potential infections which could arise and not even be discovered for months).   The harm and damages were the fears, etc. associated with the dirty needle - her pain and suffering.  I contend she had the contact and the injury.  Just like the 'lost chance' analysis I made 3 weeks ago in Heavrin v. Jones, the damages need to focus on the objective reasonableness of the harm envisioned by the plaintiff which is not married to a more likely than not analysis.  Neither Ms. Booker nor the hospital knew where that needle had been, but it was contaminated which is why there are protocols for disposing of the needle as a biohazard.  Some diseases take a very long time to do their damage, and AIDS is notorious for the time-delay.  Shouldn't she be compensated for that pain?  Of course. Now why do I say the result was correct?  Because the TC awarded the plaintiff something for the stick, and I presume the medicals available included past and future pain and suffering.  The appeal was then overtaken by events (OBE).  To hold otherwise, would be to allow the plaintiff two causes of actions for the same injury/contact and then two sources of damages.  Wrong!  A needle stick is a needle stick, and the plaintiff is entitled to damages therefor regardless of the characterization of "increased risk" or simple ole pain and suffering for an epidermal puncture of her bodily integrity. The cases the CA relied upon at first blush appear to be intuitively sound, but under closer scrutiny, they miss the point.  Deutsch v. Shein is the seminal case on contact and damages such that x-rays equal contact.  Then the asbestos exposure shows the CA at its worst since without injury there was no proof of contact via the exposure.  The reason the asbestos case went the way it did was that without proof of the contact with those little asbestos fibers, the court would have allowed the plaintiff to reverse engineer the injury but there was no injury (chicken and the egg analysis), but nonetheless no proof of contact OR injury.  Now, the CA stretches the bounds of reason by relying on Alagia and the accrual of a cause of action for legal malpractice (huh?).  Then the CA returns to the land of the living and looks at the Phen-Fen case in which there was ingestion without injury.  However, the Phen-Fen was a products liability (not negligence) case where the appellate court equated the two and required contact.  But, a needle stick and a questionable drug provide entirely different 'contacts' and are not the same since the needle stick does have an objective injury when the skin is pierced by a bio-hazard object. Whew.  I never thought this would end. Mike S. 2002-CA-000493.pdf Size: 35 kb Date: 8/6/2003 SL Hotel Development LLC v. Golden Ranch Development LLC Contracts,  Summary Judgments upheld and one remanded with an order to enter a judgment.  Basic theory was that they were entitled to breach the contract because the other party had not obtained the rights to property that they were selling.  C.A. correctly points out that the contract didn't specify that the other party had to first obtain the rights.  In other words basic contract law was upheld.  2002-CA-000530.pdf Size: 37 kb Date: 8/6/2003 Grammer v. Com. Criminal CA affirmed Defendant's conviction and 7 year sentence for 1st Degree Criminal Abuse.  Trial Court did not abuse discretion in allowing rebuttal evidence after defense opened the door.  Defendant was not entitled to directed verdict nor lesser included instruction. 2002-CA-000613.pdf Size: 37 kb Date: 8/6/2003 Ragozine v. Com. Criminal Co-Defendant of Grammer, 2002-CA-000530.   Conviction for 1st Degree Criminal Abuse affirmed.  Defendant not entitled to directed verdict nor lesser included instruction.  Evidence properly admitted for rebuttal purposes.  Defense photographs properly ruled inadmissible due to failure to disclose pursuant to discovery order.    2002-CA-000879.pdf Size: 35 kb Date: 8/6/2003 Stepp v. Halsey Wills and Estates,  CA affirmed dismissal of action to invalidate will claiming appellees exerted undue influence upon decedent when she executed a will effectively disinheriting Daily and leaving her individual property to her siblings. CA held "because appellant was not entitled to amend her complaint to state new causes of action on remand, and because if her challenge to the will were successful the estate would not receive any additional distribution above what has already been distributed to Daily and/or the estate pursuant to Daily’s prior renunciation of the will, we affirm." 2002-CA-000983.pdf Size: 18 kb Date: 8/6/2003 Brooks v. Com. Criminal CA affirmed Circuit Court's denial of pro se Defendant's CR 60.02 motion to vacate. 2002-CA-001011.pdf Size: 27 kb Date: 8/6/2003 Woolsey v. Com. Criminal - Search & Seizure CA reversed conviction for conspiracy to manufacture methamphetamine following TC's denial of motion to suppress.   Here, the Defendant purchased a small quantity of lithium batteries at the local Wal-Mart.  Wal-Mart security suspected purchase was to facilitate manufacture of methamphetamine.  Security's suspicions were heightened after Defendant made the single purchase, held the bag close to his palm, returned to his vehicle by an indirect route, and turned south in his vehicle toward additional shopping areas after leaving Wal-Mart.  Police were alerted and subsequently made traffic stop based upon Wal-Mart security tip.   CA appropriately found police officer lacked reasonable and articulable suspicion to make traffic stop based upon Wal-Mart personnel's observations.  Trial Court erred by denying Defendant's motion to suppress. 2002-CA-001052.pdf Size: 23 kb Date: 8/6/2003 Imboden v. Phelps Negligence/Libel/Defamation, Statute of Limitations, Testimonial Immunity This case shows how family law is escaping the confines of family court.  Ms. Phelps a psychologist prepared a report containing her expert opinion that the husband had sexually abused the children, and this report was used in a child custody action.  Upon completion of the family law matter, the husband/Mr. Imboden sued Phillips and her employer (Trover Clinic) for negligence, defamation and slander. The defense was based on absolute immunity for libel and slander and the 1-year statute of limitations for the negligence claim.  The CA stated that the statute of limitations claim was not preserved on appeal, then added (presumably in dicta) that the affidavit of abuse had been filed in May and the suit filed in December of the following year - too late.  With regard to immunity, the CA relied on Reed v. Isaacs, Ky. App., 62 S.W.3d 398 (2000) , stating there is no dispute that testimony given in the course of a judicial proceeding is absolutely privileged against claims for libel and slander. Comment:  Interestingly enough, the immunity defense started out relying upon the psychologist's duty to report sexual abuse which the TC determined was a fact question when summary judgment was denied.  However, the defendants were not to be deterred, raising S/L and the absolute testimonial immunity for libel and slander.  But, with the wonders of hindsight and an incomplete record let's look at some potential teaching points from the statute of limitations arena.  Briefly, the CA concluded the report on abuse was made in May  but the suit against the psychologist was not filed until Dec of the following year (or over 19 months later).  Then the CA added that the statute of limitations had expired on the negligence claim. But, the question I have is did the CA have more info available to them than was reported to us, to wit: does simply making the report equate to an accrual of the cause of action or was there proof that the plaintiff knew of the substance of the allegations (even with the privileged nature).   It seems the CAs have been intent on laying blame on counsel for not preserving the appeal in the record, but the converse can be true as well - the CAs need to lay a complete factual predicate upon which their rulings are premised without requiring the reader to connect the dots. Mike S.  2002-CA-001089.pdf Size: 43 kb Date: 8/6/2003 Dehaven v. Dehaven Divorce, Property Distribution, Post-Divorce Agreements Court of Appeals will not disturb trial court's findings that husband and wife had agreement as to how marital farm is to be divided when husband took issue with survey and wife proposed to switch piece of land each was to retain post divorce .  This inquiry/offer (deemed "inquiry" by wife and "offer" by finding of the court) was not disturbed by Court of Appeals because Court held that post decree agreements are encouraged and the factual finding of the trial court (i.e. that there was an offer and acceptance) would not be disturbed by Court of Appeals. 2002-CA-001213.pdf Size: 30 kb Date: 8/6/2003 Whitaker v. Com. Criminal CA affirmed Circuit Court's denial of pro se Defendant's motion to vacate alleging ineffective assistance of counsel. 2002-CA-001254.pdf Size: 33 kb Date: 8/6/2003 Wise v. Alpha Leasing Co., Inc. Lease, Fiduciary Duties C.A. upholds lower court's Summary Judgments based upon agency law and unjust enrichment claims, all of which were questionable given the facts.  Interestingly for the second week in a row the C.A. interprets the underlying meaning of a vague Complaint.  2002-CA-001297.pdf Size: 24 kb Date: 8/6/2003 Davis v. Com. Criminal CA affirmed Circuit Court's denial of pro se Defendant's CR 60.02 and 60.03 motion to vacate based upon prosecutorial misconduct. 2002-CA-001570.pdf Size: 24 kb Date: 8/6/2003 Morris v. Kentucky Retirement Systems Government Employment Preexisting condition,(two prior auto accidents), not on the job, and no workers comp claim made makes for the ingredients of a denial of disability cake for an EKU professor.  2002-CA-001592.pdf Size: 50 kb Date: 8/6/2003 Billiter v. Miller Real Property, Deeds CA did not disturb trial judge's findings of fact and affirmed holding CA bound by the finding that party had notice of unrecorded deed. 2002-CA-001723.pdf Size: 34 kb Date: 8/6/2003 Newcomb v. Cox Real Estate CA affirmed TC that post-judgment motion to modify, alter or vacate a judgment confirming a Master Commissioner’s sale of real property was not timely filed. 2002-CA-001978.pdf Size: 27 kb Date: 8/6/2003 Sparks v. Com. Criminal CA affirmed Defendant's conviction for Failure to Make Required Disposition of Property following bench trial.  "Defendant received a fair trial, tainted neither by the improper loss of exculpatory evidence nor by the improper admission of evidence, and the Commonwealth introduced sufficient evidence of her guilt to justify her conviction." 2002-CA-002291.pdf Size: 19 kb Date: 8/6/2003 Hall v. Tate Family Law, Custody Parents divorce, custody of child is given to mom, child goes to live with aunt and uncle, and child lives with aunt and uncle for over a year with child doing well.  Aunt and uncle give child a good home and then aunt and uncle file a juvenile petition seeking an emergency custody order.  The commissioner held a hearing on the petition and before the time ran for exceptions to be filed, the Court affirmed the commissioner's findings.  Mother appealed and Court of Appeals affirmed holding that maybe procedure was not followed completely, but there were no erroneous findings by Court. 2003-CA-000191.pdf Size: 22 kb Date: 8/6/2003 Jones v. Ferguson Inmate Discipline CA affirmed Circuit Court's dismissal of pro se inmate's Petition of Declaration of Rights.  Inmate not denied due process.  There was sufficient evidence to support disciplinary action. 2003-CA-000370.pdf Size: 74 kb Date: 8/6/2003 Hamilton v. Kentucky-W.Va. Gas Co. Workers Compensation - Reopening Hamilton injured his back in 1991, received an award of social security disability benefits, and then received an Opinion and Award of PPD benefits for a 60% occupational disability which was entered  in 1994.  He never returned to work after entry of the 1994 award.   Hamilton moved to reopen his claim in August, 1 998 alleging increased occupational disability and a surgical recommendation.  The claim was assigned for the taking of proof  and was then placed in abeyance for an extended period of time on Hamilton's motion.  Hamilton testified about having  more frequent and more intense symptoms and lessened ability to engage in physical activities. The medical opinion proof conflicted as to whether there had been a worsening of condition which had resulted in increased occupational disability after 1994.   ALJ D. Smith found that Hamilton's testimony of the severity of his pain and limitations on his activities appeared basically the same as his complaints prior to the 1994 award, was persuaded by Dr.Goodman's opinion that there had been no worsening of condition, and denied any change in Hamilton's award of disability benefits but found the proposed s urgical procedure to be  compensable and was affirmed by the Board and Court of Appeals.  On appeal to the Board, Hamilton also sought remand of the claim for purposes of entry of an award of TTD benefits un til such time as the contemplated surgery was performed and maximum medical improvement was attained.  Having f ailed to seek such an award of interlocutory benefits from the ALJ or otherwise preserving the issue before the ALJ, the Board held it could not  order such a  remedy on appeal and was affirmed by the Court of Appeals. 2003-CA-000443.pdf Size: 37 kb Date: 8/6/2003 Wal Mart Stores v. French Workers Compensation - AMA Guides   French was struck in the head in 1999.  Dr. Anthony was the only physician to assign an AMA rating but cited an incorrect section of the Guides as the basis for his rating.  ALJ  Cowden accepted Dr. Anthony's opinion and  based an award of PPD benefits on his rating and was affirmed by the Board.  The Court of Appeals also affirmed.  An inaccurate citation to the AMA Guides does not render a physician's rating o pinion  incompetent. It is a question of credibility and weight of the evidence.   An ALJ could use such an  inaccuracy to discount the physician's  credibility and choose not to accept the rating but is not required to do so.  A ch allenge to the ALJ's finding that French's stroke was causally related to the work injury was rejected on the grounds that the decision was supported by substantial evidence of record. 2003-CA-000472.pdf Size: 18 kb Date: 8/6/2003 Merrick Printing Co. v. Vertress Workers Compensation - Subrogation - Reopening  Vertrees injured his back in 1998, underwent surgery, and then settled his claim in February, 2000.  He filed a malpractice action against the surgeon in November, 2000 and settled that action on July 5, 2002.  The employer's motion to intervene in the civil action to assert its subrogation rights filed on July 8, 2002 was denied as not having been timely filed pursuant to KRS 411.188(2).  The employer sought reopening of the workers' compensation claim based on the "newly discovered evidence" provision of KRS 342.125 to obtain relief against Vertrees obtaining a "double recovery" prohibited by KRS 342.700(1).  Reopening was denied by ALJ Lowther who was affirmed by the Board and Court of Appeals.  The Court of Appeals explanation for its ruling was:  "At the time the settlement was approved, the civil action was pending which could have resulted in either settlement or trial. Under the circumstances, the settlement cannot be considered newly discovered evidence."   Comment:  If the civil action was filed in November, 2000, how could it have been "p ending " at t he time of the February, 2000 settlement approval? TGH   Moral:  If an employer wishes to assert its subrogation rights, it should do so at the earliest date possible to avoid this type of situation.  TGH

• Western District Court - Kentucky
  

  None

   

• Sixth Circuit Court of Appeals - ONE KENTUCKY CASE
  

  Opinion DocketSheet Pub Date Short Title/District 03a0280p.06 01-6344 2003/08/11  USA v. Faison     Western District of Tennessee at Memphis 03a0281p.06 02-1426 2003/08/12  USA v. Boumelhem     Eastern District of Michigan at Detroit 03a0282p.06 01-5656 2003/08/13  Weaver v. Shadoan     Eastern District of Tennessee at Knoxville 03a0283p.06 02-3253 2003/08/13  Roman v. Ashcroft     Northern District of Ohio at Cleveland 03a0284p.06 02-3820 2003/08/13  Fazio v. Lehman Bros Inc     Northern District of Ohio at Cleveland 03a0284p.06 02-3821 2003/08/13  Fazio v. Lehman Bros Inc     Northern District of Ohio at Cleveland 03a0284p.06 02-3822 2003/08/13  Fazio v. Lehman Bros Inc     Northern District of Ohio at Cleveland 03a0284p.06 02-3823 2003/08/13  Glazer v. Lehman Bros Inc     Northern District of Ohio at Cleveland 03a0284p.06 02-3824 2003/08/13  Glazer v. Lehman Bros Inc     Northern District of Ohio at Cleveland 03a0284p.06 02-3825 2003/08/13  Visconsi v. Lehman Bros Inc     Northern District of Ohio at Cleveland 03a0284p.06 02-3826 2003/08/13  Visconsi v. Lehman Bros Inc     Northern District of Ohio at Cleveland 03a0284p.06 02-3867 2003/08/13  Spitalieri v. Lehman Bros Inc     Northern District of Ohio at Cleveland 03a0284p.06 02-3868 2003/08/13  Spitalieri v. Lehman Bros Inc     Northern District of Ohio at Cleveland 03a0284p.06 02-3869 2003/08/13  Lopardo v. Lehman Bros Inc     Northern District of Ohio at Cleveland 03a0284p.06 02-3870 2003/08/13  Lopardo v. Lehman Bros Inc     Northern District of Ohio at Cleveland 03a0284p.06 02-3873 2003/08/13  Bonutti v. Lehman Bros Inc     Northern District of Ohio at Cleveland 03a0284p.06 02-3874 2003/08/13  Bonutti v. Lehman Bros Inc     Northern District of Ohio at Cleveland 03a0284p.06 03-3041 2003/08/13  Fazio v. Cowen & Company     Northern District of Ohio at Cleveland 03a0284p.06 03-3042 2003/08/13  Visconsi v. Cowen & Company     Northern District of Ohio at Cleveland 03a0284p.06 03-3043 2003/08/13  Lopardo v. Cowen & Company     Northern District of Ohio at Cleveland 03a0284p.06 03-3045 2003/08/13  Bonutti v. Cowen & Company     Northern District of Ohio at Cleveland 03a0284p.06 03-3112 2003/08/13  Visconsi v. Lehman Bros Inc     Northern District of Ohio at Cleveland 03a0284p.06 03-3113 2003/08/13  Visconsi v. SG Cowen Securities     Northern District of Ohio at Cleveland 03a0284p.06 03-3258 2003/08/13  Visconsi v. Cowen & Company     Northern District of Ohio at Cleveland 03a0285p.06 01-2235 2003/08/13  G.A.D. Inc v. Loyer     Eastern District of Michigan at Detroit 03a0286p.06 01-4151 2003/08/14  Nardei v. Maughan     Northern District of Ohio at Youngstown 03a0287p.06 01-3920 2003/08/14  Gulertekin v. Tinnelman-Cooper     Southern District of Ohio at Columbus 03a0288p.06 01-1583 2003/08/14  O.J. Distributing v. Hornell Brewing     Eastern District of Michigan at Detroit 03a0289p.06 01-1934 2003/08/15  USA v. Swanson     Eastern District of Michigan at Detroit 03a0290p.06 01-6001 2003/08/15  USA v. Patterson     Western District of Tennessee at Memphis 03a0291p.06 02-5099 2003/08/15  USA v. Calor     Eastern District of Kentucky at Lexington 03a0292p.06 02-5261 2003/08/15  Overton Distr Inc v. Heritage Bank     Middle District of Tennessee at Nashville

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Thank you, 

Mike Stevens