Vol. 2003/29       

• KENTUCKY APPELLATE DECISIONS 
  September 1 - 5, 2003
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• Kentucky SUPREME COURT Decisions 
  PUBLISHED - September 5, 2003
  

  AOC LINKS SUMMARIES OF DECISIONS

  2001-SC-000526-MR.pdf Size: 1251 kb Date: 9/5/2003 AMENDED : Sept 5, 2003; Aug. 25, 2003 Rendered:  AUGUST 21, 2003 Hodge v. Com. Criminal - Death Penalty SC affirmed Circuit Court's denial of Defendant's RCr 11.42 motion to vacate his conviction and death sentence without an evidentiary hearing.  Hodge received reasonably effective assistance of defense counsel.  Any of the alleged ineffectiveness was not so serious as to deprive him of a fair trial and there is no reasonable probability that a different result could have been achieved by even the best counsel. A complete review of the record in this case demonstrates that Hodge received a fundamentally fair trial with a reliable and fair sentence. Note:  Only change from previous opinion is addition of counsel page (page 18).

• Kentucky SUPREME COURT Decisions
  NOT TO BE PUBLISHED - None
   

  AOC LINKS SUMMARIES OF DECISIONS

  None

• Kentucky COURT OF APPEALS Decisions
  PUBLISHED - September 5 , 2003
  
  

  AOC LINKS SUMMARIES OF DECISIONS

  2002-CA-000758.pdf Size: 41 kb Date: 9/4/2003 Lexington-Fayette Urban County Gov. v. Lloyd Government Employment Health department was bound by the Board of Health's decision to reinstated employee with back pay.  Employee had appealed the termination of his employment as a school liaison worker, and even though judgment was entered by the merit system council reinstating employee, the employer refused to reinstate employee.  Employee brought an action for reinstatement, back pay, and injunctive relief against employer and others. CA held merit system council's decision to reinstate employee, rather than the Board of Health's decision that the termination of employee was justified, was the decision that was binding on the Health Department and the merit system council's decision was not advisory only. 2002-CA-001547.pdf Size: 32 kb Date: 9/4/2003 The GAP v. Curtis Workers Compensation – Average Weekly Wage   Curtis was injured in August 2000.   Curtis performed the same work as employees on the day shift but received $0.50 per hour shift differential, an employer incentive for employees to work the night shift.   The issue in this claim was whether the shift differential pay should be excluded when calculating her average weekly wage pursuant to KRS 342.140(1)(d).    ALJ Riggs concluded that the shift differential was “premium pay,” which is excluded by the statute, and awarded benefits based on a $346.15 average weekly wage.   The Board reversed and was affirmed by the Court of Appeals on the grounds that shift-differential pay is a part of the employee’s hourly pay and does not constitute premium pay since it was not based on the number of hours worked. 2002-CA-001821.pdf Size: 27 kb Date: 9/4/2003 Arlinghaus v. Gallenstein Tort, Cause of Action Against Priest CA affirmed SJ dismissing claims of parishioner's husband  who had sued church for priest's affair with his wife.  CA held no cause of action against the parish or church  "The mere fact that a person is a priest or other clergyman does not make him legally liable to his parishioners for personal liaisons. . . the relationship between parishioner and clergyman is essentially religious; its duties are not those of the civil law."  Commentary.   As Neil Sedaka once said, 'breaking up is hard to do.'  But apparently some 'get by with a little help from their friends.' Platt v. Platt, 728 S.W.2d 542 (Ky.App.,1987).

• Kentucky COURT OF APPEALS Decisions
  NOT TO BE PUBLISHED - September 5,  2003
    

  AOC LINKS SUMMARIES OF DECISIONS

  2000-CA-001940.pdf Size: 31 kb Date: 9/4/2003 Strange v. Com. Criminal CA reversed and remanded Defendant's conviction for Burglary - 3rd Degree.  It was error for TC to have deputy sheriff, a significant prosecution witness, placed in charge of the jury during their deliberations.  Further, the TC committed reversible error when it allowed impermissible investigative hearsay from sheriff's detective which had the effect of bolstering another witness' testimony. 2001-CA-001078.pdf Size: 23 kb Date: 9/4/2003 Curtsinger v. Curtsinger Wills and Estates, Fee Simple or Life Estate? Court applies "polar star rule," "common sense," and "ordinary meaning" to hold that a holographic will, taken in its entirety, leaves a life estate and not a fee simple interest. Holographic will stated "I will to Tommie Curtsinger Jr., my entire estate. The land is not to be sold for fifty (50) years in case of death of you it goes to nearest of kin."  The will read in its entirety using common sense and applying ordinary meaning to the words used, devised a life estate to Tommie with a remainder to Walter's next of kin. "The parties have spent a considerable amount of time discussing complicated legal principles such as restraints on alienation, anti-lapse statute, fee simple absolutes, life estate, and other terms which, we believe, never occurred to Walter when he wrote his final intent as to the disposition of his property." Commentary.  Again, a little black letter law to brighten your day. Hanks v. McDanell, 307 Ky. 243, 210 S.W.2d 784 (1948). "The "polar star rule" requires the court to look at the entirety of a will to discern the testator's intent. So dominant is the rule, that all other rules of construction are subordinate and will be employed only when the testator's intent cannot be ascertained from the language used. The intent of the testator shall prevail and shall be enforced unless it antagonizes a statute or is against public policy." 2001-CA-001543.pdf Size: 22 kb Date: 9/4/2003 Reed v. Com. Criminal CA affirmed TC's refusal to dismiss the case due to improper notification under the Interstate Agreement on Detainers (IAD), KRS 440.450 to KRS 440.500.  Proper notice should have been sent to the Commonwealth Attorney, and therefore, notification to the County Attorney did not cause the 180 day period to commence.   2001-CA-001747.pdf Size: 21 kb Date: 9/4/2003 Carper v. Com. Criminal  CA affirmed TC's denial of Defendant's motion to vacate pursuant to RCr 11.42 following guilty plea to murder. 2001-CA-001856.pdf Size: 30 kb Date: 9/4/2003 Crowe v. Com. Criminal  CA affirmed TC's denial of Defendant's motion to vacate pursuant to RCr 11.42 alleging ineffective assistance of counsel. 2001-CA-002284.pdf Size: 27 kb Date: 9/4/2003 Smith v. Com. Criminal  CA affirmed Circuit Court's denial of pro se Defendant's motion for relief pursuant to CR 60.02 . 2001-CA-002523.pdf Size: 32 kb Date: 9/4/2003 White v. Com. Criminal - DUI - Operation CA affirmed Defendant's conviction for DUI - 4th Offense following conditional plea.  TC properly found that police had probable cause to arrest Defendant despite lack of "operation" evidence. "In Wells v. Commonwealth, Ky. App., 709 S.W.2d 847, 849 (1986) and Harris v. Commonwealth, Ky. App., 709 S.W.2d 846 (1986), this Court outlined a number of factors to consider whether a person operated or was in actual control of a motor vehicle while intoxicated. Appellant argues these factors do not correspond with the facts in his case, and so probable cause was lacking.  The factors cited include: "(1) whether or not the person in the vehicle was asleep or awake; (2) whether or not the motor was running; (3) the location of the vehicle and all of the circumstances bearing on how the vehicle arrived at that location; and (4) the intent of the person behind the wheel."  Wells, 709 S.W.2d at 849; Harris, 709 S.W.2d at 847. In appellant’s case, no one saw him operate the vehicle, and it was found unoccupied, stationary, and without the engine running." Note:  I have to believe this decision would be reversed by the SC should it go up.  In Wells, supra, the SC set forth the factors to consider the "operation" issue.  In the case at bar, only one factor, #3, is remotely present.  Here, the appellant challenged the operation issue by contesting whether or not the police had probable cause to make the arrest.  This appeared to make it easier for the CA to affirm the TC's ruling.  Perhaps a better way would have been to allow the case to proceed to trial and then move for a directed verdict based upon insufficient proof of operation at the end of the Commonwealth's case.  Just my two cents worth, but I think the CA rendered a poor decision.  Scott Byrd 2002-CA-000223.pdf Size: 22 kb Date: 9/4/2003 State Farm Mutual Automobile Ins. Co. V. City of Louisville No Fault Benefits, Subrogation, Secured Vehicle CA reversed and remanded SJ.   State Farm, as a reparations obligor, may recover in a subrogation action for basic reparations benefits it paid to its insured from the City of Louisville.  A police officer with the city driving a vehicle owned by the City was not a secured vehicle under the meaning of the KMVRA 304.39-080(2). Commentary.  Imagine this logo on police cruisers 'this vehicle is not secure.'  Ouch.   2002-CA-000224.pdf Size: 21 kb Date: 9/4/2003 McFadden v. Cape Publications Inc. Libel - Public Figure Exception, Outrageous conduct CA affirmed SJ dismissing plaintiff's claim for failure to state a claim.  Appellant was a high ranking official in the elementary schools and a member of the state Board of Education  which made him a public figure whose actions in this case were of public concern.  Appellant is a public figure or public official, and, by virtue of the positions he held in public education, voluntarily involved himself in an area of controversy and interest to the general public so that his actions that may have reflected on his position in the field of education were also of public interest.  Although, appellant alleged in his complaint that the publication of the story constituted extreme and outrageous conduct, CA stated he failed to state a claim for intentional infliction of emotional distress. Commentary.  Not much in this one other than black letter law.  The CA said next to nothing about the facts of this case. 2002-CA-000341.pdf Size: 21 kb Date: 9/4/2003 McNeeley v. Com. Criminal  CA affirmed Circuit Court's denial of pro se Defendant's motion for relief pursuant to RCr 10.26 and CR  61.02. 2002-CA-000491.pdf Size: 41 kb Date: 9/4/2003 Northcutt v. Com. Criminal CA affirmed Defendant's conviction and 5 year sentence for Criminal Abuse in the Second Degree.  TC did not commit any error in denying Defendant's pre-trial motion to prohibit the introduction of evidence relating to abuse at her criminal trial.  Further, Defendant was not entitled to a directed verdict. 2002-CA-000746.pdf Size: 33 kb Date: 9/4/2003 Polick v. Com. Family Law, Termination of Parental Rights 16 year old mother and 19 year old father have a child.  Neither can remember the last time they fed child or changed it's diaper and trial court terminates their parental rights after they fail to attend parenting classes and after father who hears voices that tell him to hurt himself  refuses to obtain  medical treatment.   Father is only one who appeals the decision of the trial court terminating custody (while he is in jail after pleading guilty to 1.) custodial interference, 2.) second degree burglary and second degree escape).  Court of Appeals affirms trial court saying that KRS 625.090 allows trial court to involuntarily terminate parental rights when KRS 600.020 (statute on neglect) is satisfied.  The issue of neglect was contested by the father in his one (1) page brief.   Court of Appeals held that not only did the proof supporting the decision meet the clear and convincing standard, but the proof was also overwhelming. 2002-CA-000772.pdf Size: 26 kb Date: 9/4/2003 Tonkin v. Woodford County Planning and Zoning Zoning CA affirmed dismissal of zoning appeal.  An appeal of a zoning case is not a trial de novo. The trial court properly decided the case on the record before the Commission;  the TC did not consult evidence which was not properly before the court and only was applying the law to the facts available in the record.  Appellant has not alleged a justiciable controversy, and the trial court's dismissal was proper. Commentary.  Again, mostly black letter law on the zoning appeal with no elucidation of the lack of justiciability on the declaratory judgment action. 2002-CA-000974.pdf Size: 24 kb Date: 9/4/2003 Holland v. Com. Criminal  CA affirmed Circuit Court's denial of Defendant's motion to vacate pursuant to RCr 11.42 alleging ineffective assistance of counsel. 2002-CA-000981.pdf Size: 26 kb Date: 9/4/2003 Copeland v. Mason No Fault, Threshold Instructions CA affirmed jury verdict and instructions.  Jury did not have answer instruction apportionment since it had already concluded that the plaintiff had not met the no-fault threshold of permanent injury or $1,000 in medicals (instruction was an interrogatory and if answered no, the jury was to return to the court room).  Even though the parties had stipulated medical expenses paid were over $9,000, this did not mean that causation was stipulated and jury could conclude no threshold.   The objection to the threshold instruction and medical expenses was not preserved, because plaintiff did not object but only asked the court to require a finding on both parts of the Instruction. Commentary.  Although the CA cited nothing more than KRS 304.39-060(2), those with a questioning mind might take a look at Drury v. Spalding, 812 S.W.2d 713 (Ky., 1991) (no fault instructions and  the aggravation of pre-existing injuries ); and  Thompson v. Piasta, Ky.App., 662 S.W.2d 223 (1983).  Even though nonpublished opinions are not to be cited, they do provide outstanding guidance on preserving the appeal and objecting to the instructions with reasons. 2002-CA-001070.pdf Size: 36 kb Date: 9/4/2003 Bond v. Corbin, LTD Workers Compensation – Statute of Limitations   Bond filed an application for adjustment of claim in 2000 based on occupational pneumoconiosis which was dismissed by ALJ Cowden, and affirmed by the Board and Court of Appeals, on the grounds that it was not timely filed.  Bond suspected and his physician’s records confirmed that he was informed that suffered from the disease in 1995 but he failed to file his claim within the 3 years allowed by statute.   Further, he was held not to have timely filed within the 5 year statute of limitations for lack of evidence to support his claim that there had been any injurious exposure in the 5 years immediately preceding the filing of the application. 2002-CA-001072.pdf Size: 24 kb Date: 9/4/2003 Estate of Shewmaker v. RMD Home Office, Inc. and  Hooters of America Negligence, Food Poisoning, Experts and  Causation CA affirmed summary judgment entered against the plaintiff in a negligence action alleging that Hooters Restaurant served plaintiff's husband tainted oysters which caused him to contract Hepatitis B and die. Appellant/plaintiff  presented no evidence that consumption of the oysters caused the decedent's illness. Commentary.  This decision contrasts with another CA decision just out weeks earlier addressing the bacterial dangers of raw oysters and duty to warn. In Edwards v. Hop Sin, Inc. 2002-CA-001482.pdf, a panel consisting of BARBER, COMBS, AND KNOPF sent a dismissal back to the trial court stating a jury question had been presented regarding a duty to warn of the dangers of oysters in a products liability action - warning of defects or unreasonable risks of harm that could have been reduced or avoided by the provision of reasonable instructions or warnings. Although Hop Sin decision noted that marketing raw oysters is not an unreasonable risk in spite of the bacterium, the CA noted further that "Although a reasonable consumer is probably aware that raw seafood poses a certain risk of mild illness, the ordinary consumer was not in 1998 and probably still is not aware of this much graver risk."   However, the Hop Sin panel, amended their decision on September 19, 2003.  Unfortunately, the changes from decision to decision are not memorialized on-line so there is no way of following the court's changes in attitude.  However, I suspect it had something to do with those paragraphs indicating the eatery need not warn against every conceivable risk but only those latent risks sufficiently likely and sufficiently serious to demand attention and  a products liability limitation of a retailer's liability (versus manufacturer) who sells the product without any changes per KRS 411.340. In the Hooters' case, the appellate judges were Emberton, Knopf, and Schroder, and the expert testimony was scrutinized -  "It is Hooters' position that the mere allegations of causation arising out of the circumstantial evidence in this case (that the decedent contracted Hepatitis B following ingestion of the oysters at Hooters) are not sufficient to establish causation in this case. Hooters maintains that expert medical testimony would be necessary to prove that the decedent's consumption of oysters caused his Hepatitis B. We agree. Circumstantial evidence is sufficient to prove reasonable probability or proximate cause where the evidence reasonably establishes a causal connection between the alleged negligence and the injury. Johnson v. Vaughn, Ky., 370 S.W.2d 591, 597 (1963). Expert medical testimony is necessary when common knowledge or experience of laymen is not extensive enough to infer negligence from the facts. Jarboe v. Harting, Ky., 397 S.W.2d 775 (1965); Baylis v. Lourdes Hospital, Inc., Ky., 805 S.W.2d 122 (1991)." The causal connection of Hepatitis B with the ingestion of Hooter's oysters was not shown in the form of a medical opinion other than temporal proximity and circumstances. 2002-CA-001102.pdf Size: 31 kb Date: 9/4/2003 Eversole v. Louisville Ladder Group Negligence, Res Ipsa Loquitur CA affirmed TC's directed verdict dismissing strict liability claim relying on theory of res ipsa loquitur when nearly new ladder with no observable defects collapsed causing plaintiff's injuries. 2002-CA-001119.pdf Size: 19 kb Date: 9/4/2003 Estate of Pinchum v. Brown Appeals, Final and Appealable Since the circuit court only included the recitation that the judgment was final but failed to include the recitation that there was no just cause for delay, an otherwise interlocutory action was not appealable.   2002-CA-001230.pdf Size: 50 kb Date: 9/4/2003 Young v. Thomas Contracts, Arbitration Clause, Default Judgment, Bad Rap "Trick Daddy" the Rapper, ( isn't that really the nickname of a certain governor---I digress), and his cohort "Trina" were sued by Thomas, a WKU student.  Thomas had tried to set up a concert.  The contract was disputed -   Thomas didn't pay on time, and Trick Daddy and Trina don't perform -- (surprise!!!!).  Thomas files suit and obtains service by Secretary of State and a default is entered. Trick Daddy gets the default set aside, and the Rapper gets a bad rap as Thomas gets $140+ K jury verdict (another  surprise!!!!).  The Rapper appeals and the CA. holds local judge commits an abuse of discretion when he doesn't let Trick Daddy's legal entertainment contract lawyer testify (even bigger surprise!!!).  Trial judge shirked decision on an arbitration clause off onto the jury by holding it is the Jury who determines what parts of a contract constitute the contract in question.  CA remands.  Commentary.  CA saves rapper from the crapper through no default of his own. PRS 2002-CA-001246.pdf Size: 31 kb Date: 9/4/2003 Hamilton v. Meridian Mut. Ins. Co. Insurance, Contractual Statute of Limitations CA affirmed Meridian's policy provision requiring suit to be filed within one year of the fire loss and rejecting Hamilton's claim of estoppel and waiver by Meridian regarding the limitations period.  Hamilton's incarceration did not act as a disability tolling the period either; failure to dispute liability does not waive policy provision. 2002-CA-001273.pdf Size: 27 kb Date: 9/4/2003 Froman v. Leach Civil Rights, Failure to State Claim CA affirmed SJ dismissing civil rights claim.  Froman, a prison inmate, sued Leach for disclosing a polygraph to prison officials which later affected his parole hearing.  Froman then sued Leach claiming multiple civil rights violations.  CA found that that Froman has failed to make allegations supporting a cause of action pursuant to any of the cited sections of the Kentucky Constitution. In his Complaint, Froman alleged that the person he contracted with lied and sent a copy of the results to prison officials without his consent. Froman's allegations concern a breach of contract, not a violation of Section 1. 2002-CA-001492.pdf Size: 18 kb Date: 9/4/2003 Honeycutt v. Loveless Default Judgment, Setting Aside CA affirmed default judgment and TC's refusal to set aside same. "[N]o answer was filed to the present complaint, despite Honeycutt being represented by counsel at all stages of this, and other proceedings. After the Jefferson Circuit Court granted Loveless's motion for default, Honeycutt moved for the judgment to be set aside, claiming that the failure was attributable to the inaction of counsel. . . .  'For good cause shown the court may set aside a judgment by default in accordance with Rule 60.02.' Honeycutt argues that his attorney's failure to prepare and file an answer to the complaint falls under CR 60.02(a), 'mistake, inadvertence, surprise or excusable neglect.' The trial court apparently believed that Honeycutt and his attorney were engaged in a continuing scheme of deception and untruthfulness in the present and related litigation. We find no error or abuse of discretion in the refusal to set aside the default judgment. Honeycutt makes no compelling argument; he is 'stuck with' his choice of counsel and the course of conduct pursued by the both of them in these actions." 2002-CA-001509.pdf Size: 22 kb Date: 9/4/2003 Phillips v. Com. Criminal CA affirmed Defendant's conviction for Trafficking - 1st Degree and Possession of Drug Paraphernelia following conditional plea.  Police had reasonable and articulable suspicion to stop and question Defendant, and subsequently, had probable cause to make an arrest. 2002-CA-001646.pdf Size: 44 kb Date: 9/4/2003 Ramler v. Spartan Construction Inc. Workers Compensation – Exclusive Remedy Defense   Spartan obtained a contract to recycle concrete barriers from a state highway project.   Spartan and BMR entered into an agreement that Spartan would provide equipment and rent the crusher needed to recycle the concrete, that BMR would provide the labor for the project and retain the crushed material for sale, and Spartan would reimburse BMR for its labor costs.  Ramler, an employee of BMR, had 4 fingers severed in the course of the project, obtained an award of workers’ compensation benefits against BMR, and then sought recovery from Spartan in a common law negligence action.  The Circuit Court dismissed the action against BMR based on the exclusive liability provisions of the Workers’ Compensation Act applicable “up-the-ladder” to Spartan, and was affirmed by the Court of Appeals.   Ramler’s arguments that Spartan was not entitled to the defense based on   the close relationship of Spartan and BMR was rejected.  2002-CA-001664.pdf Size: 24 kb Date: 9/4/2003 Richter v. Richter Divorce, Maintenance Court of Appeals affirmed trial court ruling on husband paying wife $600.00 per month in maintenance for 72 months where 1.) the the husband's attorney failed to timely file a Motion to Alter, Amend or Vacate the Judgment and as such the appealable issue was not preserved, and 2.) the trial court properly examined all of the factors included in KRS 403.200 (maintenance statute), and as such there was no abuse of discretion on the part of the trial court in rendering their opinion and Judgment. 2002-CA-001806.pdf Size: 42 kb Date: 9/4/2003 Alcorp Inc. v. Barton Zoning Appeal CA affirmed trial court's dismissal of administrative zoning appeal.  Alcorp failed to perfect the appeal within 30 days by not naming the Fiscal Court as a party pursuant to Kentucky Revised Statutes (KRS) 100.347(3).  Board of Adjustments of City of Richmond v. Flood, Ky., 581 S.W.2d 1, 2 (1978) makes clear that under KRS 100.347 that the appeal to the circuit court mandatorily requires the appellant to perfect that appeal by filing it in the circuit court, including the legislative body as a party, within thirty days.    2002-CA-001931.pdf Size: 26 kb Date: 9/4/2003 Dodson v. Dodson Family Law, De Facto Custodians Court of Appeals reviews de facto custodian standard, explaining that the standard for determining when someone becomes a de facto custodian depends on 1.) who has been the primary caregiver and 2.) who has provided the primary financial support for the child pursuant to KRS 403.270.  The standard changed in July of 2000, therefore, Appellant's (the mother) reliance on the "unfitness" standard is misplaced when arguing that the paternal grandparents should not be deemed the child's de facto custodian. 2003-CA-000004.pdf Size: 19 kb Date: 9/4/2003 Hughes v. Com. Criminal CA affirmed Circuit Court's denial of Defendant's motion for copies of record.  Circuit Court properly denied request considering the absence of a valid motion for RCr 11.42 relief. 2003-CA-000150.pdf Size: 23 kb Date: 9/4/2003 Combs v. Mid-South Electronics, Inc. Workers Compensation – Statute of Limitations   Combs has problems with her right upper extremity in 1993 (wrist, arm and shoulder).   She continued to work  without significant changes in her condition until 1998 when she felt as though her shoulder was “going out” while using a paint gun and she was diagnosed as having bursitis of the right shoulder.   She continued to work until June 2000 when she developed severe headaches and neck pain and was diagnosed with multiple cervical conditions.   After a failed attempt to return to work, she permanently ceased working on October 11, 2000.  She filed her Form 101 on June 6, 2001 and was awarded TTD benefits based on permanent impairment arising from repetitive work activities, which the Board vacated and remanded for a finding on the date of manifestation of disability.   On remand, ALJ Riggs held that the disability manifested itself in 2000, but the Board reversed finding that the disability manifested in 1998 and that the claim was substantially time barred.   The Court of Appeals reversed the Board holding that, although any claim pertaining to the wrist, arm or shoulder would be time barred, claims based on the cervical spine would not be barred by the statute of limitations due to Combs’ lack of awareness of any such injuries until June 2000.  2003-CA-000236.pdf Size: 26 kb Date: 9/4/2003 Wilson v. Morgan Criminal, Prison Discipline CA affirmed Circuit Court's dismissal of pro se inmate's Petition for Declaratory Relief challenging propriety of disciplinary action. 2003-CA-000311.pdf Size: 17 kb Date: 9/4/2003 Horton v. Haeberlin Criminal, Expungement of Prison Disciplinary Record   CA affirmed Circuit Court's dismissal of  pro se inmate's Petition for Declaration of Rights seeking an expungement of a violation of Corrections Policies and Procedures for promoting dangerous contraband. 2003-CA-000521.pdf Size: 20 kb Date: 9/4/2003 Hall v. Lodestar Energy Workers Compensation – Work-Related Causation - Notice   Following his regular shift on November 24, 2000, Hall awoke the next morning with back pain  which became worse as he moved around.  He was uncertain of the cause of this pain.   He was unable to work that day and did not seek to return to work after that time.  Hall did not report to his employer that he related his back pain to a possible work injury prior to filing his Form 101 on May 11, 2001.  Hall failed to relate to any of his physicians that his injury was related to his work, and one physician testified Hall’s herniated disc was not the result of a repetitive or cumulative trauma.   ALJ Overfield dismissed the claim on the grounds that Hall failed to sustain his burden of proof that he sustained a work-related injury or that he provided due and timely notice to his employer and was affirmed by the Board and Court of Appeals.  2003-CA-000653.pdf Size: 16 kb Date: 9/4/2003 Collins v. Com. Criminal   CA dismissed appeal as being interlocutory.  P ro se Defendant had filed  motion for appointment of counsel. 2003-CA-000786.pdf Size: 37 kb Date: 9/4/2003 Wilson v. The Anthem Companies Workers Compensation – Notice – Law of the Case   Wilson was injured on August 20, 1999 but continued to work believing the pain would diminish over time.  She first reported the injury to her employer in Winter 2000.   After determining she was no longer able to perform her job, she quit in May 2001.  After rejection of the employer’s failure to give due and timely notice defense based on the employer’s failure to post a public notice setting forth an employee’s obligation to give notice of injuries, Wilson received an award which was reversed by the Board for further fact-finding concerning whether the record contained any other evidence of substance that would justify Wilson’s failure to have given notice for so long.   Wilson did not appeal further at that time.  On remand, ALJ Edens accepted the Board’s determination that Wilson’s ignorance of the notice requirement did not constitute excusable neglect for failing to give notice of her injury and dismissed the claim.   Wilson appealed arguing that the employer’s failure to post the notice required by KRS 342.610(6) mandates a finding that Wilson’s delayed reporting was reasonable.  The Board and Court of Appeals rejected Wilson’s argument and affirmed the dismissal.  When a final decision on a question is entered, rather than a mere comment on an issue, a party aggrieved by that determination must appeal at the time the decision is rendered.  An objection on remand is futile and relitigation of the previously-decided issue will not be allowed.

• Kentucky COURT OF APPEALS Decisions
  PUBLISHED - August 29 , 2003

AOC LINKS SUMMARIES OF DECISIONS

2002-CA-000651.pdf Size: 37 kb Date: 8/27/2003 Georgetown College v. Alexander Wills and Estates, Residurary  In a very factually dependent opinion argued by several leading Lexington estate lawyers, the Court of Appeals construed will provisions regarding a life estate to ensure that the will disposed of the complete estate.  Some of the factors that the Court considered included that the will was drafted by an attorney so the use of the word "heirs" was given its technical meaning and that "women are presumed capable of having children as long as they live."  2002-CA-000962.pdf Size: 30 kb Date: 8/27/2003 Camenisch v. City of Stanford Real Property, Easements Court applies rules of construction to distinguish between easement, condition subsequent with right of reentry or reversion, and covenant.  The language wasn't specific enough to be an easement.  Absence of words of forfeiture led the court to hold it was a covenant.  Court then found that it was a covenant that ran with the land and was more than a personal covenant.  Court of Appeals remanded for estoppel and other defenses. Note.  For those curious few here is the language that was interpreting- "Grantors to build and maintain at their own cost all fences necessary to enclose said parcel of land and said way, and as appurtenan (sic) to the land now owned and occupied by Grantors to supply the mansion house thereon with an adequate supply of water for all domestic purposes from the springs on the parcel conveyed and to supply the barn thereon with sufficient water for stock purposes and to furnish one hydrant at or near the gate of the yard and to supply also the said mansion house as an appurtenant thereto with four incandescent electric lights, the said supplies of water and light together with all necessary pipe wires and plumbing to be furnished free of cost to Grantors." 2002-CA-001123.pdf Size: 36 kb Date: 8/27/2003 Webster County Coal Co. v. Lee Workers Compensation – Hearing Loss   Mr. Lee was awarded permanent total occupational benefits for work-related hearing loss by ALJ Coleman, which the Board and Court of Appeals affirmed.   Lee was a shooter in underground coal mining  which caused him to be exposed to large amounts of loud noise for 33 ˝ years.  He filed a claim based on work-related hearing loss (and pneumoconiosis which was dismissed) in December 2000.   The university evaluator assigned an 18% AMA rating for the hearing loss, rendered an opinion of work-related causation, and restricted Mr. Lee from returning to the same type of work due to his hearing loss.    In light of Mr. Lee’s age, education and past work experience, the hearing loss was held sufficient to support the ALJ’s finding of permanent total occupational disability. 2002-CA-002489.pdf Size: 34 kb Date: 8/27/2003 Westerfield v. Diversified Health Care, Inc. Workers Compensation,  KRS 342.710(1)(c)(1) – Joinder of Claims   While off work and receiving TTD benefits for a January 1999 disc herniation at L5-S1 and fusion surgery, Westerfield settled a claim against the same employer and Special Fund for an October 1996   disc herniation at L4-5 injury and diskectomy for benefits based on a 20% occupational disability.  Following the 1999 injury and treatment , she was assigned a 21% AMA rating by her treating physician, the same as applied after the 1996 injury and treatment, but was assigned restrictions that would prevent her from returning to the type of work she had previously performed. ALJ Coleman awarded PPD benefits based on the 21% AMA rating and both KRS 342.730 (1)(c) multipliers under the 1996 version of the Act but was reversed by the Board and Court of Appeals.   Permanent partial disability is solely a function of impairment ratings under the AMA Guides .  If there is a prior rating that is unaffected by the subject injury, a finding of non-compensable pre-existing active disability is required.  In the absence of a compensable AMA rating, the modifiers are inapplicable.   The employer’s argument that KRS 342.270(1), requiring the joinder of all known claims, barred Westerfield from pursing benefits for the 1999 injury based on her settlement of the 1996 claim while receiving TTD benefits for the 1999 injury was rejected.   The stated reasoning was, unless an application for adjustment of claim is filed, a claim has not “accrued” and the requirement to join all claims does not apply.

• Western District Court - Kentucky
  Links and summaries taken en toto from official site
  

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Sixth Circuit Court of Appeals - ONE KENTUCKY CASE