This is a Circuit Court case which deals with the issues of subrogation in the case where payments were made by the workers' compensation carrier for medical expenses and some temporary total disability, but the claim was later dismissed as not having occurred on the job.  Thus there was no workers compensation claim in which to determine subrogation rights.  However, the workers' compensation carrier sued the injured party, as well as the tortfeasor and his insurance, to get their money back.  The Court held that they could not sue the injured party, but could get indemnification from the tortfeasor and his insurer.

You have to read it to believe it.  Apparently, after the Trial Court quashed a writ of possesion on a mobile home repo action, the finance company's counsel sent Notice of repo and sale to the vacant lot instead of to the debtors known counsel.  Debtor gets a Trial Court Order that orders the finance company to return the mobile home or make it available for inspection.  They do neither and ignore the Court Order.  The Court grants the debtor Summary Judgment and damages.  Finance Company appeals.

The C.A. upholds saying the Notice of repo and sale was deficent under the statute as they knew debtor was represented by counsel but instead they sent the Notice to the vacant lot the mobile home was on, knowing the debtor no longer lived there.

Moral of the story, don't get cute when there is an underlying Court order you failed to follow.  IT'S NOT NICE TO FOOL WITH MOTHER THEMES. 

COA reverses TC ruling that Appellant's refusal to grant disability  benefits was arbitrary.  Appellee filed a claim for disability benefits on the basis she was suffering from osteoarthritis.  Using the substantial evidence test, the COA reviewed whether the substantial evidence compelled the TC's result.  COA held although objective medical evidence could support a finding of disability, it did not compel such a finding.  Therefore, the TC erred.

CA gave TC a slap on the wrist with this statement:  “While we are reluctant to micromanage the implementation of the agreement, and recognize that due respect must be afforded the trial court in the exercise of its discretionary power, the circuit court’s failure to implement the … opinion of this court must also be considered.”  TC reversed.

Husband and Wife separated 13 years prior to obtaining divorce decree.  Husband acquired during the separation period three retirement and investment accounts valued at nearly $500,000.  Their 2 children initially both lived with Wife as PRC, but they eventually both went to live with Dad as PRC.  TC ordered that Mom would receive only 17% of one of the accounts, as she was PRC to the children for this portion of the duration of the marriage, and this was the only account Husband had received at that time. 

On appeal, Mom argued that TC failed to consider all the “relevant factors” for division of the marital estate in “just proportions,” specifically arguing that TC did not consider Husband’s greater financial resources nor did they properly consider her contribution to the “marital foundation” that enabled Husband to accumulate the retirement accounts.  As to Wife’s first argument, CA reminded Wife that there is no presumption of an equal division of the marital estate.  CA found that TC had considered all the factors, and did not find TC’s emphasis on timing of Husband’s acquisition of the funds to be an abuse of discretion.  As to Wife’s second argument regarding her contribution to the “marital foundation,” CA reminded Wife that this theory had been rejected by CA in 2000.  TC affirmed.

Sizemores constructed driveway over portion of Bruner's land prior to Bruner purchase.  Sizemores claimed that they owned land by adverse possession but TC held that taking not hostile because Sizemore's believed they owned land.  COA vacates and remands holding that "mistake" does not prevent from being adverse, that intent (ie. did possessor make improvements or otherwise hold property as his own) during time of possession is controlling.

PENICK   V. UNITED PARCEL SERVICE
WORKERS COMP – PREEXISTING ACTIVE DISABILITY

The claimant had shoulder pain beginning at work, which was determined to be a tear of the rotator cuff.  However, the treating physician testified that the tear itself pre-existed the injury date.  She also testified that the impairment rating which she gave would have been the same prior to the reported injury at work.  The ALJ found that the claimant had no impairment attributable to the work related injury.  The claimant appealed, arguing that because he was working, the condition was dormant prior to the injury.  The Board and the Court of Appeals affirmed, holding that since the 1996 changes in the law, the determination of disability is now not an occupational or vocational issue, but strictly an issue of impairment rating.  Since the physician had testified that the impairment rating pre-existed the injury, it follows that disability pre-existed the injury.  A careful analysis of the A.M.A. Guides would have revealed that a rating should not be assessed for a condition which is not causing symptoms,and that might have convinced the doctor that some or all of the impairment was related to the injury.

TECUMSEH  PRODUCTS  V.  ASHER
WORKERS COMP  - TRIPLE MULTIPLIER

This case makes a significant change in the interpretation of KRS 342.730(1)(b), which states that if the claimant is unable to perform the work she was doing at the time of the injury, due to the effects of the injury,  she is entitled to a three time multiplier of her weekly partial disability benefit.  Because of the Supreme Court’s decision in Highland Heights Volunteer Fire Department v. Ellis, which held that the relevant inquiry when determining the work performed at the time of the injury is the work where the employee earned her average weekly wage, the application of the triple multiplier was erroneous.  Asher had been a shipping clerk, but transferred to the machine shop shortly before she was injured.  Thus the machine shop had virtually no impact on her average weekly wage, and the work she was performing there was not the work where she earned her average weekly wage.  Since she could perform the prior work of a shipping clerk (apparently, no longer available to her), the Court reversed on the application of the triple multiplier.  Ed. Note: This is a broad interpretation of Ellis, and does not agree with the plain wording of the statute.  The statute says that the relevant inquiry is the work performed at the time of the injury.  Average weekly wage is determined based on the prior year of wages.  Ellis was a case in which the employee held two jobs at the time of the injury, and is clearly distinguishable.