Kentucky Law Blog.

This is our/my plan, on the blog for postings - - -

• MONDAY: Lawwire mailing during week before.  All published decisions and selected nonpublished decisions.
• TUESDAY:  Links only to Sixth Circuit Published Decisions for week before.
• WEDNESDAY: Links only to Workers Compensation cases from the week before.
• THURSDAY: Links only to Family Law cases from the week before.
• FRIDAY: Links only to  tort, insurance, and procedural cases from week before.
• Throughout the week, any interesting news notes, charitable events, newsworthy items.
• MONTHLY: Short synopsis from the Kentucky Trial Court Review of the biggest verdict and other verdicts.
• AS PUBLISHED: Tables of contents to LBA Bar Briefs, Kentucky Bench and Bar, and law reviews from each of the 3 state law schools.
• WHEN THE MOOD HITS ME: One-minute CLEs, commentary on news articles in the on-line editions that are law related.

COOPER, J., CONCURS IN PART AND DISSENTS IN PART BY SEPARATE 

OPINION WITH JOHNSTONE AND ROACH, J.J., JOINING THAT OPINION. 

ROACH, J., DISSENTS BY SEPARATE OPINION WITH COOPER AND JOHNSTONE, J.J., JOINING THAT OPINION.

Date: 9/22/2005

This case dealt with a surface mining permit and disturbances on the property by an individual digging a basement and placing a mobile home on the property followed by the cabinet's administrative procedures for cessation. 

Once a Cessation Order is issued and the Notice of Proposed Assessment is given, the administrative hearing procedures for mine operations (permittees) becomes bifurcated under the CABINET's regulations.   
405 KAR 7:092, Section 6, provides that any person issued a proposed penalty assessment may file a petition for review of the proposed assessment within thirty (30) days of the receipt of the proposed assessment or the mailing of the conference officer's report. A parallel process exists under 405 KAR 7:092, Section 7, which allows an operator to have a formal review of any fact-of-violation. However, these are two (2) separate (parallel) administrative procedures, one based upon the assessment amount while the other is based upon the question of whether there was in fact, a violation.  KENTEC pursued both avenues, lost each; and appealed.

"In Franklin v. Natural Resources and Environmental Protection Cabinet, 799 S.W.2d 1 (Ky.1990), we found a similar CABINET hearing procedure unconstitutional, wherein we held, "this regulation which denies the due process hearing to an aggrieved party based solely on his financial inability to pay the penalties which he seeks to appeal is unconstitutional, in violation of the equal protection clauses of the United States and Kentucky Constitutions." "

Date: 9/22/2005

Perceiving an inconsistency in the respective decisions of the Court of Appeals, SC granted discretionary review of both cases.

A highway authority is not automatically liable every time a motorist drives his vehicle off the traveled portion of the highway and strikes a roadside hazard. Nor does the failure to follow design guidelines, such as those recommended by AASHTO or the Warrants & Guidelines , constitute the equivalent of negligence per se (as implied by the Board in the Babbitt case) . Whether the failure to provide warnings or to erect a guardrail at a particular location constitutes negligence on the part of the highway authority is a fact-intensive inquiry for which the various design guidelines, as well as available funds and cost effectiveness, may be considered . If a determination is made that the failure to provide warnings or to erect a guardrail constitutes negligence, the factfinder must then determine from the evidence whether the presence of warnings or a guardrail would have prevented or reduced the damages sustained by the claimant and apportion liability in accordance with KRS 411 .182.

In Babbitt, the Board reached contradictory conclusions with respect to the issue of the Cabinet's negligence and an erroneous conclusion that Judy Logsdon's negligence was a superseding cause. It made no findings with respect to the missing rumble strips and right edge line. In Taylor, the Board misinterpreted Shadrick as completely exonerating the Cabinet when the hazard is in plain view and the driver is contributorily negligent, compelling the erroneous conclusion that Sherry Taylor's own negligence obviated any need to consider whether the Cabinet had a duty to erect a guardrail at M .P. 5 .620 and, if so, whether its failure to do so contributed to cause Taylor's death, which would require an apportionment of damages.

WINTERSHEIMER, J., DISSENTS BECAUSE THE DISCOVERY VIOLATION DID NOT REQUIRE A MISTRIAL AND VACATION IS UNWARRANTED

Date: 9/22/2005

Appellant was convicted of first-degree stalking, fourth-degree assault, and two counts of second-degree unlawful imprisonment. He was sentenced to four years' imprisonment. On appeal, the Court of Appeals held that a discovery violation and an error with regard to the instructions on the misdemeanor charges warranted reversal of the unlawful imprisonment and assault convictions . However, the court affirmed the felony first-degree stalking conviction .

Supreme Court granted Akers' motion for discretionary review to consider two issues: (1) whether the discovery violation also warrants reversal of the felony stalking conviction, and (2) whether Akers was denied his right to peremptory challenges by the trial court's refusal to excuse a juror for cause. Affirmed in part, and reversed in part.

When the Commonwealth called Trooper White to the stand, he testified as to the injuries Ranie sustained on her leg from being dragged across the gravel driveway. On cross-examination, defense counsel attempted to impeach Trooper White with the uniform offense report he completed, in which he checked the box indicating "no injury." Trooper White thereafter explained that the report defense counsel was referring to was for the unlawful imprisonment charge and, in fact, there was a separate report for the assault charge on which he did mark the injury box.  This separate report had not been disclosed to the defendant.

Had Trooper White testified only as to the false imprisonment report, the case would have simply been a "he said/she said" situation . However, once Trooper White confirmed the existence of the second undisclosed report, defense counsel's ability to cross-examine him was essentially eviscerated . Anderson v. Commonwealth, 864 S .W .2d 909 (Ky. 1993); Barnett v. Commonwealth, 763 S.W.2d 119 (Ky. 1988).

Moreover, because all of the charges stemmed from the single incident, Akers ability to defend against any of them, not merely the assault charge, was substantially impaired. 

The trial court has broad remedial powers under RCr 7.24(9). As we noted in Weaver v. Commonwealth, 955 S.W.2d 722, 725 (Ky. 1997), "(a) discovery violation justifies setting aside a conviction 'only where there exists a reasonable probability that had the evidence been disclosed the result at trial would have been different ."'  Here, the Commonwealth's failure to disclose Trooper White's assault report prejudiced Akers' ability to prepare a defense. Defense  counsel labored under a misconception that there was no physical evidence.  All of Akers' convictions must be reversed .

Following defendant's retrial, he appealed  asserting the following claims of error: (1) admission of certain hearsay statements in violation of his Sixth Amendment right to confrontation ; (2) insufficiency of the evidence to support his convictions ; (3) denial of his motion for a continuance for the purpose of obtaining an independent competency evaluation; (4) failure to hold a competency hearing after ordering that a competency evaluation be performed by the Kentucky Correctional Psychiatric Center (KCPC) or its designee ; and (5) failure to declare a mistrial after the prosecutor introduced evidence of Appellant's other bad acts .

A declarant's fearful statements over the telephone that a crime may occur do not alone establish "circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial . . . . .. Crawford, 541 U .S. at 52, 124 S .Ct. at 1364. The statements at issue here were not testimonial in nature, thus not within the type of hearsay absolutely precluded by Crawford .

There was sufficient circumstantial evidence to support the jury's conclusion that Appellant murdered Audrey Bray and Effie York.  Circumstantial evidence can suffice to support a criminal conviction . Baker v. Commonwealth , 860 S .W.2d 760, 761 (Ky. 1993) . A conviction may be obtained upon circumstantial evidence when the evidence taken as a whole is of such character that a jury would not be clearly unreasonable in concluding that a person is guilty beyond a reasonable doubt. Bussell v. Commonwealth, 882 S.W.2d 111, 114 (Ky. 1994) . The same standard applies regardless of whether a case involves direct or circumstantial evidence. Commonwealth v. Collins, 933 S.W.2d 811, 815 (Ky. 1996).

Because the two psychological opinions were virtually identical, except that Deland's was more emphatic, and because Appellant was deemed competent after a hearing on Sivley's opinion, a reasonable judge would have no reason to further doubt Appellant's competency. See Pate v. Commonwealth , 769 S.W .2d 46, 47 (Ky. 1989) ("There is no right to a continual succession of competency hearings in the absence o f some new factor .") .

Cotenant can authorize search.

A request to proceed pro se or with counsel in a limited fashion must be timely and unequivocal. In the case at bar, Appellant's request was timely and unequivocal considering the circumstances under which the request was made. A request for hybrid representation is timely if made before meaningful trial proceedings have begun. Appellant proffered his request in the trial judge's chamber before the jury was selected. Although an earlier request would have been preferable, the request was made before any part of the trial had begun. Therefore, the request was timely.

A defendant who requests disclosure of the identity of an informant must first make a proper showing that an exception applies. See Schooley v. Commonwealth, 627 S.W.2d 576 (Ky. 1982). Once Appellant has made such a showing, the burden would shift to the Commonwealth to overcome this inference. See United States v. McManus, 560 F.2d 747 (6th Cir. 1977). Factors a court would normally consider include whether the informant's life would be in danger were his identity revealed or if he is needed for other undercover work, etc.

A proper determination cannot be made regarding the KRE 508 privilege without the trial court conducting an "in camera" hearing. Case remanded to the trial court for the limited purpose of holding a KRE 508 "in camera" hearing consistent with this opinion.

When Ms. Griffey's testimony (child's mental health counselor) is considered in its entirety, the Supreme Court found the trial court did not abuse its discretion when it found the content of the testimony to be sufficient to support a finding of compelling need for each child.

The court may, on the motion of the attorney for any party and upon a finding of compelling need, order that the testimony of the child be taken outside the courtroom and be recorded for showing in the courtroom before the court and the finder of fact in the proceeding.

KRS 421.350(5) defines "compelling need" as "the substantial probability that the child would be unable to reasonably communicate because of serious emotional distress produced by the defendant's presence." Appellant contends the trial court erred when it allowed the children to testify by video deposition (which was later played to the jury at trial) pursuant to a finding of compelling need under this statute. A trial court's finding of compelling need pursuant to KRS 421.350 is reviewed for abuse of discretion. Danner v. Commonwealth, 963 S.W.2d 632, 634 (Ky. 1998).

COOPER, J., CONCURS IN PART AND DISSENTS IN PART BY SEPARATE OPINION WITH JOHNSTONE, J., JOINING THAT OPINION.

ROACH, J., DISSENTS BY SEPARATE OPINION WITH GRAVES AND 

WINTERSHEIMER, JJ., JOINING THAT OPINION. WINTERSHEIMER, J., DISSENTSBY SEPARATE OPINION.

Date: 9/22/2005

The appeal from a murder conviction dealt with motive evidence under KRE 404(b)(1).   

First,   the testimony of Donald Oakes, as to his sexual abuse by the Appellant, both prior to, and after the disappearance of Marlene Major, was appropriate and admissible under KRE 404(b)(1) as proof of "motive."   

Second, however, Oakes'  testimony about Appellant beating him after his interview by the police officers is evidence which is recognized as "an expression of a sense of guilt." Rodriguez v. Commonwealth, 107 S.W.3d 215, 219, 220 (Ky. 2003). The jury could well believe the beating was designed to cover up evidence of Appellant's guilt or to prevent further disclosures.

Third, however, the testimony of the daughter, Lalona Bramble, as to her sexual abuse, though terrible, had no relevance to the issues involved in the murder; nor could it be said to be so "inextricably intertwined" with the other evidence as to have necessarily been admissible. "The key to understanding this exception is the word inextricably. The exception relates only to evidence that must come in because it is so interwoven with the evidence of the crime charged that its introduction is unavoidable." Funk v. Commonwealth, 842 S.W.2d 476, 480 (Ky. 1993). The abuse of Lalona Bramble did not occur until after the disappearance of Marlene Major and then, only sometime after they relocated to Rhode Island. There is simply nothing in the evidence from which we could conclude Lalona's abuse was in anyway tied to the motive for the murder of Marlene. Nor does it supply, or support, any other reasonably related issue.

COOPER, J., CONCURS IN A SEPARATE OPINION IN WHICH JOHNSTONE, J., JOINS. SCOTT, J., DISSENTS IN A SEPARATE OPINION IN WHICH LAMBERT C., AND WINTERSHEIMER J., JOIN.

Date: 9/22/2005

Appellant  asserts error with respect to the trial court's question regarding whether the jurors had any "moral or religious or conscientious objections that would prevent" consideration of the death penalty as a punishment. Appellant argued such an inquiry violates the jurors' rights to religious freedom under the Kentucky and United States Constitutions. This issue was not preserved and is raised by Appellant as palpable error under RCr 10.26. Appellant concedes that we addressed and rejected essentially the same argument in Parrish v. Commonwealth, 121 S.W.3d 198, 202 (Ky. 2003) ("There was no violation of any provision of either the federal or state constitutions" when the trial court asked each prospective juror "if they held any moral, religious, spiritual or personal beliefs that would interfere with their service as jurors on this death penalty case."), but nonetheless urges reconsideration of the issue.  After careful review, SC held the totality of the circumstances in this case do not compel reconsideration of this issue and thus, no palpable error in the trial court's voir dire question.

Appellant's motion for a directed verdict of acquittal failed to specify any grounds for the motion. CR 50.01 states, in pertinent part, "[a] motion for a directed verdict shall state the specific grounds therefor."   CR 50.01 has been previously applied to criminal cases and have held that its requirement of "specific grounds" must be followed to preserve for appellate review a denial of a motion for a directed verdict of acquittal.

A trial court, on a motion for directed verdict, must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given such testimony. Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991).

Because the trial court overruled Appellant's motion for an evidentiary hearing on whether he was entitled to the mental retardation exemption, the issue becomes whether Appellant has produced "some  evidence creating a doubt as to whether he is mentally retarded," so as to entitle him to an evidentiary hearing. Bowling, 163 S.W.3d at 384.  While the evidence was insufficient to entitle Appellant to a directed verdict on the issue, as he claims on appeal, it was sufficient to entitle Appellant to an evidentiary hearing and a determination of the issue by the trial court. Compare Bowling, 163 S.W.3d at 384, where the lowest I.Q. measurement in the record was 79.

Appellee, H . Dennis Halfhill, a deputy sheriff with the Kenton County Sheriffs Office, sought and was denied disability retirement benefits' after he was injured in an automobile accident in the course of his employment. A former Kentucky Administrative Regulation barred disabled state employees from being eligible for disability retirement benefits if they were independently eligible for unreduced normal retirement benefits . It mandated that the employee accept the "non-disability" normal retirement benefits in lieu of claiming disability retirement.

Without further evidence establishing that the above stated intent is somehow irrational or is otherwise clearly a pretext for age discrimination based primarily on "inaccurate and stigmatizing stereotypes," we find that evidence simply showing the regulation was issued as a "corrective" measure in response to a challenge by the EEOC is insufficient, in and of itself, to establish that Kentucky Retirement had a discriminatory motive when it enacted the former regulation .

Without sufficient evidence to establish proof of discriminatory motive by Kentucky Retirement, Halfhill's claim of disparate treatment under KRS 344.040 must fail . Accordingly, SC reversed the Court of Appeals and reinstated the trial court's verdict.

In this case, Tennessee declined to hear a motion offered by Ms. Goff to establish child support payments . It also dismissed her divorce case .   In its order dismissing, the Tennessee court impliedly declined jurisdiction to determine child custody. Upon dismissal, there was no longer a vehicle by which the Tennessee Court could adjudicate any issues between the parties. In the "agreed" decree of dissolution of marriage of March 3, 1997, the Kentucky court determined that Ms. Goff "is a fit and proper person to have the care and custody and control of the parties' infant child." The refusal of the Tennessee court to hear the child support motion and dismissal of the case amounts to clear communication from the Tennessee court that it was refusing to exercise jurisdiction over the child custody matter . In light of the requirement that courts communicate a clear intent or reason for declining jurisdiction, the  record is sufficient. Therefore, the Tennessee court effectively declined jurisdiction, thereby authorizing Kentucky to assert jurisdiction pursuant to KRS 403.420(1)(d) . Therefore, the decision of the Court of Appeals on this issue is affirmed.

The second issue is whether Kentucky has continuing jurisdiction to modify a custody order. At the time a party seeks modification, KRS 403.420(1)(a)-(d) must apply as the jurisdictional requirements of the UCCJA apply to all cases regardless of whether the custody order originated in Kentucky or another state or foreign court.   That threshold determination required by the UCCJA to establish Kentucky jurisdiction is likewise required to modify an order even of its own making. Mr. Goff's request for change in custody can only be considered when the circumstances covered by the UCCJA are present.

The child was born in Tennessee and Tennessee is the child's home state . Therefore, Kentucky does not have continuing jurisdiction to modify custody. At the time modification was sought, Tennessee was unquestionably the home state of the child and Kentucky courts were without custody modification jurisdiction .

JOHNSTONE, J., DISSENTS BY SEPARATE OPINION IN WHICH SCOTT AND WINTERSHEIMER, JJ., JOIN.

Date: 9/22/2005

After Paul's divorce petition was filed, but prior to service of process, Lisa obtained a district court custody and support order in conjunction with a domestic violence proceeding. Neither party took any action on the case for several months, but on June 12, 2000, pursuant to Paul's motion, the district court purported to vacate its support order and send the case to circuit court.

Thereafter, in August 2000, Lisa moved the circuit court to set child support and this was ultimately, albeit not expeditiously, accomplished . Moreover, the final circuit court judgment relative to child support purported to vacate the district court support order.  Thus, we have a district court support order arising out of a domestic violence proceeding that was subsequently vacated by the district court and that was also  subsequently vacated, expressly or by implication, by the circuit court when it set child support from December 1999 .

From these facts the issue that emerges is whether a child support order rendered by a district court, ancillary to a domestic violence proceeding, may be retroactively modified by the rendering court or by a circuit court in a dissolution proceeding. In other words, was the district court order of December 1999 subject to subsequent eradication, and elimination of the accumulation of child support at $500.00 per week from December 1999 until June 12, 2000?

This case well illustrates the desirability of having all matters relating to a family's domestic conflicts handled by the same court. This case began in circuit court, orders were entered in district court, hearings were held before commissioners in circuit court, and orders and judgments were rendered by the circuit court.  The complex  and contradictory nature of this proceeding would likely have been eliminated if a single judge presiding over both the district court and circuit court elements of the case had conducted all proceedings as is done in family court .

WINTERSHEIMER, J., DISSENTS BY SEPARATE OPINION, WITH LAMBERT, C.J., AND SCOTT, J., JOINING THAT DISSENTING OPINION.

Date: 9/22/2005

The appeal dealt with the testimony of an attorney in an unrelated matter identifying other procedures or bad faith actions of the insurance company as evidence in the current bad faith claim and with punitive damages.  The court ruled solely on the inadmissibility of the testimony and reversed the COA so there was no need to address the punitive damages.

This was a 4 to 3 decision with newly appointed Justice Roach siding with the majority in an opinion of the court.  A vigorous dissenting opinion was filed.

This was a bad faith case against KFBM, and the plaintiff offered testimony by an attorney representing another claimant against KFBM in an unrelated matter who described the bad faith response to KFBM in his case (a/k/a the Raines testimony or matter involving Mabel Raines v. KFBM).  

The mere fact that this testimony was relevant for another purpose does not remove it from the purview of Campbell or KRE 404(b) . The Raines evidence that tended to show the ineffectiveness of Hibberd's "proper demand letter" was not admissible for the purpose of proving Farm Bureau's bad faith in this case by showing that it had acted in bad faith in another case . Rather, the evidence was admissible only to impeach the credibility of Hibberd's expert opinion about the efficacy of detailed demand letters in aiding insurance companies to process claims in a more timely and fair manner. Such impeachment testimony is not proscribed by Campbell or KRE 404(b) . "The credibility of a witness' relevant testimony is always at issue, and the trial court may not exclude evidence that impeaches credibility even though such testimony would be inadmissible to prove a substantive issue in the case." Sanborn v. Commonwealth , 754 S.W.2d 534, 545 (Ky. 1988). Professor Lawson echoed this sentiment when he noted that "[a] wide array of evidence is admissible only because it renders testimonial credibility more probable or less probable than it would without the evidence." Lawson, supra, § 5.05[3], at 82. However, since the Raines evidence was  admissible only for this limited purpose and was inadmissible for the purpose of obtaining punitive damages or proving action by Farm Bureau in conformity with other wrongful acts, an admonition, if requested, should be given if the same evidence is offered for impeachment purposes upon retrial.  COA reversed and remanded for new trial.

COOPER, J., DISSENTS BY SEPARATE OPINION WITH ROACH, J., JOINING THAT OPINION EXCEPT FOR ITS RELIANCE ON SECTION 2 OF THE CONSTITUTION OF KENTUCKY.

Date: 9/22/2005

The requirement that loss be fortuitous, i.e. not intended, is a concept inherent in all liability policies.

Fortuity "must be judged using a subjective standard, because requiring this knowledge element best serves the overall principle of insurance law." Aetna Cas. & Sur. Co. v. Dow Chemical Co., 10 F.Sugg.2d 771, 789, (E. D. Mich. 1998) (internal quotes and citations omitted). "The crucial issue is whether [the insured] was aware... of an immediate threat of the [injury] for which it was ultimately held responsible and for which it now seeks coverage, not the [insured's] awareness of its legal liability for that [injury]." Id. at 790.

We also find the Commonwealth's proffered instruction to more accurately state the law as spoken to in Brown Foundation, supra. In Brown Foundation, this Court addressed the issue of fortuity regarding a claim for insurance coverage. The case mirrors the case at hand in that it involved insureds seeking coverage to pay for an environmental cleanup ordered by the EPA pursuant to CERCLA. We held the Foundation was entitled to coverage under its policies unless it had specific and subjective intent to cause the pollution giving rise to the CERCLA claims. Equating the reasoning of Brown to the case at hand, the Commonwealth and US Ecology are entitled to insurance coverage unless they specifically and subjectively intended to cause the migration of radioactive contamination.

Comment.  Although the law on this topic is clear, it is surprising the Court would have affirmed the summary judgment since a genuine issue of material fact existed on the signing of the release.

ROACH, J., CONCURS BY SEPARATE OPINION, WITH GRAVES, J., JOINING THAT CONCURRING OPINION

Date: 9/22/2005

Supreme Court REVERSED Thompson v. Thompson , 264 S.W.2d 667 (Ky . 1954) and now hold that a parent could maintain an action in tort against his or her unemancipated minor child for injuries arising out of the child's negligent operation of a motor vehicle . SC now concluded Kentucky should depart from this aspect of intra-family immunity, and overrule Thompson.

This action arose from a car dealer's attempt to repossess a vehicle it had sold.  One of the dealer's employee's discovered the car and the putative buyer on the road and jumped out and shot the tires.  An assault and batter charge plus some criminal charges ensued.  The issues is the employer's liability under respondeat superior.  [Note Justice Roach provides a good 'One Minute CLE" in this case on the law and rationale of respondeat superior.]  The Supreme Court reversed the COA and reinstated the jury verdict holding the dealership liable under respondeat superior.

The most prominent alternative to the foreseeability standard is the principle that an action is only within the scope of employment when the employee intends to further the employer's business or advance the employer's goal. Prosser and Keeton state that "in general . . . . the master is held liable for any intentional tort committed by the servant where its purpose, however misguided, is wholly or in part to further the master's business." Prosser and Keeton at 505. In explaining this principle, they offer the following example of the rule in action

Thus a railway ticket agent who assaults, arrests or slanders a passenger, in the belief that he has been given a counterfeit bill for a ticket, is within the scope of employment, although the employer has not authorized such conduct, or has even expressly prohibited it. But if he acts from purely personal motives, because of a quarrel over his wife which is in no way connected with the employer's interests, he is considered in the ordinary case to have departed from his employment, and the master is not liable.

The defendant-employer failed to include a "payment adjustment end date," when notifying the Department of Workers' Claims that it was terminating voluntary temporary total disability (TTD) benefits due to the claimant's return to work. For that reason, the Department did not notify the claimant of his right to file an application for benefits and of the applicable period of limitations. An Administrative Law Judge (ALJ) determined subsequently that the employer failed to comply adequately with KRS 342.040(1); therefore, the period of limitations was tolled when the claimant filed his application. The employer maintains that it complied with KRS 342.040(1), that it was unnecessary for the claimant to be informed of the date when benefits were terminated, and that it was the Department that failed to comply with KRS 342.040(1).

In failing to deny the allegations of the claimant's application, the employer thus had admitted that the claimant had sustained "repetitive motion injuries to both upper extremities," that the injuries caused an "inflammatory process," and that they occurred "within the course and scope of her employment." Therefore, the employer effectively admitted that there were objective medical findings of a harmful change, i.e., of an inflammatory process. The admission subjected the employer to potential liability for the inflammatory process, but the burden remained on the claimant to prove the extent of that liability. Roark v. Alva Coal Corporation, 371 S.W.2d 856 (Ky. 1963); Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984); Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979). Acknowledging her burden, the claimant conceded on the BRC memorandum that extent and duration, medical expense payment, and entitlement to TTD remained contested. She has not appealed the decision regarding TTD. She asserts, however, that her unrebutted evidence compelled an award of income and/or medical benefits.

The claimant bears the burden of proving every element of a workers' compensation claim, including causation.  See Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky. 2000).  Even when a worker's death occurs on the employer's premises, the burden is on those seeking compensation to establish that the death was connected to the individual's work in order for it to be compensable.  Enacted effective January 1, 1973, and amended effective December 12, 1996, KRS 342.680 addresses the problem of proving work-relatedness in instances where the injured worker dies and, therefore, is unable to testify regarding an injury.

It authorizes a rebuttable presumption that the injury or death was work-related and precludes an intoxication or suicide defense if there is prima facie evidence that the injury or death was work-related and no substantial evidence to the contrary. The procedural effect of the presumption is to shift to the employer the burden of going forward with substantial evidence that the injury or death was not work-related; however, the burden of proving causation remains on the claimant. See KRE 301; Magic Coal Co. v. Fox, 19 S.W.3d at 95.

If the employer fails to meet its burden, the claimant is entitled to the presumption and prevails on the issue of causation. If the employer does meet its burden, the claimant is not entitled to the presumption of causation and must go forward with evidence that is persuasive enough to convince the ALJ that the injury or death was work-related.

An Administrative Law Judge (ALJ) determined that an injured worker's death was due to multiple drug toxicity and was not causally related to his work. The Workers' Compensation Board (Board) rejected arguments that the finding was erroneous under the positional risk theory and under KRS 342 .680, and the Court of Appeals affirmed the Board . Supremes affirmed.

The decedent/employee sustained a work-related back injury while working for the defendant-employer. He underwent an initial surgery iafter which he filed an application for benefits. He underwent a second surgery  and died, one day after his release from the hospital.  The estate revived the claim and amended it to assert that his death was the result of post-operative medication and was therefore a compensable event.

This appeal is from the judgment of the Court of Appeals, affirming the decision of the Jefferson Circuit Court, except on the jury instruction issue of fortuity. The Court of Appeals reversed on the issue of fortuity and remanded the matter for a new trial consistent with their opinion.

Six separate issues were raised on appeal and cross-appeal by the various parties. These include: (1) whether the Court of Appeals erred in setting aside the jury verdict; (2) whether ANI should be required to reimburse the insureds for the costs of participating in the CERCLA action; (3) whether the costs of site measures are paid "as damages because of property damages" within the meaning of the ANI policies; (4) whether exclusion (f) applies and therefore precludes coverage; (5) whether ANI's policies cover the defense costs incurred in this action; and (6) whether the ANI policies were triggered for the full amount of the limits in effect at any time the property damage at issue was caused without pro-rating the liability .

Examined pocket knife qualifying as a dangerous instrument as opposed to weapon.

Addressed the "Allen Charge" when jury is deadlocked.   The wide discretion previously afforded to trial judges in instructing deadlocked juries has since been superseded by RCr 9.57(1). 

Black letter law on amending indictments:

[A]n amendment must change some substantive element of the indictment in order to prejudice a defendant's substantial rights. Wolbrecht v. Commonwealth, 955 S.W.2d 533, 538 (Ky. 1997); Yarnell v. Commonwealth, 833 S.W.2d 834, 837 (Ky. 1992). We have consistently held that amendments to the dates of offenses in an indictment do not prejudice the defendant's substantial rights when the defense is a mere denial of having committed the offenses at all. See, etc.., Anderson v. Commonwealth, 63 S.W.3d 135,140-41 (Ky. 2001) (holding defendant was not prejudiced by amendment that changed the dates of alleged rape from 1994 to 1992); Gilbert v. Commonwealth, 838 S.W.2d 376, 378 (Ky. 1991); Stephens v. Commonwealth, 397 S.W.2d 157, 158 (Ky. 1965). Other jurisdictions have agreed with this reasoning. See, e.g_, United States v. Goldstein, 502 F.2d 526, 528 (3d Cir. 1974) ("Ordinarily, a mere change in dates is not considered a substantial variation in an indictment. .. ."); State v. Bruce, 610 P.2d 55, 57 (Ariz. 1980) (amendment held not prejudicial even though it prevented defendant from pointing out conflicts in testimony); State v. McCoy, 337 So.2d 192, 195 (La. 1976) (same); Baine v. State, 604 So.2d 258, 261 (Miss. 1992) ("Unless time is an essential element or factor in the crime.. .. an amendment to change the date on which the offense occurred is one of form only."); McLean v. Maxwell, 208 N. E.2d 139, 140 (Ohio 1965) (amended indictment that changed date of alleged offense by six months did not prejudice defendant despite destroying defendant's alibi that he was imprisoned at time alleged in original indictment).

Black letter law:

It has been generally held that hearsay in the form of prior consistent statements of a victim is not admissible if those statements are offered for the purpose of bolstering the victim's testimony. Smith v. Commonwealth, 920 S.W.2d 514, 517 (Ky. 1995) (citing Eubanks v. Commonwealth, 210 Ky. 150, 275 S.W. 630, 633 (1925)). However, where the prior consistent statement is offered "to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive," the statement is not excluded by the hearsay rule. KRE 801A. * * *

Notably, the witnesses in this case did not "repeat the [victim's] story as told to them." See Bussey v. Commo