This week’s decisions announced and posted by the Court of Appeals in their weekly minutes may not yet be final. Please note that you will have to check Case Information for each decision for finality, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.
Published Court of Appeals Decisions
Here are the links to the full text of each published case for this week with a short synopsis.
697. Business. Mortgages
Keybank National Association vs. Allen
Court of Appeals Published Opinion REVERSING AND REMANDING Jefferson Cir Ct. Final judgement dismissing action regarding whether KeyBank could properly file an action seeking a personal judgment against George R. Allen for default on a promissory note which accompanied a junior mortgage, after KeyBank failed to appear to defend its interests in a prior foreclosure action of the senior mortgage on the property.
698. Dismissal. Recusal of Judge
Adkins v. Wrightway Readymix LLC
Court of Appeals Published Opinion AFFIRMING Pike Cir Ct order of dismissal of pro se claimant and denial of motion to recuse
Given the dearth of evidence of bias on the part of the trial judge, and the language of Dean v. Bondurant, coupled with Adkins’ procedural waiver, this Court cannot conclude that the trial judge acted arbitrarily, unreasonably, unfairly, or that the decision lacked support from sound legal principles. The trial court, therefore, did not abuse its discretion.
707. Workers Compensation. WCB exceeding authority. Subrogation and personal liability policy.
Fresnius Medical Care Holdings, Inc. v. Mitchell
Court of Appeals Published Opinion AFFIRMING IN PART AND REVERSING IN PART Workers Comp Board decision
Husband and wife returning from work meeting when husband had MVA with wife severely injured. Wife later divorced husband and settled liability and other insurance claims. This appeal addressed the workers compensation claims and subrogation arising from ALJ order that made findings and conclusions on several issues, but this appeal only pertains to four issues. The first issue is Mitchell’s impairment rating, which the ALJ concluded was 51%, based primarily on the testimony of Dr. Warren Bilkey. The second issue was whether Fresenius was entitled to a statutory reduction in the benefits awarded to Mitchell based on her failure to wear a seatbelt, which the ALJ declined to impose. The third issue was the calculation of Mitchell’s permanent partial disability (“PPD”) benefits. The final issue was whether Fresenius was entitled to a subrogation credit against Mitchell’s tort recovery, and, if so, the calculation thereof. The ALJ determined that Fresenius was not, as a matter of law, entitled to subrogation credit, but nevertheless proceeded to perform calculations related to the amount of the subrogation credit. On reconsideration, the ALJ issued another ruling, though the only change made by the ALJ was to increase the length of time for which Mitchell would be entitled to future lost wages in PPD, and then recalculate the total award accordingly.
Both parties then appealed different aspects of the ALJ’s ruling to the Workers’ Compensation Board (hereinafter “the Board”). The Board reversed and remanded the ALJ’s ruling as it related to Mitchell’s impairment rating. The Board affirmed the ALJ’s ruling as it related to the denial of the reduction of benefits for failure to wear a seatbelt. The Board reversed on the issue of Fresenius’s entitlement to a subrogation credit and also as to the calculation thereof. These appeals followed.
The board exceeded its authority in remanding the matter to the alj on the issue of impairment rating associated with the eye injury. While the record established an eye injury and permanent symptoms resulting therefrom, including loss of ocular motility and visual acuity, the ALJ justified the ruling on the basis that even Bilkey was unsure whether Taylor’s assessment had been consistent with established AMA guidelines. The ALJ’s ruling did reject the uncontested medical proof, but provided sufficient justification. The Board inappropriately substituted its judgment for that of the fact-finder when remanding the issue for further proceedings.
The board acted appropriately when affirming the ALJ’s ruling as it relates to the penalty provision of krs 342.165(1).
Fresenius is not entitled to a subrogation credit against mitchell’s tort recovery. Mitchell argued before both the ALJ and the Board that Fresenius should not be entitled to a credit against her recovery in the civil action. Indeed, the Kentucky Supreme Court held in State Farm Mut. Ins. Co. v. Fireman’s Fund American Ins. Co., 550 S.W.2d 554 (Ky. 1977), that because an insured has no obligation to his or her employer’s compensation insurance carrier to insure a personal vehicle, then the compensation insurance carrier has no right to the proceeds of the employee’s personal policy. Mitchell also advanced a policy-based argument that Todd should be considered a first party within the meaning of KRS 342.700. This is consistent with long-standing common law doctrine of unity of person in marriages, whereby a “husband and wife… constitute[e] in law but one person.” While Mitchell and Todd were not married at the time of the civil action, they were married at the time of the crash and share a child in common. The evidence reflected that Mitchell paid the majority of the premiums securing the policy through their joint account, and it was not a benefit of her employment. We agree with Mitchell that Todd, for the purpose of the tort action, was a first-party insured rather than a third-party tortfeasor.
710. Civil Rights Claim barred by the intracorporate conspiracy doctrine.
Cowing v. Commare
Court of Appeals Published Opinion AFFIRMING Fayette Cir Ct. order dismissing claim.
715. Workers Compensation. Lay testimony on causation.
Flat Rock Furniture v. Neeley
Court of Appeals Published Opinion AFFIRMING WCB
We agree with the Board and Neeley that the ALJ properly relied upon this record because it substantially complied with the applicable regulations. While the document did not contain a statement of qualifications or index number for Dr. Sanders, this information was included in a separate filing by Flat Rock. In addition, the handwritten portion of the record was legible. Therefore, we find no error in the ALJ’s reliance on this medical record.
In the present case, the ALJ found that Neeley’s lay testimony and Dr. Sanders’ expert medical evidence were “consistent, credible, persuasive and compelling.” He relied upon Dr. Van Meter’s expert opinion for the date on which Neeley reached MMI and upon Dr. Sanders’ testimony for causation. The ALJ also relied upon Neeley’s own testimony to determine that he was permanently and totally disabled. He considered such factors as Neeley’s age, the competitive nature of the job market, his lack of specialized or vocational training, Neeley’s testimony of the problems he has with his vision in both eyes, and his inability to be able to find regular, gainful employment. We acknowledge that this issue is a close call, as Flat Rock correctly points out that no physician assigned any permanent restrictions after Neeley had reached MMI. However, as the Board held and the case law supports, lay testimony is sufficient in this instance to support the ALJ’s finding that Neeley was permanently and totally disabled. Therefore, we affirm the Board’s opinion on this issue.
Baciomiculo LLC v. Nick Bohanan LLC
Court of Appeals Published Opinion REVERSING AND REMANDING Jefferson Cir Ct. summarily dismissing its claim of conversion against Nick Bohanon, LLC, and Nick Bohanon (collectively “the Bohanon Defendants”).
Selected Non-Published Decisions Dealing with tort, insurance and civil procedure:
705. Negligence (against physical therapist)
Jennings v. Drayer Physical Therapy PLLC
COA Not to Be Published Opinion AFFIRMING Fayette Cir Ct. order dismissing negligence claims against therapist.
706. Summary judgement affirmed. Discovery.
Walling v. Safeco Insurance Company of Illinois
COA Not to Be Published Opinion AFFIRMING Jefferson Cir Ct. summary judgement dismissing case finding. Walling claims that summary judgment was granted in error because he did not have sufficient time to conduct discovery and that he was not given adequate information about the scope of his coverage.