COA 2009 Minutes: Nov. 6, 2009 (Nos. 1137-1153)

COA 2009 Minutes: November 6, 2009 (Nos. 1137-1153)

  • 17decisions
  • 5 published

PUBLISHED DECISIONS WITH LINKS TO FULL TEXT

1140 APPEALS (FAILURE TO DOUBLE SPACE AND PAGINATE PROPERLY); TORTS (DEFAMATION)(PRO SE APPEAL)
HAWKINS V. MILLER
OPINION AFFIRMING
** ** ** ** ** BEFORE: ACREE, TAYLOR AND THOMPSON, JUDGES.
ACREE, JUDGE: Duane Hawkins, pro se, appeals from the March 19, 2008,
dismissal by the Jefferson Circuit Court of his defamation action
against Eric Miller, Robert Illiff, and Sherman Hart, his former
supervisors and managers at American Commercial, Inc. (ACI). We affirm.

1142 CONTRACTS
CANCELLATION OF DEBT BY FILING Internal Revenue Service (I.R.S.) Form 1099-C
LIFESTYLES OF JASPER INC. V. GREYMORE
OPINION REVERSING AND REMANDING
** ** ** ** ** BEFORE: KELLER, STUMBO, AND VANMETER, JUDGES.
VANMETER, JUDGE: Lifestyles of Jasper, Inc. (Lifestyles) appeals from an order of the Calloway Circuit Court affirming the Calloway District Court’s order sustaining Nikki Acuff’s garnishment challenges and vacating the default judgment in favor of Lifestyles. Lifestyles’ motion for discretionary review was granted by this court for the limited purpose of determining whether Lifestyles’ filing of Internal Revenue Service (I.R.S.) Form 1099-C evinced cancellation of Acuff’s debt. For the following reasons, we reverse and remand for further proceedings consistent with this opinion.

1144 – TORTS
OUTRAGE AS PART OF EMOTIONAL DISTRESS IN MED MAL CLAIM
CHILDERS V. GEILE
OPINION AFFIRMING
APPELLEES
** ** ** ** ** BEFORE: LAMBERT AND STUMBO, JUDGES; HENRY,1 SENIOR JUDGE.
STUMBO, JUDGE: Tanya A. Childers and Jeffrey J. Childers appeal from an Order of the Montgomery Circuit Court sustaining the Summary Judgment motion of Sandra F. Geile, M.D. and Marshall Emergency Services Associates, P.S.C. In granting the motion, the circuit court determined that the Childerses could not prosecute a claim for the tort of outrage because damages for emotional distress were already recoverable via a claim for medical negligence. The Childerses now argue that the Kentucky Supreme Court has consistently held that the tort of outrage may co-exist with the traditional common law tort of negligence, and that the circuit court erred in failing to so rule. For the reasons stated below, we affirm the Order on appeal.

1145 – MEDICAL NEGLIGENCE
INFORMED CONSENT, SUMMARY JUDGMENT
MOORE V. ST. JOSEPH HEALTHCARE, INC.
OPINION AFFIRMING
** ** ** ** ** BEFORE: STUMBO, THOMPSON, AND WINE, JUDGES.
APPELLEE
STUMBO, JUDGE: Russell Moore and Tierni Moore appeal from an Opinion and Order of the Fayette Circuit Court granting Summary Judgment in favor of Saint Joseph Healthcare, Inc., d/b/a/ Saint Joseph Hospital. The Moores filed the instant action against Saint Joseph alleging that it was negligent in failing to obtain the informed consent of Mr. Moore before giving him a thrombin injection, and that Mrs. Moore suffered a loss of consortium resulting from the alleged negligence. The Moores contend that the circuit court erred in granting Saint Joseph’s motion for Summary Judgment because KRS Chapter 304 required Saint Joseph to obtain Mr. Moore’s consent prior to administering the thrombin injection, and because genuine issues of material fact on that issue remain for adjudication. We are persuaded by the circuit court’s determination that Saint Joseph was not required to obtain Mr. Moore’s written consent because no Saint Joseph employee treated Mr. Moore, and because his consent to an ultrasound compression procedure included his consent to a thrombin injection. Accordingly, we affirm the Opinion and Order on appeal.

1146 – WORKERS COMPENSATION
FAILURE TO REOPEN AWARD, SEPARATE MEDICAL FEE DISPUTE UNTIMELY
TOYOTA MOTOR MANUFACTURING, KENTUCKY, INC. V. LAWSON
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: LAMBERT, MOORE, AND VANMETER, JUDGES. MOORE, JUDGE: Toyota Motor Manufacturing USA, Inc., appeals from an opinion and order of the Workers’ Compensation Board, reversing an opinion and order of an Administrative Law Judge (ALJ) finding a knee surgery, proposed by Appellant Stephanie Lawson, to be non-compensable on the ground that it was not reasonable and necessary for the cure and relief of Lawson’s work-related injury. The Board reversed the ALJ based solely upon its conclusion that Toyota had failed, as required, to reopen the underlying award and file a separate medical fee dispute within thirty days of its denial of Stephanie Lawson’s proposed surgery through its utilization review procedure.

In addition to Toyota’s petition, Lawson cross-petitions this Court, arguing the ALJ’s finding that her proposed surgery was unreasonable and unnecessary was not supported by substantial evidence.

As to Toyota’s appeal, finding the Board committed error, we reverse. Regarding Lawson’s cross-appeal, we remand to the Board for further findings.

1152- WORKERS COMP
REOPENING, CONSTRUCTIVE FRAUD ON TRIBUNAL BY EMPLOYER'S INSURER
JOURNEY OPERATING LLC V. ZURICH AMERICAN INS. CO.
OPINION REVERSING
** ** ** ** **
BEFORE: CLAYTON AND THOMPSON, JUDGES; LAMBERT,1 SENIOR JUDGE.
LAMBERT, SENIOR JUDGE: This appeal requires an examination of the authority of a Workers’ Compensation Administrative Law Judge to reopen a final decision to prevent an insurer from carrying out a constructive fraud on the tribunal. As KRS 342.125 provides authority for reopening in such circumstances, we reverse the Workers’ Compensation Board (Board) and reinstate the decision of the Chief Administrative Law Judge (CALJ).

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