COA 2010 Minutes June 11, 2010 (Nos.548-563)(Plus the ‘Tort Report’)

COA 2010 Minutes June 11,
2010 (Nos.548-563)

  • Above link to minutes is full text of minutes with link to full
    text
    of each decision.
  • 16 decisions
  • Published Decisions:  2 (554; 559)

PUBLISHED DECISIONS WITH SHORT SYNOPSIS AND LINK TO FULL TEXT OF
EACH:

554. WORKERS COMPENSATION
MARTINEZ (JOE) VS. PEABODY COAL COMPANY, ET AL.
OPINION REVERSING AND REMANDING
CLAYTON (PRESIDING JUDGE)
COMBS (CONCURS) AND STUMBO (CONCURS)
2009-CA-000927-WC
TO BE PUBLISHED
WORKERS' COMP

LAYTON, JUDGE: This is the second appeal involving the Workers’ Compensation Board (“Board”) decision finding against the employee, Joe Martinez, in his claim for compensation due to pneumoconiosis. Martinez contends that Kentucky Revised Statutes (KRS) 342.316 violates his rights to Equal Protection. For the foregoing reasons, we reverse the Board’s decision and remand the case for reconsideration with the appropriate standard.

559. FAMILY LAW. PATERNITY BY ESTOPPEL.
A. (J. R.) VS. A. (G. D.)
OPINION REVERSING AND REMANDING
TAYLOR (PRESIDING JUDGE)
CLAYTON (CONCURS) AND THOMPSON (CONCURS)
2009-CA-001709-ME
TO BE PUBLISHED
JEFFERSON

TAYLOR, JUDGE: J.R.A. brings this appeal from an August 19, 2009, Order of the Jefferson Circuit Court, Family Court Division, (family court) adjudicating him the legal father of D.A.S. We reverse and remand. * * *

We think the facts of this case are clearly distinguishable from those in S.R.D. First, unlike the relations in S.R.D., D.A.S. was not born during the marriage so there existed no presumption of paternity under KRS 406.011. See Boone v. Ballinger, 228 S.W.3d 1 (Ky. App. 2007). Second, unlike the child in S.R.D., it is undisputed that D.A.S. knew that appellant was not her biological or natural father. This is a most critical distinguishing factor. Under the doctrine of paternity by estoppel, the true facts as to paternity must be unknown to the child. S.R.D., 174 S.W.3d 502. Such ignorance is necessary in order for the child’s reliance to be reasonable. Id.

TORT REPORT – CIVIL, TORTS, INSURANCE CASES.

553. APPEALS. REAL PARTY IN INTEREST AND NEXT FRIEND.
CANTRELL-MAY (VERONICA) VS. WETHERTON, M.D. (BRENDEN M.)
OPINION AND ORDER DISMISSING
TAYLOR (PRESIDING JUDGE)
VANMETER (CONCURS) AND STUMBO (CONCURS)
2009-CA-000903-MR
NOT TO BE PUBLISHED
SHELBY

TAYLOR, JUDGE: Veronica Cantrell-May, as mother and next friend of Alexandria May, brings this appeal from a March 18, 2009, judgment of the Shelby Circuit Court in favor of Brenden M. Wetherton, M.D., dismissing the complaint. For the reasons stated, we must reluctantly dismiss this appeal.

As noted by the Kentucky Supreme Court in City of Devondale, the failure to name an indispensable party in a notice of appeal is a jurisdictional defect. The Supreme Court recently expounded upon jurisdictional defects on appeal in Wilson v. Russell, 162 S.W.3d 911 (Ky. 2005). The Supreme Court stated the following:

It is fundamental that a court must have jurisdiction before it has authority to decide a case. Jurisdiction is the ubiquitous procedural threshold through which all cases and controversies must pass prior to having their substance examined. So fundamental is jurisdiction that it is the concept on which first-year law students cut their teeth. . . Id. at 913.

However, even though not raised, “jurisdiction may not be waived, and it can not be conferred by consent of the parties. This [C]ourt must determine for itself whether it has jurisdiction.” Hubbard v. Hubbard, 303 Ky. 411, 197 S.W.2d 923 (Ky. 1946).

In conclusion, Veronica, as next friend, could not pursue the instant appeal as Alexandria had reached majority and was substituted as plaintiff in the action below. Alexandria is an indispensible party to this appeal. See id. Unfortunately, since Veronica, as next friend, is the only appellant named in the notice of appeal, the appeal must be dismissed. City of Louisville v. Christian Business Women’s Club, Inc., 306 S.W.2d 274 (Ky. 1957).

556. DEFENSES. RES JUDICATA
BURGER (DAVID), ET AL. VS. WESTERN KENTUCKY NAVIGATION, INC.
OPINION REVERSING AND REMANDING
CLAYTON (PRESIDING JUDGE)
CAPERTON (CONCURS) AND BUCKINGHAM (SENIOR STATUS JUDGE)(CONCURS)
2009-CA-001249-MR
NOT TO BE PUBLISHED
LIVINGSTON

LAYTON, JUDGE: David and Earline Burger appeal from an order entered by the Livingston Circuit Court dismissing their personal injury claim against Western Kentucky Navigation, Inc. (WKN) on the grounds that it was barred by res judicata. The Burgers argue that, rather than res judicata, the previous case was dismissed because of lack of jurisdiction and to quash service of process. Further, they maintain that the trial court erred by failing to apply the provisions of KRS 413.270 so as to determine that the statute of limitations was tolled and the action timely filed. WKN counters that the Illinois court dismissed the case on the merits and, therefore, the court did not err when it dismissed the Burgers’ case on the basis of the doctrine of res judicata. We concur with the trial court that KRS 413.270 is inapplicable; however, because the Illinois court’s order dismissing WKN was unclear as to whether the dismissal was based on a lack of jurisdiction or for failure to state a claim, res judicata will not act as a bar to the Burgers’ case. Accordingly, we reverse and remand to the trial court.

558.  WORKERS COMPENSATION. 
ONEY (GARY) VS. MOUNTAIN SOURCE ENERGY, ET AL.
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
ACREE (CONCURS) AND CAPERTON (CONCURS)
2009-CA-001426-WC
NOT TO BE PUBLISHED
WORKERS' COMP

THOMPSON, JUDGE: Gary Oney appeals from an opinion of the Workers’ Compensation Board which affirmed the ALJ’s opinion, order, and award dismissing his claim for permanent disability benefits. Oney alleges that the Board erred when it affirmed the ALJ because the ALJ rejected Dr. Lowe’s testimony and relied on the testimony of Dr. Richard Sheridan and Dr. Russell Travis, neither having assessed an impairment rating.

Oney’s employment history has been in coal-related industrial work and, in June 2007, he began working for Mountain Source Energy LLC. On Wednesday, January 30, 2008, he sustained a work-related back injury. The following Monday, he visited Dr. Stamper complaining of pain in his beltline area radiating into his leg with tingling in his feet and toes. Dr. Stamper referred him for an MRI and X-rays and prescribed pain medication. Oney has not been employed since his injury.

Because Oney’s challenge is to the ALJ’s reliance on the testimony of Dr. Sheridan and Dr. Travis and the rejection of that offered by Dr. Lowe, we limit further recitation of the facts to their testimony.

562. WORKERS COMPENSATION
KENTUCKY EMPLOYERS' MUTUAL INSURANCE VS. DECKER (SHELBY LEE), ET AL.
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
CAPERTON (CONCURS) AND BUCKINGHAM (SENIOR STATUS JUDGE)(CONCURS)
2009-CA-002060-WC
NOT TO BE PUBLISHED
WORKERS' COMP

CLAYTON, JUDGE: Kentucky Employers’ Mutual Insurance (“KEMI”) petitions us to review an opinion of the Workers' Compensation Board (“Board”) entered October 7, 2009, reversing the portion of the Administrative Law Judge’s (“ALJ”) opinion, holding that Shelby Lee Decker was not covered by a workers’ compensation policy purchased by him in October 2006. With regard to the February 26, 2009 opinion of the ALJ, the Board affirmed in part, reversed in part, and remanded to the ALJ. For the reasons stated herein, we affirm the Board’s decision.

563. WORKERS COMPENSATION
ALL PROFESSIONAL TREE SERVICE VS. PENNINGTON (RICHA
RD), ET AL.

OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
VANMETER (CONCURS) AND KELLER (CONCURS)
2009-CA-002092-WC
NOT TO BE PUBLISHED
WORKERS' COMP

COMBS, JUDGE: Richard Pennington filed a motion to reopen his workers’ compensation claim. An Administrative Law Judge (ALJ) denied his motion. On appeal, the Workers’ Compensation Board concluded that the ALJ may have
misunderstood the medical testimony that had been presented. Consequently, it vacated the decision of the ALJ and remanded the matter for further consideration. Pennington’s former employer, All Professional Tree Service (APTS), now appeals the Board’s opinion and argues that the Board exceeded its authority by vacating the ALJ’s decision. After our review, we find no error. Therefore, we affirm.

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