DAMAGES (PERMANENT IMPAIRMENT): REECE V. NATIONWIDE MUT. INS. CO. (SC 3/22/2007)

SCOKY held that "the plaintiff need only prove with reasonable probability that the injury is permanent in order to obtain an instruction on permanent impairment of earning power". 

This decision is significant  for several reasons. First, SCOKY was unanimous with all concurring in Justice Schroder’s majority opinion.  Second, the rule is now clear when the plaintiff is entitled to instructions on what are typically referred to as "future wages" or "impaired capacity to labor and earn money."

A permanent injury entitles plaintiff to an instruction on capacity to earn money in the future. . . . period.  No requirement for a vocational expert of other expert to connect any permanent restrictions to employment; no requirement for an AMA impairment rating.  The jury is trusted to handle the decision based upon the doctor stating a permanent injury, and the plaintiff can simply testify how he or she is affected.

We hold that evidence of permanent injury alone is sufficient for an instruction on permanent impairment of earning power, and that the jury can through their common knowledge and experience make the determination if there has been a permanent impairment of earning power, the extent of such impairment, and the amount of damages for such impairment.

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While specific expert witness testimony on permanent impairment of earning power is helpful and often persuasive, see Louisville Metro Hous. Auth . v. Burns, 198 S .W.3d 147, 151 (Ky.App. 2005), it is not necessary to submit the issue of permanent impairment of earning power to the jury. See Pickard Chrysler, Inc. v. Sizemore , 918 S.W.2d 736, 739-40 (Ky.App. 1995) (upholding award of damages for permanent impairment of earning power where there was no expert testimony on how plaintiff’s earning power was affected and little evidence of past job history and earnings) . The plaintiff need only show with reasonable probability that the injury sustained is permanent. Rogers v. Sullivan, 410 S.W.2d at 628 . This Court recognizes that a permanent injury may not always result in permanent impairment of earning power. Like the Chesapeake Court, we believe jurors are capable of determining, from the evidence and their common knowledge and experience, whether there has been a permanent impairment, the extent of such impairment, and the value of such impairment.