Kentucky Personal Injury Lawyer Blog

In April of 2008, the Court of Appeals in Michigan heard a case that involved a woman involved in a car accident in October of 2003 where she claims she suffered a traumatic brain injury. (See TBCI PC v. State Farm Mutual Automobile Insurance Company 2008 WL 4367530 (Mich.App.).

In TBCI, Ms. Shaholaa was involved in a car accident in October of 2003 where she claims she suffered a brain injury. Id. The bench trial held that she had not suffered a brain injury and she appealed. This Appellate Court sustained the trial court’s decision. Id.

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In March of 2009, the United States Eastern District Court in Kentucky decided a case which involved a hostile work environment sexual harassment matter. In Landers v. CHLN, Inc., 2009 WL 803777 (E.D.Ky.), the Plaintiff, Ms. Landers was working for the defendant when she claims some of the employees and supervisors sexually harassed her. Plaintiff began working for defendant as a bartender in October of 2005. Id. In April of 2006, an Assistant Manager allegedly stated to her regarding some whip cream “Only if I can spray it on and lick it off as a whip cream bikini.” Id. This Assistant Manager also allegedly hugged her 5 times inappropriately. Id. Plaintiff also alleges other staff members said things like “Oh you’re so cute” and another employee gave his phone number to her with a note that said “for a good time, call…” Id. She did not complain to her supervisors about all of these. Id. Plaintiff filed a lawsuit with claims of hostile work environment, sexual harassment, retaliation, discrimination based on personal association, and intentional infliction of emotional distress. Id.

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Issue: Did the employer interfere with employee’s FMLA rights by not explaining to employee how her FMLA was to be calculated and how much time she had left?

In Highlands Hospital Corporation v. Preece, 2010 WL 569745 (Ky.App.), the Kentucky Court of Appeals held that the employer did violate the employee’s FMLA rights. The reasons are as follows.

Ms. Preece began working for the defendant as a Certified Nursing Assistant in July of 2000. Id. In April of 2004 she discovered she was pregnant. Id. She went to her HR person and was told she had 12 weeks of leave available but was not told how that leave was to be calculated. Id. Plaintiff was never informed she could use her accumulated vacation and sick days instead of FMLA leave. Id. Beginning June 16, 2004 up until the birth of her child on October 21, 2004, Plaintiff took intermittent leave. Id. She did not know that her time off was going towards her FMLA leave. Id.

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Issue: Was the $3,000,000 award for pain and suffering excessive in a wrongful death case where the award for pain and suffering was 30 times the medical expenses?

In Barrett v. Mulligan, 2010 WL 1404440 (Ky.App.) the Kentucky court of Appeals held that it was not excessive to sustain such an award based on the facts of the case.

In Barrett, Mr. Barrett took his car in to the Defendant’s auto repair shop and had the car’s engine replaced. Id. Plaintiff took his car out of the shop on November 4, 2004 and on November 6, 2004, while the car was parked, the car caught fire and Mr. Barrett was severely burned and taken to the hospital. Id. Plaintiff died 3 days later of his injuries. Id. Thus, the family of the Plaintiff hired a Louisville personal injury lawyer.

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In April of 2010, the United States Western District Court in Kentucky decided a case which involved a race discrimination wrongful termination case. In this case, the Plaintiff alleged that he was subject to racial discrimination and harassment in the form of jokes, slurs, and demeaning insults. (See Laporte v. B.L. Harbert International, LLC, 2010 WL 1542500 (W.D.Ky.). The Plaintiff in this case after receiving his right to sue letter from the EEOC, filed a lawsuit with many counts. One of the counts was a Title VII and KCRA (Kentucky Civil Rights Act) for race discrimination, harassment, and retaliation against his supervisor. Id. The Sixth Circuit held that “an individual employee/supervisor, who does not otherwise quality as an “employer,” may not be held personally liable under Title VII.” (cites omitted). Id. The same is true pursuant to the KCRA. Id. Thus this count was dismissed.

Next, Plaintiff brought a count alleging 14th Amendment, Section 1983 and Bivens Claims against two named individuals. Id. “To sate a claim under the Equal Protection Clause, a Section 1983 plaintiff must allege that a state actor intentionally discriminated against the plaintiff because of membership in a protected class.” (cites omitted). Id. Further, “The Bivens doctrine is a judicially created counterpart to a Section 1983 action and pertains to suits filed against federal officials who have allegedly denied a plaintiff’s constitutional rights. (cites omitted). Plaintiff has not alleged that Defendants were “acting under color of state law” or are federal officials. Therefore, Plaintiff’s claims must be dismissed.” Id.

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In May of 2009, the Kentucky Supreme Court decided a case involving the impairment rating of an injured Plaintiff. (See Karlos’ Bistro Italia v. Rohling, 2009 WL 1451898 (Ky.)). The Plaintiff in this case injured herself while at work. Id. She was a prep cook and while lifting cases of canned tomatoes she hurt her back. Id. This was on September 9, 2005. Id. On October 21, 2005, Plaintiff was rear ended during a car accident. Id. An MRI was performed on October 28, 2005. Id. It showed positive for nerve root compression. Id. In August of 2006, Plaintiff underwent lumbar surgery for her radicular pain. Id. Plaintiff was given a 13% permanent impairment rating by one doctor and 11% impairment rating by another. The 13% impairment rating was broken down to 8% for the work injury and 5% for the car accident. Id.

“Whether an impairment rating conforms to the Guides is a medical question to be decided based on expert medical testimony.” Id. This Court reviewed the testimony and held that the doctor’s evaluation and use of the Guide was not in error. Id. The Court held that the Administrative Law Judge must admit the report on remand, consider it, and rely on the doctor’s clarification that the work related injury actually produced an 8% impairment rating under the Guides. Id.

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In January of 2010, the Kentucky Court of Appeals decided a case involving a woman and determining if she qualified for disability retirement benefits due to a work related accident. (See Board of Trustees of the Kentucky Retirement Systems v. Davis, 2010 WL 199563 (Ky. App.)). The Plaintiff in this case injured herself while at work in a very serious car accident. Id. As a result of the car accident, the Plaintiff, who is 55, suffered a fractured pelvis, three fractured ribs, a punctured lung, a lacerated spleen and a bulging disc with neuropathy. Id. Plaintiff felt that after this very serious car accident that she was not able to continue working for the Kentucky River District Health Department as they were unable to provide accommodations to her to allow her to continue with her job. Id. Accordingly, Plaintiff applied for duty related disability benefits under KRS 61.621. Id.

The hearing officer granted Plaintiff the benefits, then the Disability Appeals Committee rejected that finding so Plaintiff appealed to the Franklin Circuit Court and that Court reversed the Committee’s decision. Now the Kentucky Court of Appeals had to decide who was right. This Court held that the Franklin Circuit Court was correct and allowed Plaintiff to receive her disability benefits. The reasoning is as follows.

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