Kentucky Court Report - SCOKY & COAKY

Reopening workers comp case and impact on medicals and disability award implications: BARTEE V. UNIVERSITY MEDICAL CENTER (SC 1/24/2008)

BARTEE V. UNIVERSITY MEDICAL CENTER
WORKERS COMP:  REOPENING
2007-SC-000094-WC.pdf
PUBLISHED: AFFIRMING
OPINION OF THE COURT
DATE RENDERED: 01/24/2008

The Supreme Court affirmed a finding that the Claimant’s entitlement to temporary total disability cannot be granted prior to a motion to reopen having been filed by the Plaintiff. In this case, the workers’ compensation insurance carrier disputed the need for a surgery and filed a motion to reopen. The Claimant had the surgery and filed a motion to reopen afterwards, claiming increased disability and temporary total disability. The Court eventually found that the surgery was reasonable, necessary, and related to the work related injury. However, the Court found that the claimant was not entitled to an award of temporary total disability benefits for a period of time before the motion to reopen for disability was filed. The Court also held that the carrier’s Motion to Reopen to contest a medical expense did not reopen the case for purposes of awarding temporary disability, nor was the defendant estopped from objecting to the award of temporary disability benefits.

PETER NAAKE

SCOKY RULES: 2007 Amendments to the Rules of the Supreme Court, effective February 1, 2008

Amendments to Supreme Court Rules. The Supreme Court of Kentucky has announced their 2007 Amendments to the Rules of the Supreme Court, effective February 1, 2008. The Amendments will be published in the January edition of your Bench & Bar magazine, but you can review them now by clicking on the direct link: http://www.kybar.org/documents/scr/amendments_scr.pdf

Thanks to the KBA's "e-News" e-mail.

Kentucky Rules of Evidence Changes Effective May 1, 2007 - Part 2: KRE 404 Character evidence and evidence of other crimes

Effective May 1, 2007, several rules of evidence were changed and took effect:  KRE 103, KRE 404, KRE 410, KRE 701, KRE 702 and KRE 1103.  These can be found in Supreme Court Order 2007-2 at the AOC's Web Site.   We will attempt to post the change to each rule with the added and the redacted portions shown.  For earlier posts on these changes see KRE 103.

The Amendments to Subsection (1) of section (a) of KRE 404 shall read as follows:

KRE 404 Character evidence and evidence of other crimes

(a) Character evidence generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of accused. Evidence of a pertinent trait of character or of general moral character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution;

(2) Character of victim generally. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, other than in a prosecution for criminal sexual conduct, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;

(3) Character of witnesses. Evidence of the character of witnesses, as provided in KRE 607, KRE 608, and KRE 609.

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible:

(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or

(2) If so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party.

(c) Notice requirement. In a criminal case, if the prosecution intends to introduce evidence pursuant to subdivision (b) of this rule as a part of its case in chief, it shall give reasonable pretrial notice to the defendant of its intention to offer such evidence. Upon failure of the prosecution to give such notice the court may exclude the evidence offered under subdivision (b) or for good cause shown may excuse the failure to give such notice and grant the defendant a continuance or such other remedy as is necessary to avoid unfair prejudice caused by such failure.

EVIDENCE RULES REVIEW COMMISSION NOTES (2007)

The 2007 amendment to this rule makes a change with respect to the admissibility of evidence of the character of an accused (as provided in subsection (a)(1) of the provision) and leaves all of the other provisions of the rule unchanged.

The change expands the circumstances under which the prosecution is permitted to prove a defendant's character to show the commission of a criminal act. Under the 1992 version of this rule, the prosecution could not introduce evidence of a defendant's character except in rebuttal of character evidence first offered by the defendant (i.e., the defendant's character was not in issue until he had put it in issue). The change opens the door for the prosecution to prove the bad character of a defendant after the defense has attacked the character of the victim (although keeping his own character out of the issues of the case).

The drafters of the Federal Rules made this same change in year 2000 and offered the following explanation for doing so:

"The amendment makes clear that the accused cannot attack the alleged victim's character and yet remain shielded from the disclosure of equally relevant evidence concerning the same character trait of the accused. For example, in a murder case with a claim of self-defense, the accused, to bolster this defense, might offer evidence of the alleged victim's violent disposition. If the government has evidence that the accused has a violent disposition, but is not allowed to offer this evidence as part of its rebuttal, the jury has only part of the information it needs for an informed assessment of the probabilities as to who was the initial aggressor ... Thus, the amendment is designed to permit a more balanced presentation of character evidence when an accused chooses to attack the character of the alleged victim." See Fed.R.Evid. 404, Advisory Committee Notes, 2000 Amendment.

Needless to say, the 2007 amendment to the Kentucky Rules serves to bring KRE 404(a)(1) into full alignment with its counterpart in the Federal Rules.

It needs to be noted, as stated in the commentary to the Federal Rules that "the amendment does not permit proof of the accused's character when the accused attacks the alleged victim's character as a witness under Rule 608 or 609." See Fed.R.Evid. 404, Advisory Committee Notes, 2000 Amendment.

Kentucky Rules of Evidence Changes Effective May 1, 2007 - Part 1: KRE 103

Effective May 1, 2007, several rules of evidence were changed and took effect:  KRE 103, KRE 404, KRE 410, KRE 701, KRE 702 and KRE 1103.  These can be found in Supreme Court Order 2007-2 at the AOC's Web Site.   We will attempt to post the change to each rule with the added and the redacted portions shown.

KRE 103 Rulings on Evidence

(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected; and

(1) Objection. In case  If the ruling is one admitting evidence, a timely objection or motion to strike appears of record, and upon request of the court stating the specific ground of objection, if the specific ground was not apparent from the context; or

(2) Offer of proof. In case If the ruling is one excluding evidence, upon request of the examining attorney, the witness may make a specific offer of his answer to the question the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

(b) Record of offer and ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.

(c) Hearing of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.

(d) Motions in limine. A party may move the court for a ruling in advance of trial on the admission or exclusion of evidence. The court may rule on such a motion in advance of trial or may defer a decision on admissibility until the evidence is offered at trial. A motion in limine resolved by order of record is sufficient to preserve error for appellate review. Nothing in this rule precludes the court from reconsidering at trial any ruling made on a motion in limine.

(e) Palpable error. A palpable error in applying the Kentucky Rules of Evidence which affects the substantial rights of a party may be considered by a trial court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.

EVIDENCE RULES REVIEW COMMISSION NOTES (2007)

The 2007 amendment to this provision of the Rules makes two changes in the original (1992) rules on preserving errors for review. Both of the changes are in the first subsection of the provision (KRE 103(a)). None of the other subsections are affected by the 2007 amendment.

The first of the changes involves the requirement that a party make " specific" rather than "general" objections when the party desires exclusion of offered evidence. Under the 1992 version of this rule, a party was required to give grounds for objection only when requested to do so by the trial court; under the 2007 amendment, a party is required to state grounds for an objection in order to preserve error for review (and not just when requested to do so by the court) unless the ground for the objection was apparent from the context. The reasons for making this change include all of the following:

(1) One of the reasons for requiring specific objections is to impose on lawyers an obligation to assist the trial judge with difficult issues of evidence law so that the judge may rule intelligently and quickly on those issues. This policy is sufficiently sound to require a statement of grounds in all instances and not merely upon request by the court.

(2) The amendment brings KRE 103(a)(1) into alignment with FRE 103(a)(1). Uniformity with the Federal Rules has been consistently pursued by drafters of the Kentucky Rules and would be advanced by this amendment.

(3) The amendment would bring Kentucky law into alignment with the prevailing if not universal rule of other states and would bring the law into alignment with a proposal made by the drafters of the 1992 version of the Kentucky Rules. See Study Committee, Kentucky Rules of Evidence, Final Draft, pp. 2-4 (Nov. 1989).

The second of the changes involves the requirement that a party made a "proper offer" of proof in order to preserve error when offered evidence is excluded by the trial judge. Under the 1992 version of this rule, lawyers were required to use witnesses when making a record of evidence ruled inadmissible by the judge; the rule left no room for what is known widely as a "proffer" of evidence (i.e., where the lawyer states for the record what the witness would have said if allowed to testify). Under the 2007 amendment, lawyers are required to make the substance of excluded testimony "known to the court by offer" but are not required to do so through testimony of witnesses (thereby opening the door to the use of " proffers" of evidence). The reasons for this change include all of the following:

(1) It is more efficient and less burdensome to allow the lawyers to state for the record what a witness would say in testimony if permitted (using the "proffer") and should in some instances enhance the fluidity of the production of evidence, all without imposing any burden on the opposing party or on the affected courts (trial and appeal).

(2) The amendment brings KRE 103(a)(2) into alignment with FRE 103(a)(2), brings Kentucky's law into alignment with the law of most if not all other states, and adopts a position first advanced by the original drafters of Kentucky's Rules of Evidence. See Study Committee, Kentucky Rules of Evidence, Final Draft, pp. 2-3 (Nov. 1989).

(3) The amendment also serves to eliminate an ambiguity in KRE 103 because of the inconsistency of saying on the one hand that an offer of excluded evidence must come from the witness (as in the original version of KRE 103(a)(2)) but then saying on the other hand that the trial judge "may direct the making of an offer in question and answer form" (as has always been stated in KRE 103(b)).

News: "Judge Catherine Holderfield attends conference on Child Abuse and Neglect"

Judge Catherine Holderfield attends conference on Child Abuse and Neglect

Drug Court - Supreme Court Order 2006-01

2006-01 - ADMINISTRATIVE PROCEDURES OF THE COURT OF JUSTICE, PART XIII. DRUG COURT

Pursuant to Sections 110(5)(b) and 116 of the Constitution of Kentucky, it is HEREBY ORDERED that the Administrative Procedures of the court of Justice are amended by the addition of the following Part XIII . Drug Court: * * * [click on heading for entire order in PDF]