Evidence of Permanent Injury Sufficient for Jury Instruction on Impairment

March 23, 2007

The Supreme Court finally released its published opinion in Reece v. Nationwide, the case I posted about earlier and which recently determined the standard for authorizing an instruction on permanent impairment. Essentially, Reece argued she was only required to show evidence of permanent injury to entitle her to an instruction on permanent impairment. Nationwide argued that some evidence of the injury’s effect on her ability to earn was necessary since her injury, a back strain, was not the type which would typically impair her ability to earn. The trial court granted a directed verdict on this issue, finding that Reece did not present specific evidence how her earnings would be impaired. The court of appeals affirmed, finding that Reece’s back strain was not the kind from which a permanent impairment would follow and therefore, she was required to present some positive evidence of the injuries impact.

The Supreme Court found that Reece had presented evidence of a permanent injury and that alone was all that was required to bring her claim before the jury. The Court believes that “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.” It found this to be the case even though it readily admitted, “that a permanent injury may not always result in permanent impairment of earning power.”

The Supreme Court found that Reece’s testimony was alone sufficient to create a jury question. This evidence consisted of her own claims:

[T]hat as a result of her “back/neck injuries from the 1997 accident, she is unable to lift any significant weight and cannot sit for long periods of time. Reece stated that she attended Western Kentucky University for a semester, but had to leave because she could not go to class due to back pain and doctors’ appointments. Thereafter, she attended Jefferson Community College (JCC) until she was placed on academic suspension. Reece stated that she ultimately wanted to finish college, become a registered nurse and work in a position that did not require heavy lifting. While attending JCC, Reece worked a data entry job at UPS for over a year, but was miserable because she had to sit and look up at a computer screen the whole time. After leaving UPS, Reece was employed in a secretarial position at Baptist East Hospital until she was asked to resign because of missing so much work. At the time of trial, Reece was not employed.

The Supreme Court reversed and remanded the case to the Jefferson Circuit Court for further proceedings, presumably for a trial on this issue.

Of course what isn’t really discussed is the fact that this opinion entirely changes the current status of Kentucky law. The Court sidesteps this issue by claiming an adherence to the case Chesapeake & O. Ry. Co. v. Hay, while overruling Herndon v. Waldon, a similar case decided three years earlier. However, there really is no significant difference between the two cases, except the result reached by the court. In Chesapeake the plaintiff suffered an “obviously disabling injury to his hand.” An injury so obvious that its permanency was not only apparent but so was its future affect on his ability to work. So obvious, that the jury had no trouble in using common sense to determine its impact and determine its worth. Here Reece merely had a back strain, with no such obvious showing. However, whether under Herndon or Chesapeake, because her “permanent” back strain is not the kind of injury that normally results in impairment, something more was required under prior Kentucky law. The evidence relied upon by the court fails mostly because even Reece fails to relate it to her back strain, but also because her prior injuries could just as easily have been the cause of her problems.

Essentially, all you need now is a doctor to say “permanent injury” and you are entitled to an instruction on impairment. Under this ruling a plaintiff isn’t even required to present evidence of her impairment. Simply have a doctor say “permanent” and you reach the jury. An attorney would be foolish not to simply ask a doctor if the injury is permanent. If a low back strain, such as this is permanent, any injury can be characterized as such. While Reece’s testimony may be helpful to the jury in determining the value to place on her impairment claim, it is not required and apparently would not be needed to support any alleged award given. Kentucky law now awards “permanency” NOT “impairment to the ability to labor and earn money.”

Another issue simply glossed over was the fact that Reece had two herniated discs in her low before this accident, suffered a cheerleading injury after the mva, and a third herniated disc from another accident. Reece has back problems, which no one doubts, but to allow her to reach a jury simply by claiming these result from this accident falls far short of the standard previously required under Kentucky law. Especially on such flimsy evidence as relied upon by the Court. This claim is simply speculation on Reece’s part, speculation that this court believes is sufficient enough to warrant removal of the judge’s oversight. While I certainly agree that a jury is capable of determining the extent and value of an impairment in cases such as Chesepeake, they shouldn’t be allowed to simply speculate on every injury opined to be “permanent” without any evidence showing the affect of the injury on the ability to work.

Finally, I must comment on the Court’s failure to mention Reece’s attempts to recover from Nationwide for her two prior herniated discs. Reece relied on Raque’s opinion that 2/3rds of her problems were related to this accident, because two herniated discs were present after this accident. Of course, Raque admitted on cross examination that his opinion failed to take into consideration that the two herniated discs PREDATED this accident. Reece tried to use this failure to her advantage. She even argued to the Supreme Court of Kentucky that this was evidence to support her impairment claim. The court of appeals noted her failure to be open about her preexisting injuries. The Supreme Court didn’t even think it warranted a footnote.

With all that being said, the decision was 7-0 with all justices concurring. Perhaps, that is an indication that this Court believes the jury is the best arbitrator of what is and is not sufficient evidence to warrant a recovery. While this may sound admirable in theory, it is a complete reversal of the current status of the law, which had relied on judges to make that initial determination. It begs the question; “Is this the end of the directed verdict on damage claims?”

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