Bluegrass Business Law

January 31, 2007

Required findings for pre-existing condition – Workers Comp

Filed under: Workers Compensation — G.A. Napier @ 3:39 pm

The Kentucky Court of Appeals, in Finley v. DBM Technologies, 2006-CA-001132-WC, (Jan. 26, 2007)(To be published), made it clear that the Administrative Law Judge had to specific find whether a pre-existing condition had been permanently or temporarily aroused. In the case, Finley had soliosis which was deemed a dormant pre-existing condition by the Court of Appeals based on undisputed medical evidence. However, the ALJ attributed certain treatments to work related arousal and but denied coverage of later treatments.

In Workers Compensation,

    “a pre-existing condition that is both asymptomatic and produces no impairment prior to the work related injury constitutes a pre-existing dormant condition. When a pre-existing dormant condition is aroused into disabling reality by a work-related injury, any impairment or medical expense related solely to the pre-existing condition is compensable. A pre-existing condition may be either temporarily or permanently aroused. If the pre-existing condition completely reverts to its pre-injury dormant state, the arousal is considered temporary. If the pre-existing condition does not completely revert to its pre-injury dormant state, the arousal is considered permanent, rather than temporary.” Id.

In this case, the ALJ did not make a specific finding whether the arousal was permanent or temporary. So, if you are pursuing a workers’ compensation claim regarding a pre-existing condition, be sure request of the ALJ specific findings as to whether the pre-existing condtion was dormant and asymptomatic and whether it was a permanent arousal or temorary. This will save much time and effort.

January 25, 2007

Justice may be blind – but she’s loaded!

Filed under: Uncategorized — G.A. Napier @ 7:44 pm

The web is alive with news that at least one New York law firm has bumped up the starting salary of their new associations to $160,000.00. See Above the Law for a start. Here is Lexington, Kentucky Stoll Keenon Ogden started their 2006 graduates out around $84k and some change. Stites and Greenebaum are in that range more or less. Then, one drops down to mid-size firms who paid their 2006 graduates about $45k. Lousville firms are paying roughly the same – maybe a couple k more. I checked a cost of living calculator and found that $85k here in Lexington equaled $183k in Manhattan. So, Lexington lawyers in big firms make more that New York lawyers in terms of buying power.

Now, for those of you going to a big law firm, I hope you realize that most of your work will actually be done by one of those brand new lawyers who are just as inexperienced as every other brand new lawyer. While they were the top of their class (or a relative of a partner), the difference in brain power between the tip-top and the rest of the class measured in decimal places.

January 23, 2007

Workers Comp Termination Date

Filed under: Workers Compensation — G.A. Napier @ 10:19 pm

In Frazier v. Morisey. Inc., 2006-CA-000895-WC (2007) the Court of Appeals ruled that KRS 342.730(4) is unambiguous and that the benefit termination date is the date that spouse or dependent would have qualified for Social Security benefits based on the earnings entitlement of the worker, had s/he survived.

January 13, 2007

Honesty & the Practice of Law

Filed under: Uncategorized — G.A. Napier @ 6:14 pm

My idealism is showing again. I think lawyers should be honest. Honest with clients. Honest with one another. Most of all, honest with the court. Honesty means different things to different people. If asked, nearly everyone would say they are basically an honest person. Yet, this clearly is not so.

Let’s look at this on a ‘truthfulness continuum’. All lawyers spin the truth to some degree or another. All lawyers will present and highlight facts supportive of their client’s position. They will avoid admitting hurtful facts when possible and ethical. This is the ‘best possible light’ range. When hurtful facts must be admitted, they will present them in the least harmful way as long as that way is a reasonable inference one can derive from the facts. I wish this is where we all stopped on the truthfulness continuum.

However, many lawyers go farther down the continuum. The next area on that range is the ‘grain of truth’ area. Here, as long as there is a grain of truth to what the attorney is saying, they feel free to engage in creative license with the truth. For example – the opposing party smoked marijuahna two or three times in the last year while out and the children were home with a babysitter. This suddenly becomes – the opposing party is a full blown drug addict who is endangering their children.

Then we get down to the other end of the spectrum. I wish that only a few lawyers hang out down here but sometimes it seems awfully crowded. This is the ‘say it enough times and it becomes true’ section. Here, the lawyer feels justified in engaging in wild speculation. As long as their client is willing to say something is possible, the lawyer will treat it as fact. For example – their client has some concerns that the opposing party might have left their child in the care of someone that could possibly mistreat that child, even though another adult was likely present. This becomes – the opposing party routinely leaves their child unsupervised with a known child molester.

The middle section, in my mind, is ethically questionable and personally distasteful. I do not practice even there and will tell prospective clients that up front. That last range of wild speculation, I believe, is unethical and immoral. I like to believe that judges will recognize the attorneys who practice in that range and no longer grant them credibility. Yes, I like to believe that. Those attorneys seem oblivious that they quickly get a reputation for those tactics among other lawyers even if the judges do not catch on and, in the long run, reduce their effectiveness because the other attorneys will not trust them enough to engage in negotiations.

It can be very disheartening when engaged in a legal contest with one of those wild speculation lawyers and see them winning. It seems human nature that if you hear something is true often enough, you will believe it – sometimes it is true and sometimes not. Marketing professionals entire professions are based on this concept. This kind of dishonesty is at the heart of what makes justice elusive. They are also the source of all the bad lawyer jokes and poor reputation of this honorable profession.

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