SCOCKY has ruled in Reece v. Nationwide Ins. Co. 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". [UPDATE: See, Ed Brutscher's remarks at the Kentucky Tort and Insurance Law blog in Evidence of Permanent Injury Sufficient for Jury Instruction on Impairment; Ed was one of the Nationwide counsel on this appeal, and his insights should be helpful].
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.
Of course, what is required to present the matter to the jury is not necessarily what will be sufficient to persuade the jury on the value of those damages for an award. The family doctor testifying the neck strain is permanent may run counter to the jury's common sense understanding such that they might simply ignore it and award nothing.
Should the jury disbelieve the minimal proof, then presumably the jury's verdict will not be upset on appeal. When it comes to pain and suffering (and mental anguish and inconvenience), the appellate courts have yet to disturb a verdict which awarded nothing for the pain and suffering in the face of awarding medical expenses for the injuries.
When you trust a jury of your peers to make the decision, it seems the courts are trusting the jury's decision since they are in the best position to evaluate all the evidence (but subject to the judge's ruling on any new trial motions which is then subject to an abuse of discretion standard - again which has not been reversed on appeal yet).
In the Reece v. Nationwide case at trial, the expert testimony of the treating physicians centered on a car accident injury which was sandwiched in between two well-documented accidents with disc injuries and whether or not the plaintiff's attorney had asked the right question and obtained the right answer as to how the injury from THIS accident (as opposed to her cumulative injuries) were permanent and impacted earnings capacity. One treating physician testified the accident caused a permanent strain/sprain and had referred the plaintiff to a neurosurgeon who opined the accident made the prior disc heriation worse. The plaintiff did not offer any expert testimony at trial on how the injuries affected her future earnings capacity, but she did testify herself about her career plans were affected by her accident injuries and restrictions. At trial, the judge granted defense counsel's motion for a directed verdict on permanent injury and permanent impairment on earnings - no instructions and not submitted to the jury.
In addition to the permanency issues at trial, the defense counsel offered testimony that one of the plaintiff's treating physicians had his medical license suspended after the trial deposition had been taken. SCOKY held it was error to allow in evidence of the medical license suspension of one of appellant's treating physician witnesses. However, the issue on the medical license was addressed on grounds of relevancy and prejuce; and not under KRE 608 regarding impeachment which the court noted was not raised by counsel at trial and would not be resolved by SCOKY on appeal.
Here is some language from the decison:
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.
When reading the cross-examination of the treating physician, it is and was obvious there were issues pertaining to what injuries were caused by the accident versus before and after (since she injured a disc in a cheerleading fall). With those issues raised in the testimony, defense counsel at the time was placed in the dilemma of how far to pursue the questioning since the burden was perceived to be on the plaintiff to prove permanency and permanent impairment. What has now been resolved on appeal is that the standard for a permanent impairment instruction is minimal, and defense counsel will vigorously cross-examine on those limitations and might even ask the question of the doctor if he/she believes the patient's ability to work has been affected. Do not forget that the AMA Guidelines on Permanent Impairment may be relied on heavily in workers compensation proceedings to calculate the economic loss of future wages, they have no such correlation in a personal injury case. But testimony of no permanent impairment by the guidelines will offer an interesting, if not devastating, counter to any general opinion of a permanent injury or strain - the injury is permanent but they are not impaired by it.
I suspect cross-examinations in the future on these topics will go further than what we have previously become accustomed to since the concerns over proving the plaintiff's case are removed once the doctor says "permanent injury".
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