Opinion

Transport Motor Express, Inc. v. Finn

  • 574 S.W.2d 277
  • 1978 Ky. LEXIS 419
Court
Kentucky Supreme Court
Filed
Sep 19, 1978
Status
Published
Author
Palmore
On the bench
Jones, Sternberg, Lukowsky, Palmore, Clayton, Stephenson
Cited by
53 cases

Disagreed with by Matney v. Newberg, 1992 Ky. LEXIS 197 (1992)

separate concurring opinion of Justice Lukowsky

How later courts described this case

  • separate concurring opinion of Justice Lukowsky

Written by the judges who cited it.

Later courts went against this

  • Disagreed with by Matney v. Newberg, 1992 Ky. LEXIS 197 (1992)

    We also disagree with claimant’s contention that, in effect, Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277 (1978) would support combining benefits for greater than 100% occupational disability up to the amount of the state average weekly wage.
    Kentucky Supreme CourtDec 17, 1992Read it

The opinion

PALMORE, Chief Justice,

concurring.

I concur in the result of the majority opinion, but not in the process of reasoning by which it is reached. Whereas the majority opinion avoids the method of computation approved in Pennington v. Winburn, Ky., 537 S.W.2d 167 , 168 (1976), by the charitable stratagem of holding that Pennington does not apply to apportionment cases, I would simply overrule it.

*285 Paragraph (3) of KRS 342.120, the apportionment statute, provides that the employer is liable for the degree of disability that would have resulted from the work-related injury alone, absent the previous disability or condition. In this case the degree of disability resulting from the injury of October 1974 is 25%. By anybody’s definition a 25% disability is a “partial” disability. To find out what it means in terms of workmen’s compensation necessarily requires the application of KRS 342.730(l)(b), the partial disability statute, and that of course involves Pennington, which I continue to think is so patently wrong that I could not bring myself to dissent from this opinion, which reaches the right result, on the strength of it.

I agree with the view expressed by Judge Vance’s concurring opinion in the Court of Appeals that the action of that court, which we are now reversing, was forced by our own majority opinion in Pennington.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.