# Transport Motor Express, Inc. v. Finn

> Kentucky Supreme Court · September 19, 1978 · 574 S.W.2d 277

URL: https://www.frixlaw.com/law-library/cases/9653891

## Case

- **Full name:** TRANSPORT MOTOR EXPRESS, INC., Michigan Mutual Insurance Company and/or Michigan Mutual Liability Company, Movants, v. William F. FINN, James R. Yocom, Commissioner of Labor and Custodian of the Special Fund, Workmen’s Compensation Board, Respondents
- **Court:** Kentucky Supreme Court
- **Decided:** September 19, 1978
- **Citations:** 574 S.W.2d 277; 1978 Ky. LEXIS 419
- **Precedential status:** Published
- **Opinion:** Concurrence by Palmore
- **Judges:** Jones, Sternberg, Lukowsky, Palmore, Clayton, Stephenson
- **Cited by:** 53 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Disagreed with by Matney v. Newberg, 1992 Ky. LEXIS 197 (1992).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9653891

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9653891. Public record. Not legal advice.