author: SCOTT, Justice,

text:
    Charles A. KUBAJAK, Jr., Appellant v. LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT; Hon. Roger D. Riggs, Administrative Law Judge; and Workers’ Compensation Board, Appellees.
    No. 2003-SC-0974-WC.
    Supreme Court of Kentucky.
    Dec. 22, 2005.

      David B. Allen, Lexington, Counsel for Appellant.
    Sherri P. Brown, Ferreri & Fogle, Robert L. Swisher, Geralds, Jones, Sherrow, Schrader & Rice, Lexington, Counsel for Appellee.
   OPINION OF THE COURT

It is undisputed that the claimant suffers from post-traumatic stress disorder, that the condition is disabling, and that it is work-related. An Administrative Law Judge (ALJ) determined, however, that the condition was due to observing gruesome crime scenes. Therefore, it was not an “injury” as defined by KRS 342.0011(1) and was not compensable. See Lexington-Fayette Urban County Government v. West, 52 S.W.3d 564 (Ky.2001). Having determined that the evidence did not compel a finding that the condition resulted from a physically traumatic event, the Workers’ Compensation Board (Board) and the Court of Appeals have affirmed. Likewise, we affirm.

The claimant began working as a police officer for the Lexington-Fayette Urban County Government in October, 1986. His claim alleged that as of January 19, 2001, he suffered from post-traumatic stress disorder, panic attacks, and other psychological or psychiatric conditions and that he had sustained a cumulative trauma psychiatric injury resulting from the “highly stressful duties required by the job.”

After completing the police academy, he began working on patrol. His duties included responding to accidents, taking burglary reports, and attempting to deter crime. He stated that he was involved in a number of fights over the years. The worst occurred early in his career, when he stopped a vehicle in which four individuals were riding. After the driver exited the vehicle, he became hostile, and a fight resulted. The claimant had to draw his weapon and then wait for back-up to arrive and assist him. He stated that he missed no work and required no medical treatment due to the incident.

On May 28, 1990, the claimant transferred to the Crime Scene Investigation Unit, where he was responsible for collecting, documenting, and preserving evidence to be introduced in court. More specifically, he photographed crime scenes, recovered latent fingerprints, collected evidence, and appeared in court. The work involved a daily exposure to the details of scenes of extreme and graphic violence.

In the early to mid-1990s, the claimant began to experience headaches and stomach discomfort. His symptoms worsened appreciably after working the scene where two fellow officers were shot. On occasions, he experienced chest pains severe enough that he went to the hospital, thinking he was having a heart attack. The unit was short-staffed, and officers were subject to be called out at any time. Thus, he attributed his symptoms to “burn out” from the long hours and irregular sleep patterns that resulted. Sometime in the early 1990s, Dr. Bailey discussed the possibility that the origin of the symptoms might be psychological, but the claimant requested that nothing be put in his records that would jeopardize his employment.

At some point, the claimant began to have nightmares and thoughts he called “hauntings,” in which he relived some of the crime scenes he had worked. He also realized that he had over-reacted to certain situations, explaining that he had feared for his life and drawn his weapon when an elderly woman whose vehicle was stopped began to reach under the seat. Convinced that he needed a job with regular eight-to-five hours, he requested a transfer. On August 5, 1996, he was transferred to the Auto Theft Unit. Yet, the flashbacks and nightmares became more intense and much more frequent, and he began to withdraw from contact with other people.

The claimant was transferred to the Robbery Unit in July, 2000. This involved everything from purse snatchings to bank robberies and occasional exposures to violent crime scenes. He testified that he informed superiors at the time that he was experiencing stress but was not specific about the cause or symptoms. In October, 2000, he was called to the scene of a robbery where a body was found. As he approached the home and saw the medical team, he went into a panic and broke down. Shortly thereafter, he told the Chief that his job was too stressful and was endangering his health.

On October 30, 2000, the claimant transferred to Community Service, a light-duty assignment. He explained that thirty days of light duty were required before requesting disability retirement. During this period, he contemplated suicide and recognized that he needed professional help. He sought treatment with Dr. Allen, who diagnosed post-traumatic stress disorder and informed him of the diagnosis on December 11, 2000.

The claimant was placed on medical leave on January 19, 2001, and testified that he has not worked since then. He applied for disability retirement shortly thereafter. It was approved following evaluations by Drs. Ruth and Ludwig, both of whom provided evidence in his workers’ compensation claim.

The claimant testified initially that he suffered no “physical” injuries as a police officer. He testified later that he sustained a whiplash injury in a vehicular accident and had been involved in physical scuffles on at least two occasions. He stated that he sustained “bruises and abrasions” in the incidents but sought no medical treatment. His argument to the ALJ was that the physically traumatic events contributed to causing his psychiatric condition; therefore, it directly resulted from a physical injury and was compensable under West, supra.

Dr. Ludwig, a psychiatrist, diagnosed major depressive disorder and post-traumatic stress disorder. He attributed the conditions entirely to the claimant’s exposure to scenes of violence and death in his work. In his opinion, they were permanently and totally disabling with regard to the claimant’s ability to work as a police officer.

Dr. Ruth, a psychiatrist, examined the claimant and concluded that he could not return to work as a police officer. In his opinion, the claimant’s post-traumatic stress disorder was caused by repeated exposure to signs of violence while investigating crime scenes. He assigned a 15% AMA impairment under the last edition that provided percentage ratings.

Dr. Allen, the treating clinical psychologist, took a history consistent with that to which the claimant testified. He diagnosed post-traumatic stress disorder due to the cumulative stress of the claimant’s work. He thought that, with treatment, the claimant would be able to perform work other than as a police officer.

In a supplemental report, dated May 14, 2002, Dr. Allen stated that the claimant reported several occasions in which he was injured while in the line of duty and that some of those altercations appeared consistently in his nightmares. One particular event was an incident in which he found it necessary to pull his gun on a knife-wielding assailant following a scuffle in which he was injured. In Dr. Allen’s opinion, repeated physical harm or threat of physical harm had increased the claimant’s general level of arousal and anxiety. Other events included an exposure to blood at various crime scenes followed by information that the blood was positive for HIV or Hepatitis C. He concluded, therefore, that the physical nature of the claimant’s work and “consequent or potential injuries” were “an important part of the core experiences which led to his Posttrau-matic Stress Disorder.”

When deposed by the employer, Dr. Allen testified that he had not seen the claimant since May 9, 2001, when the claimant stopped by his office, talked with him briefly about scuffles and altercations as well as exposure to blood products, and asked him to clarify that they had discussed such events. Dr. Allen stated that he agreed to do so because they had discussed the events, and they “were part of the larger pattern of posttraumatic stress that he had been experiencing and had consistently experienced.” Therefore, he viewed the supplemental report as being a clarification of his diagnosis and the reason for the diagnosis.

Dr. Allen testified that he had recorded no physically traumatic event involving the claimant and was not aware that any of the scuffles or altercations the claimant mentioned required medical treatment. He was questioned about whether any physical events in which the claimant was involved had evoked the intense fear, helplessness, or horror that the DSM IV required for a diagnosis of post-traumatic stress disorder. He stated that during physical altercations, such as being confronted by a knife-wielding husband during a domestic disturbance, the thought that one might be injured significantly is going to occur and did occur to the claimant. However, such events happened “within the context of a much larger picture of very traumatic, horrific events and situations that he has dealt with.” Dr. Allen characterized an attempt to attribute the claimant’s condition to any particular event as splitting hairs.

When questioned further about any physical injuries the claimant may have reported, Dr. Allen noted that it was not his experience for an individual to report a medical problem such as a cut that required stitches as being a significant injury unless it required ongoing medical treatment. According to his records and recollection, the claimant never reported that he suffered any physical harm although he did mention scuffles, altercations, and exposures to situations that he perceived as being potentially life-threatening. Dr. Allen explained that two classes of situations were involved, situations in which the claimant perceived the potential of personal harm and those in which he witnessed extraordinarily horrific crime scenes. He attributed the claimant’s condition to the cumulative effects of all of his experiences as a police officer, particularly to the crime scene investigations. He viewed the claimant’s investigation of the 1996 shooting of two fellow officers as being significant in precipitating his symptoms. Acknowledging that the claimant did not initially relate his symptoms to his exposure to emotionally stressful situations, Dr. Allen explained that defensive avoidance, or failing to make a clear connection between symptoms and their cause, is fairly typical of people with post-traumatic stress disorder.

Dr. Granacher examined the claimant and performed psychological testing. He reported that the claimant sustained a 20% whole-body psychiatric impairment due to post-traumatic stress disorder. He attributed the condition to the cumulative emotional stress of the claimant’s work, noting that the condition is common in police and fire personnel. He thought that the claimant could be productive and successful in a different type of work.

When deposed by the employer, Dr. Granacher was asked whether the claimant reported “a physical event that was life-threatening or to which he reacted in horror or with an intense fear or a feeling of helplessness or hopelessness.” He testified that the claimant never reported a specific physical event but did repeatedly state that he found working a crime scene to be stressful. Furthermore, the social history obtained from the claimant included a number of questions such as whether he had ever been violent; had ever been harmed by another; had ever been shot at, stabbed, or beaten by another; or had ever threatened to kill another. The claimant answered all in the negative. Later, Dr. Granacher stated that if a physical event had contributed to the claimant’s condition, he would have expected him to report it. In Dr. Granacher’s opinion, the post-traumatic stress disorder was due to psychological events, particularly having to work the scenes where two fellow officers were shot. It was in no way a direct result of a physical injury.

After summarizing the evidence, the ALJ noted that the case turned on whether the claimant’s psychological, psychiatric, or stress-related condition was a direct result of a physical injury. KRS 342.0011(1). Yet, only Dr. Allen’s testimony even remotely related the condition to a physically traumatic event. Relying instead on testimony from Drs. Ruth, Ludwig, and Granacher, the ALJ determined that the claimant’s post-traumatic stress disorder and resulting impairment were not a direct result of a physical injury and, therefore, were not compensable as an injury-

For the purposes of Chapter 342, the word “injury” is a term of art. Before December 12, 1996, KRS 342.0011(1) defined an “injury” as being a harmful change in the human organism. Since December 12, 1996, KRS 342.0011(1) has defined an “injury” as being a work-related traumatic event or series of such events that causes a harmful change in the human organism. The statute requires that a psychological, psychiatric, or stress-related change in the human organism must be “a direct result of a physical injury.”

Noting that KRS 342.0011(1) now defines an “injury” as being a traumatic event or series of events rather than as being a harmful change, the court determined in West, supra, that a psychological, psychiatric, or stress-related change in the human organism must directly result from a physically traumatic event or series of events in order to be viewed as being an injury. However, it was unnecessary for every traumatic event in a series causing psychological or psychiatric harm to involve physical rather than emotional trauma. Id. at 567. Addressing the facts that were present and to be considered on remand, the court stated that if the first in a series of traumatic events involves physical trauma and if the event is a direct and proximate cause of the worker’s psychological harm, the worker has sustained an “injury” under KRS 342.0011(1). Id.

The claimant bore the burden of proving every element of his claim, including the fact that he sustained an “injury” as defined by KRS 342.0011(1). Roark v. Alva Coal Corp., 371 S.W.2d 856 (Ky.1963). KRS 342.285 provides that an ALJ’s decision is “conclusive and binding as to all questions of fact.” As the finder of fact, it is the function of the ALJ to determine the credibility of witnesses, to draw reasonable inferences from the evidence, and to weigh conflicting evidence. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky.1985); Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15, 16 (Ky.1977). Having failed to convince the ALJ that his post-traumatic stress disorder is a direct result of a physical injury, the claimant’s burden on appeal is to show that the evidence in his favor was so overwhelming that the finding to the contrary was unreasonable. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky.1986).

In West, supra, there was evidence that the origin of the psychiatric harm was a physical encounter with a suspect. In the present case, however, the ALJ chose to rely on the medical evidence indicating that the cause of the claimant’s psychiatric harm was an after-the-fact exposure to scenes of physical trauma to others and that any physically traumatic events were insignificant. As explained in West, supra, KRS 342.0011(1) requires a psychiatric harm to be a direct result of a physically traumatic event. Nothing in the statute implies a legislative intent that the physical trauma causing a harmful change be to someone other than the claimant. Therefore, we are not convinced that physical trauma to another constitutes a physically traumatic event to the claimant for the purposes of KRS 342.0011(1).

Contrary to the claimant’s assertion, the evidence did not compel a finding that his psychiatric condition was a direct result of a physically traumatic event or series of events. He reported no serious physical trauma to any medical expert. Only Dr. Allen testified that scuffles and physical altercations led the claimant to perceive a potential threat to his life and contributed to causing his condition. He prepared the supplemental report addressing those events at the claimant’s request, one year after their last visit. All of the other experts viewed the claimant’s exposure to crime scenes as being the cause of his condition. We acknowledge that the result is harsh in this case, but it was the ALJ’s prerogative to rely on the other experts.

The decision of the Court of Appeals is affirmed.

COOPER, JOHNSTONE, ROACH, and WINTERSHEIMER, JJ., concur.

SCOTT, J., dissents by separate opinion in which LAMBERT, C.J., and GRAVES, J., join.

SCOTT, Justice,

dissenting.

It is undisputed that claimant suffers from post-traumatic stress disorder, that the condition is disabling, and that it is work-related. All three psychiatrists (Granacher, Ludwig and Ruth) as well as the psychologist, Allen, were in agreement on all points.

Moreover, the Administrative Law Judge (ALJ) determined that the condition was due to working gruesome crime scenes. In his opinion, however, it was not an “injury” as defined by KRS 342.0011(1) and therefore not compensable. See Lexington-Fayette Urban County Government v. West, 52 S.W.3d 564 (Ky.2001).

Having determined the evidence did not compel a finding that the condition resulted from a “physically traumatic event,” as explained in West, the Workers’ Compensation Board (Board), the Court of Appeals and this Court, have affirmed. For reasons set out, I respectfully dissent.

Claimant began working as a police officer for the Lexington-Fayette Urban County Government in October, 1986. His claim alleged that as of January 19, 2001, he suffered from post-traumatic stress disorder, panic attacks, and other psychological or psychiatric conditions that were attributable to a gradual, or cumulative, injury resulting from the violent nature of his job.

After completing the police academy, he began working on patrol. His duties included responding to accidents, taking burglary reports, and attempting to deter crime. He stated that he was involved in a number of fights over the years. On two occasions while he was a patrolman, he experienced life-threatening events, and these occasions included physical fights involving the claimant and the suspects being arrested. One occasion involved a domestic disturbance where the husband was physically beating his wife and when claimant tried to stop him, the angry husband pulled a knife on claimant and threatened to kill him. Claimant persuaded the suspect to put his knife away but they then fought physically and the suspect slammed claimant up against a wall. Claimant suffered scratches, bruises and soreness. On another occasion, claimant made a night traffic stop and asked the driver to produce his license and registration. The driver reached down under the seat and claimant thought he might be reaching for a weapon. Claimant drew his weapon and ordered him out of the car, but as he came out, he grabbed the barrel of claimant’s weapon. Claimant ordered him to let go and he did. Claimant put his gun in his holster but then the two fought and rolled around on the street. Later several other occupants of the car started getting out to assist the driver. Claimant drew his weapon again and threatened to shoot them if they did not get back in the car. A back-up officer soon arrived and helped claimant regain control. Again, claimant suffered minor injuries, including scratches and bruises.

On May 28, 1990, the claimant transferred to the Crime Scene Investigation Unit (CSI), where he was responsible for attending crime scenes, collecting, documenting, and preserving evidence therefrom. The work involved daily exposure to the details of extreme and graphic violence. As acknowledged by the Board, the claimant, “on almost a daily basis, would be called upon to observe scenes of incredible violence.”

In the early to mid-1990s, the claimant began to experience headaches and stomach discomfort. His symptoms worsened appreciably after working a scene where two of his fellow officers were shot. On occasion, he experienced chest pains severe enough that he went to the hospital, thinking he was having a heart attack. At the time, he attributed his symptoms to “burn out” from the long hours and irregular sleep patterns that resulted. Once while seeing Dr. Bailey, the doctor discussed the possibility that the origin of the symptoms might be psychological, but claimant asked that nothing be put in his records that would jeopardize his employment.

At some point, he began to have nightmares and thoughts he called “hauntings,” (flashbacks) in which he relived some of the life-threatening arrests he’d been involved in, as well as the crime scenes he’d worked. He also realized that he had over-reacted to certain situations, explaining how ... on one traffic stop, he’d drawn his pistol on an elderly lady when she began to reach under her seat — he was so afraid. Convinced he needed a job with regular hours, he requested another transfer. On August 5, 1996, he was transferred to the Auto Theft Unit. Yet, the flashbacks and nightmares became more intense and more frequent. He began to withdraw from contact with other people.

In July, 2000 he was transferred to the Robbery Unit. This involved everything from purse snatchings to bank robberies, but still exposure to violent crime scenes. He informed his superiors at the time that he was experiencing stress but was not specific about the cause or symptoms. Then, in October, 2000, he responded to the scene of a robbery where a body was found. As he approached the home — he saw the medical team — he went into a panic and broke down. Shortly thereafter, he told the Chief that his job was too stressful and was endangering his health.

On October 30, 2000, claimant transferred to Community Service, a light-duty assignment. He explained that thirty days of light duty were required before requesting disability retirement. During this period, he contemplated suicide and recognized that he needed professional help. He sought treatment with Dr. Allen, who diagnosed post-traumatic stress disorder and informed him of the diagnosis on December 11, 2000.

He was placed on medical leave on January 19, 2001, and has not worked since. He applied for disability retirement shortly thereafter. It was approved following evaluations by Drs. Ruth and Ludwig, both of whom provided evidence in this claim.

Initially he testified, as he understood it, that he suffered no “physical” injuries as a police officer. Later he acknowledged he had been involved in dangerous scuffles on at least two occasions. He did sustain “bruises and abrasions” in the incidents, but sought no medical treatment.

Dr. Ludwig, a psychiatrist, diagnosed major depressive disorder and post-traumatic stress disorder. He attributed the conditions entirely to the claimant’s exposure to scenes of violence and death in his work. In his opinion, they were permanently and totally disabling with regard to the claimant’s ability to work as a police officer.

Dr. Ruth, a psychiatrist, examined the claimant and concluded that he could not return to work as a police officer. In his opinion, the claimant’s post-traumatic stress disorder was caused by repeated exposure to signs of violence while investigating crime scenes. He assigned a 15% AMA impairment under the last edition that provided percentage ratings.

Dr. Allen, the treating clinical psychologist, took a history consistent with that to which the claimant testified. He diagnosed post-traumatic stress disorder due to the cumulative stress of the claimant’s work. He thought that, with treatment, the claimant would be able to perform work other than as a police officer.

In a supplemental report, Dr. Allen stated the claimant reported several occasions in which he was injured while in the line of duty and that some of those altercations reappeared consistently in his nightmares. In one particular event, he found it necessary to pull his gun on a knife-wielding assailant following a fight in which he was injured. In Dr. Allen’s opinion, repeated physical harm or threat of physical harm had increased the claimant’s general level of arousal and anxiety. He concluded, therefore, that the physical nature of the claimant’s work and “consequent or potential injuries” were “an important part of the core experiences which led to his Post-Traumatic Stress Disorder.”

When deposed by the employer, Dr. Allen was questioned about whether any physical events in which the claimant was involved had evoked the intense fear, helplessness, or horror that the DSM-IV required for a diagnosis of post-traumatic stress disorder. He stated that during physical altercations, such as being confronted by a knife-wielding husband during a domestic disturbance, the thought that one might be injured significantly is going to occur and did occur to the claimant. He stated that such events happened “within the context of a much larger picture of very traumatic, horrific events and situations that he has dealt with.” He characterized any attempt to attribute the claimant’s condition to any particular event as splitting hairs.

When questioned further about any physical injuries claimant may have reported, Dr. Allen noted that it was not his experience for an individual to report a medical problem such as a cut that required stitches as being a significant injury unless it required ongoing medical treatment. Dr. Allen explained that two classes of situations were involved, (1) situations in which the claimant perceived the potential of personal harm and (2) those in which he witnessed extraordinarily horrific crime scenes. He attributed the claimant’s condition to the cumulative effects of all of his experiences as a police officer, particularly to the CSI investigations. He viewed claimant’s investigation of the 1996 shooting of two of his fellow officers as being significant in precipitating his symptoms.

Dr. Granacher examined claimant and performed psychological testing. He reported that claimant sustained a 20% whole-body psychiatric impairment due to post-traumatic stress disorder. He attributed the condition to the cumulative emotional stress of claimant’s work, noting that the condition is common in police and fire personnel. He thought that claimant could be productive and successful in a different type of work. In Dr. Granacher’s opinion, claimant’s post-traumatic stress disorder was due to “psychological events” and was in no way a direct result of a “physical injury,” as he interpreted it.

More illuminating to this discussion, Dr. Granacher also testified that people suffering from PTSD will have nightmares and flashbacks of the events that caused the disorder. This is entirely consistent with claimant’s nightmares and flashbacks (hauntings), where he relives the gruesome crime scenes he’s worked, as well as the life-threatening events he personally experienced as an officer.

After summarizing the evidence, the ALJ noted that the case turned on whether claimant’s psychological, psychiatric, or stress-related condition was a direct result of a physical injury (to the claimant). KRS 342.0011(1). Dr. Allen, in his view, related the condition to a physically traumatic event. Relying instead on testimony from Drs. Ruth, Ludwig, and Granacher, the ALJ determined that claimant’s post-traumatic stress disorder and resulting impairment were not a direct result of a “physical injury.”

For the purposes of Chapter 342, the word “injury” is a term of art. Before December 12, 1996, KRS 342.0011(1) defined “injury” as being a harmful change in the human organism. Since December 12, 1996, KRS 342.0011(1) has defined an “injury” as being a “work-related traumatic” event, or series of such events, that cause a harmful change in the human organism. In the same view, the statute requires that a psychological, psychiatric, or stress-related change in the human organism must be “a direct result of a physical injury.”

Noting that KRS 342.0011(1) now defines an “injury” as being a traumatic event, or series of events, rather than a harmful change, this court determined in Lexington-Fayette Urban County Government v. West, 52 S.W.3d 564 (Ky.2001), that a psychological, psychiatric, or stress-related change in the human organism must directly result from a “physically traumatic event” or series of events in order to be viewed as being an injury. However, it was unnecessary for every traumatic event in a series causing psychological or psychiatric harm to involve physical rather than emotional trauma. Id. at 567.

In West, this court addressed the facts that were present and to be considered on remand, stating that if the first in a series of traumatic events involves physical trauma and if the event is a direct and proximate cause of the worker’s psychological harm, the worker has sustained an “injury” under KRS 342.0011(1). Id. Like Officer West, claimant sustained both physical and emotional trauma, but in his case the emotional trauma was due to a frequent exposure to scenes of graphic physical violence. He supported his claim with evidence conducive to a belief that his PTSD was caused by a mixture of “physically traumatic events” to himself and others.

In this case, the medical evidence is unanimous; the claimant suffers from PTSD. With this in mind, it is important to point out that one of the DSM-IV diagnostic criteria for PTSD is a requirement that the person experienced or witnessed or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others. It is notable that included among those who are particularly susceptible to PTSD, due to the frequency of their exposure to such events, are “first responders,” such as soldiers, police officers (as in the case at bar and West), firefighters and rescuers. One need only recall the numerous veterans with PTSD that have returned physically unscathed from war, yet mentally or emotionally damaged by the shock, or gruesomeness, of what physically happened to others.

A thorough understanding of the circumstances which led the legislature to revise the definition of injury in KRS 342.0011(1) in 1994 and to impose even more sweeping amendments to the Kentucky Workers’ Compensation Act in 1996 includes the knowledge that it was largely in response to what many considered a lack of “objectivity” in who was truly injured and deserving of compensation benefits by reason of disability produced by work. Thus, the legislature enacted more precise guides and criteria as a requisite for compensability. This included the mandatory use of the AMA’s Guides to the Evaluation of Permanent Impairment pursuant to KRS 342.730 and revision of certain definitions in KRS 342.0011. KRS 342.0011(1), (11), and (33)-(36). However, none of the amendments signaled an intention on the part of the General Assembly to retreat from the well-established concept that workers’ compensation statutes are to be interpreted in a manner consistent with their munificent and beneficent purpose. Jewish Hospital v. Ray, 131 S.W.3d 760 (Ky.App.2004); Dick v. International Harvester Co., 310 S.W.2d 514, 515 (Ky.1958); see also KRS 446.080.

The operative language of KRS 342.0011(1) which was seen as an impediment to compensability by the Administrative Law Judge in the case at bar is that which states that ... “injury” ... shall not include a psychological, psychiatric, or stress-related change in the human organism, unless it is a direct result of a physical injury. Certainly, if the “physical injury” referred to must be an injury to the disabled worker seeking compensation, then it was within the ALJ’s authority to rely on Drs. Ruth, Ludwig, and Granacher, rather than Dr. Allen. However, given the DSM-IV criteria referred to above, which includes threats and injuries to others, the definition of injury should be construed as meaning that the “physical injury” or “physically traumatic event,” or events, which must constitute a nexus between the psychological injury and physical injury, may include events involving physical trauma to others. Such an interpretation promotes the munificent and beneficent purpose of the Act while maintaining objectivity. It is consistent with West and medical science, and more importantly, emphasizes the significance of the “physically traumatic event,” or events, which we held in West as the meaning of “physical injury” under KRS 342.0011(1) post December 12,1996.

LAMBERT, C.J., and GRAVES, J., join this dissent.

      . At oral argument, the claimant referred to testimony by Dr. Granacher regarding changes that occur in the brains of individuals with post-traumatic stress disorder. Relying on McCowan v. Matsushita Appliance Co., 95 S.W.3d 30 (Ky.2002), he argued that those changes would be compensable as physical changes that resulted from emotional trauma; however, the argument was not preserved for our review because he failed to raise it to the ALJ.

      . American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition.


source: Caselaw Access Project

author: GRAVES, Justice.

license: Public Domain

text:
    HILLTOP BASIC RESOURCES, INC.; Addison G. Stevens; Myrna Stevens; Rodney Woods; Sandra Woods; Donald Gene Hodges; Niki Carol Hodges; Rosalie Kippler; William E. Kippler; Wanda Kippler; Carl Taber; and Cynthia Taber, Appellants/Cross-Appellees, v. COUNTY OF BOONE, Kentucky; Boone County Fiscal Court, Appellees/Cross-Appellants.
    No. 2003-SC-1052-DG, 2004-SC-0003-DG.
    Supreme Court of Kentucky.
    Dec. 22, 2005.

      Wm. T. Robinson III, Luann Devine, Covington, Paul B. Whitty, Louisville, for Appellants.
    Jeffrey C. Mando, Mary Ann Stewart, Adams, Stepner, Woltermann & Dusing, PLLC, Covington, for Appellees.
   GRAVES, Justice.

Both Appellants, Hilltop Basic Resources, Inc., et. al. [hereinafter “Hilltop”], and Appellees, County of Boone, Kentucky, et. al. [hereinafter “Boone County”], appeal a Court of Appeals order vacating and remanding a judgment of the Boone Circuit Court. This Court granted discretionary review, and we now reverse the Court of Appeals and remand the matter for further consideration.

Hilltop sought to mine underground limestone in a rural area of Boone County not zoned for subsurface mining. Consequently, on December 19, 1999, Hilltop applied to the Boone County Planning Commission for a zoning map amendment. After extensive review, the Boone County Planning Commission recommended, by a vote of seven (7) to five (5), that an amendment be granted. Once the Planning Commission made its recommendation, the matter reverted by statute to the Boone County Fiscal Court for approval. KRS 100.211. The administrative record submitted to the Boone County Fiscal Court contained findings both for and against the amendment. The Boone County Fiscal Court voted three (3) to zero (0) to override the Planning Commission’s recommendation, and thus, deny Hilltop’s application for zoning amendment.

Hilltop appealed the Fiscal Court’s decision to the Boone Circuit Court, alleging (1) that the Fiscal Court acted arbitrarily and capriciously in disregard of the record; and (2) that it was denied due process before the Fiscal Court due to the bias of two of its members. Hilltop alleged that the members were biased because they made both public and private comments indicating they were “steadfast opponents to mining activities generally.” The Boone Circuit Court affirmed the Fiscal Court’s decision, finding that it was neither arbitrary nor erroneous as a matter of law.

The Court of Appeals reversed the Circuit Court’s ruling, holding that prejudgment and bias by the two Fiscal Court members operated to deprive Hilltop of procedural due process. Specifically, the evidence suggested that the members communicated, in both public and private messages to their constituents prior to a hearing on the matter, their opposition to subsurface mining in general. One of the members was alleged to have said that she “would never vote for a mine in this area of Boone County” because “[t]he people in Boone County just don’t want it.” Judge Knopf dissented from the majority’s opinion, arguing that it departed from the recognized standard of review in zoning cases and failed to appreciate the legislative aspects of the process. From this decision, we granted discretionary review to both parties. We now reverse and remand, finding nothing in this record which violates Hilltop’s right to procedural due process of law.

The basic principles controlling this case were first set forth in comprehensive fashion over forty (40) years ago in American Beauty Homes Corp. v. Louisville & Jefferson County Planning & Zoning Comm’n, 379 S.W.2d 450 (Ky.1964) by the esteemed and oft-quoted Commissioner Clay. As in this case, American Beauty Homes involved an owner of a tract of land who sought to have the zoning classification changed for that tract of land from residential to commercial/industrial. Id. at 452. At the time, KRS 100.057 directed that all zoning determinations were to be reviewed de novo by the judiciary. Id. at 453. Commissioner Clay determined that this statute was unconstitutional in violation of the separation of powers doctrine, holding that zoning determinations were a uniquely legislative function which could not be imposed on, assigned to, or conferred upon the judiciary or agents thereof. Id. at 454.

Our predecessor Court went on to explain that since zoning determinations are purely the responsibility and function of the legislative branch of government, such determinations are not subject to review by the judiciary except for the limited purpose of considering whether such determinations are arbitrary. Id. at 456. Arbitrariness review is limited to the consideration of three basic questions: (1) whether an action was taken in excess of granted powers, (2) whether affected parties were afforded procedural due process, and (3) whether determinations are supported by substantial evidentiary support. Id.

Since American Beauty Homes, our Courts have continued to review zoning determinations affecting individual property owners pursuant to the arbitrariness framework set forth above. See, e.g., Danville-Boyle County Planning and Zoning Comm’n v. Prall, 840 S.W.2d 205, 208 (Ky. 1992); City of Louisville v. McDonald, 470 S.W.2d 173, 178 (Ky.1971); Hougham v. Lexington-Fayette Urban County Gov., 29 S.W.3d 370, 373 (Ky.App.1999); Fritz v. Lexington-Fayette Urban Cty. Gov., 986 S.W.2d 456, 458 (Ky.App.1998). In this case, the Court of Appeals found that the Fiscal Court’s decision was arbitrary because it was made in violation of Hilltop’s right to procedural due process. Specifically, the Court of Appeals held that procedural due process included a right to have zoning determinations made by an impartial tribunal and that the Fiscal Court did not operate as an impartial tribunal in this case since two of its members had expressed general viewpoints about the case and discussed such viewpoints with several of their constituents prior to a hearing on the matter. For the reasons set forth below, we disagree.

The Court of Appeal’s opinion strays in this instance by making the unsupported and erroneous assertion that procedural due process by an administrative or legislative body includes a broad and general right to an impartial tribunal. The Fiscal Court is not a judicial or adjudicatory body and hence, it cannot and should not be classified or thought of as a tribunal. See Black’s Law Dictionary 1512 (7th ed.1999) (defining tribunal as “a court or other adjudicatory body” and “the seat, bench, or place where a judge sits”). Although we have frequently referred to the process of making zoning determinations as being “quasi judicial” or “quasi adjudicatory,” it does not follow that the legislative bodies making such determinations are performing judicial functions (and thus, are subject to the same rules of conduct or procedure as judicial officers). See, e.g., McDonald, supra, at 178-79 (“it is, nevertheless, true that rezoning a parcel of property is intrinsically not a judicial function”).

More importantly, the right to an impartial tribunal is distinctly judicial in concept and function and is derived from the fundamental right of every criminal defendant to receive a fair trial. See Rose v. Clark, 478 U.S. 570, 577, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986). In allegiance to this concept of always endeavoring to ensure completely fair and unbiased determinations of guilt or innocence, judicial officers are held to very stringent guidelines and rules of conduct in order to ensure the highest possible degree of impartiality in both fact and appearance. See, e.g., Commonwealth v. Brandenburg, 114 S.W.3d 830, 834 (Ky.2003) (quoting In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942, 946 (1955)); see also Debra Lyn Basset, Judicial Disqualification in the Federal Appellate Courts, 87 Iowa L.Rev. 1213 (2002).

In the administrative or legislative context, however, the concept of impartiality is, by necessity and by function, more relaxed and informal. See National-Southwire Aluminum Co. v. Big Rivers Electric Corp., 785 S.W.2d 503, 515 (Ky.App.1990); Kelly v. Board of Education of Monticello Independent School Dist., 566 S.W.2d 165, 167-68 (Ky.App.1977); see also Kentucky Cent. Life Ins. Co. v. Stephens, 897 S.W.2d 583, 590 (Ky.1995) (“Procedural due process is not a static concept, but calls for such procedural protections as the particular situation may demand.”). For example, although such an arrangement would create an unacceptable appearance of bias in the judicial arena, this Court has held that the merging of the investigative and adjudicative roles in an administrative setting does not likewise create an unacceptable appearance of bias. Nicholson v. Judicial Retirement & Removal Comm’n, 562 S.W.2d 306 (Ky.1978); see also Hougham, supra, at 374 (ex parte contacts by members of legislative bodies making individual zoning determinations are generally not prohibited, nor do they deny affected parties due process of law).

The fundamental requirement of procedural due process is simply that all affected parties be given “the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (internal citation and quotation omitted). Procedural due process in the administrative or legislative setting has widely been understood to encompass “a hearing, the taking and weighing of evidence if such is offered, a finding of fact based upon a consideration of the evidence, the making of an order supported by substantial evidence, and, where the party’s constitutional rights are involved, a judicial review of the administrative action.” Morris v. City of Catlettsburg, 437 S.W.2d 753, 755 (Ky.1969), see also Kaelin v. City of Louisville, 643 S.W.2d 590, 591 (Ky.1982); Wyatt v. Transposition Cabinet, 796 S.W.2d 872, 873-74 (Ky.App.1990). The “right to an impartial tribunal” is nowhere to be found within this list, and rightfully so, since the right, as it is commonly conceived within the judicial context, cannot be guaranteed (nor need it be) in the administrative or legislative setting.

However, decision makers are not free to be biased or prejudicial when performing nonjudicial functions. To the contrary, any bias or prejudicial conduct which demonstrates “malice, fraud, or corruption” is expressly prohibited as arbitrary. National-Southwire Aluminum, supra, at 515. Furthermore, decisions tainted by conflicts of interest or blatant favoritism are also prohibited as arbitrary. See McDonald, supra, at 177. On the other hand:

Mere familiarity with the facts of a case gained by an agency [or other nonjudicial body] in the performance of its statutory role does not, however, disqualify a decisionmaker.... Nor is a decision-maker disqualified simply because he has taken a position, even in public on a policy issue related to the dispute, in the absence of a showing that he is not capable of judging a particular controversy fairly on the basis of its own circumstances ....

Kelly, supra, at 168 (quoting Hortonville Joint School District No. 1 v. Hortonville Education Assoc., 426 U.S. 482, 493, 96 S.Ct. 2308, 2314, 49 L.Ed.2d 1, 9 (1976)); see also Mark W. Cordes, Policing Bias and Conflicts of Interest in Zoning Decisionmaking, 65 N.D. L.Rev. 161 (1989) (arguing that distinctions should be made between bias based on opinion and bias based on self-interest).

At its core, arbitrariness review is concerned primarily “with the product [of legislative or administrative action], and not with the motive or method which produced it.” National-Southwire Aluminum, supra, at 515; see also Louisville & Jefferson County Metropolitan Sewer Dist. v. Seagram & Sons, Inc., 307 Ky. 413, 211 S.W.2d 122, 125 (1948). A focus on the product of the action (rather than the motive behind the action) balances the need to ensure fair and nonarbitrary treatment before a legislative or administrative body with the equally compelling need to avoid undue infringement upon the legislative or nonjudicial aspects of the process or function of such bodies. Under the circumstances as they are presented in this case, we agree with Judge Knopf that Hilltop’s right to receive fair and nonarbi-trary treatment before the Fiscal Court is adequately protected (if not best accomplished) by adhering to the traditional standards which are set forth in American Beauty Homes, supra. These standards ensure, at a minimum, that all actions are taken on the “basis of a record and on the basis of substantial evidence.” McDonald, supra, at 178.

In this case, there are no allegations of malice, fraud, corruption, or other conflicts of interest on the part of the Fiscal Court members. Moreover, despite the members’ preexisting opinions regarding the community effects of subsurface mining in general, we find nothing in the record which indicates that these members did not seriously or honestly consider Hilltop’s proposal. Rather, the allegations involve prejudgment or bias as to the general policy of whether to permit subsurface mining in Boone County. General policy-based controversies such as these are best ferreted out in the legislative arena, i.e., through expression of the will of the voters in the electoral process. Id.

The circumstances as they are reflected on the record in this case are not sufficient to deny Hilltop procedural due process of law. The Court of Appeals erred in failing to consider Hilltop’s other arguments concerning whether the Fiscal Court’s determination was supported by substantial evidence on the record and whether the determination was in conformance with the comprehensive plan and applicable zoning law. Because of these omissions, the case must be remanded back to the Court of Appeals for further consideration of these issues.

The decision of the Court of Appeals is reversed; and the case is remanded for further proceedings consistent with this opinion.

All concur.

      . Indeed, Commissioner Clay warned that characterizing the work of bodies making zoning determinations as “quasi judicial" or "quasi adjudicatory” was ill-advised since the use of such phrasing was apt to serve little purpose but to confuse. American Beauty Homes, supra, at 458 n. 20 ("Though such an agency may adjudicate, it does not exercise judicial power and the term, instead of correlating the agency with the judiciary, may mean exactly the opposite.”).


author: LAMBERT, Chief Justice.

text:
    Curtis J. HAMILTON III, Appellant, v. KENTUCKY BAR ASSOCIATION, Appellee.
    No. 2004-SC-000105-KB.
    Supreme Court of Kentucky.
    Dec. 22, 2005.

      Curtis James Hamilton III, Henderson, Counsel for Appellant.
    Bruce K. Davis, Executive Director, Linda Gosnell, Chief Bar Counsel, Kentucky Bar Association, Frankfort, Counsel for Appellee.
   OPINION AND ORDER

LAMBERT, Chief Justice.

The Kentucky Bar Association (KBA) recommends that this Court enter an Order finding Curtis J. Hamilton III guilty of violating SCR 8.130 — 1.15(b) and (c).

Hamilton, KBA number 87172, was admitted to practice law in Kentucky on May 1, 1998. Hamilton was also admitted to practice in Ohio in 1995. In September 1997, he became employed as an associate in the law firm of Neel Wilson & Clem (NWC) in Henderson, Kentucky. While working as an associate for NWC he entered into a contract of employment with James and Margaret Gardner on behalf of the firm for professional legal services. Per the employment contract, NWC was to represent the Gardners and their children with regard to personal injury claims arising from an automobile accident on August 12,1997.

While the Gardner case was pending, the partners of NWC met with Hamilton on several occasions regarding his overall professional performance. A memorandum, dated April 13, 2000, outlined certain remedial actions for Hamilton to take. Subsequent thereto, the partners of NWC met with Hamilton and encouraged him to find employment elsewhere. He thereafter tendered a letter of resignation to NWC dated July 14, 2000. The letter advised the partners that he had accepted a position with the law firm of Morton & Bach. Hamilton also advised the partners that he intended to contact clients he was serving at NWC to determine if they wished to stay with NWC or continue with him at his new law firm. In Hamilton’s letter of resignation to NWC he wrote the following:

With respect to contingency fee clients, I will advise each of them of the nature of the equitable quantum meruit lien your firm has for any services I have provided while an associate with Neel Wilson & Clem, and that any expenses advanced by Neel Wilson & Clem will be paid by me to the firm pursuant to their contract with the firm.

(italics in original). On July 18, 2000, Hamilton wrote the Gardners requesting that they sign a release to permit their file to be transferred to him. Mr. Gardner signed the release, which stated in pertinent part that he was “responsible for any fees and expenses incurred in my case as performed by the attorneys of your firm [NWC].” Thereafter, on August 23, 2000, Hamilton entered into a contract to provide legal services to the Gardners on behalf of Morton & Bach.

Previously, on July 28, 2000, Hamilton wrote a letter to W.C. Wilson, III, a partner of NWC, giving Mr. Wilson an update on certain matters and stating the following regarding contingency fee cases which Hamilton took with him:

With respect to the contingency fee cases, I have explained to each such client that you will be paid a portion of my overall attorney’s fee to satisfy your lien against any settlement or judgment. I will pay you out of my trust account any sums due and owing, and will send you an appropriate release of the lien. I will then forward the release to my clients with their portion of the settlement.

On October 31, 2000, Charles Edward Clem, a partner of NWC, wrote a letter to Hamilton regarding the status of several contingency fee cases that he was handling. The Gardner case was one such case. Hamilton did not promptly respond to Mr. Clem’s inquiries regarding the contingency fee eases. On April 10, 2001, Hamilton wrote Mr. Clem and provided updates regarding accounts which were delinquent and specifically stated, “when I left, I did advise all of my clients that they owed you for all services incurred while I was an associate at Neel Wilson & Clem.” However, Hamilton did not advise Mr. Clem that he had settled the Gardner’s case several weeks earlier and that he had deposited all of the attorney’s fees and expenses from the settlement into his new law firm’s general account.

On March 9, 2001, prior to writing Mr. Clem, Hamilton filed a petition for the appointment of a guardian for one of the minor children in the Gardner case for the purpose of seeking approval of the settlement. Hamilton did not notify NWC that the matter was about to settle or that a hearing in this regard was going to take place. Petitions for approval of the settlement filed by Hamilton requested that the entire amount of attorney’s fees be approved and paid to Hamilton’s new law firm,, despite his knowledge and acknowl-edgement of NWC’s claim. Hamilton did not advise the court of NWC’s claim, and based on his representations, the Indiana trial court entered a Guardianship Order and an Order approving settlement on March 14, 2001. He also failed to notify his opposing counsel that his former law firm had a claim against the settlement proceeds in the Gardner case. On April 2, 2001, the Indiana court dismissed the Gardner case, with prejudice.

On March 12, 2001, checks in the amount of $45,000 and $2,500 were delivered to Hamilton by the defendants in the Gardner case in accordance with the Settlement Agreement. These checks were deposited in the escrow account controlled by Morton & Bach and on March 28, 2001, Hamilton caused a check in the amount of $13,865.14 to be written from the escrow account to the firm’s general fund for payment of attorney’s fees relating to the Gardner’s settlement. Thereafter, Hamilton wrote a letter to the Gardners and enclosed a Settlement Accounting and Release along with checks. Among other things, the Settlement Accounting and Release disclosed to the Gardners that of the $1,390.94 in expenses which were advanced $607.81 represented expenses incurred at NWC. The $607.81 collected from the Gardners was ostensibly for the purpose of paying expenses advanced by NWC, but Hamilton never paid NWC, nor were the Gardners informed that the money they had paid towards NWC’s expenses was not properly applied. The Settlement Accounting and Release also provided in part as follows:

Clients and Attorney understand that Attorney’s former firm, Neel Wilson & Clem, may have a claim against the attorney’s fees collected, and that any claim of Neel Wilson & Clem will be paid by Morton and Bach to that law firm from the Attorney’s Fees and Expenses collected above. However, at this time Neel Wilson & Clem has not provided Clients, Attorney, opposing counsel, the Court, or Indiana Insurance of any claim it may have. Clients agree to notify Attorney of any such claim asserted by Neel Wilson & Clem immediately upon receipt thereof.

This provision was inserted in the Settlement Accounting and Release despite the fact that Hamilton had written letters acknowledging NWC’s claim, the original contract signed by the Gardners acknowledged NWC’s claim and the authorization and release signed by Mr. Gardner acknowledged NWC’s claim.

Hamilton has asserted that the above language was in the Settlement Accounting and Release because he believed that Indiana law would apply to the matter and according to his understanding of Indiana law, a claimant was required to file a lien in the court record within sixty (60) days of the final judgment. However, despite such Indiana law, Hamilton dispersed all of the settlement funds prior to the expiration of the statutory sixty (60) days. After settling the Gardner case, Hamilton paid no portion of the attorney’s fees or expenses to NWC. Hamilton did not advise NWC of the settlement and did not provide NWC with a copy of the settlement statement. Although the record is somewhat unclear, apparently one of NWC’s partners learned of the settlement in May 2001 during a conversation with someone in the local courthouse. Thereafter, one of NWC’s partners contacted Hamilton to inquire about the settlement and Hamilton told him that NWC was not entitled to anything he earned in the Gardner Case.

On September 27, 2002, the Inquiry Commission charged Hamilton with violating SCR 3.130-1.15(b) and (c) by failing to promptly notify a third party claimant (NWC) of the receipt of settlement proceeds in which the third party had an interest; failing to promptly deliver to that third party funds that it was entitled to receive; and falling to keep the funds in a separate bank account. He was also charged with violating SCR 3.130-8.3(c) by being deceitful in faffing to notify the trial court of the presence of another claim in his motion to have fees approved by the court; by faffing to fully advise the client of the import of that claim; and by faffing to notify his former law firm of the pen-dency of the settlement, the motion for trial court approval, the disposal of monies or the availability of funds to be paid on any fee claims it had.

An evidentiary hearing before the Trial Commissioner, Honorable Mark S. Medlin, was held on August 26, 2004. Hamilton and the KBA presented witness testimony and introduced documentary evidence. On January 28, 2005, the Trial Commissioner filed his Posh-Trial Opinion and Recommendation. Thereafter, the Trial Commissioner filed an Amended Report on March 17, 2005. The Trial Commissioner found that Respondent violated SCR 3.130-1.15(b) and SCR 3.130-1.15(c). He also found that the KBA did not meet its burden of proof in connection with the charge under SCR 3.130-8.3(c). The Trial Commissioner recommended that Hamilton be suspended from the practice of law for a period not to exceed thirty (30) days and further recommended that Hamilton be required to attend, in addition to continuing legal education requirements, not less than eight (8) hours of remedial courses in professional responsibility as approved by the Office of Bar Counsel, including at least four (4) hours dealing with the proper handling and administration of funds in Hamilton’s trust accounts.

Hamilton appealed his case to the Board of Governors (Board). Hamilton filed a brief with the Board and appeared pro se. He admitted in his brief to the Board that his conduct was a violation of SCR 3.130-1.15(b) and (c).

SCR 3.130-1.15(b) provides:

Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.

SCR 3.130-1.15(c) provides:

When in the course of representation a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved.

In his brief to the board, Hamilton admitted that he committed the violation and appealed to the board for leniency in the recommended sanction. We accept the recommendation of the KBA regarding Hamilton’s discipline.

Therefore it is ORDERED that:

1. Curtis J. Hamilton III is hereby found guilty of the charge in KBA File Number 8609, for the count setting forth his violation of SCR 3.130 — 1.15(b) and (c).

2. He is hereby publicly reprimanded, and notice and publication of this Order is granted for the benefit of all members of the bar and public.

3. He shall complete eight (8) hours of remedial courses in professional responsibility as approved by the Office of Bar Counsel, including at least four (4) hours dealing with the proper handling and administration of funds in his trust accounts.

4. He shall pay all costs associated with this action as provided by SCR 3.450 in the amount of $3,391.48 for which execution may issue from this Court upon finality of this order.

This Court further finds that Hamilton is not guilty of the count of the charge for his alleged violation of SCR 3.130-8.3(c).

All concur except WINTERSHEIMER, J., who would grant review.


text:
    COMMONWEALTH of Kentucky, Appellant, v. Michael KELLY, Appellee.
    No. 2004-SC-0385-DG.
    Supreme Court of Kentucky.
    Dec. 22, 2005.

      Gregory D. Stumbo, Attorney General, George G. Seelig, Courtney J. Hightower, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, for Appellant.
    Robin L. Webb, Grayson, for Appellee.
   GRAVES, Justice.

Appellee, Michael Kelly, was indicted on three counts of trafficking in a controlled substance and one count of driving under the influence. Appellee moved to dismiss the indictments, arguing that the evidence supporting his indictments was seized in violation of his right to be free from unreasonable seizures. U.S. Const, amend. IV and XIV; Ky. Const. § 10. The trial court granted Appellee’s motion, finding that the evidence should be suppressed due to the fact that it was obtained as the result of an unlawful seizure. The Commonwealth appealed. The Court of Appeals affirmed the trial court’s order in a two to one (2-1) vote. We granted discretionary review and for the reasons set forth herein, we now reverse the decision of the Court of Appeals.

The facts, as presented before the trial court indicated the following: On October 10, 2002, Lexington police received a call from two persons who identified themselves simply as Waffle House employees. The employees reported that they suspected a recent patron of their restaurant of being intoxicated and that the suspect was about to drive away from the restaurant. They stated their location and gave details about the suspect and his vehicle. The suspect was described as being a white male and the vehicle was identified as being a red, older model Camaro with Tennessee tags. Lexington dispatch immediately disseminated the information through an “attempt to locate” broadcast which was sent to all police cruisers in the area. Officer Hilton Hastings responded to the broadcast and drove to the Waffle House restaurant.

Shortly after responding to the broadcast, Officer Hastings arrived at the Waffle House location reported by the callers. Upon pulling into the parking lot, Officer Hastings saw two people standing outside whom he assumed were the employees who had reported the suspected drunk driver. Upon seeing the police vehicle, the two people then started pointing in the direction of a night club across the street from the restaurant. When Officer Hastings looked toward the area where the people were pointing, he immediately spotted a red, older model Camaro. Officer Hastings drove across the street to the night club and followed the Camaro to a nearby hotel. He then activated his emergency lights and proceeded to conduct an investigatory stop of the vehicle and its driver, who identified himself as Appellee, Michael Kelly.

Officer Hastings candidly stated that prior to stopping Appellee’s vehicle, he did not personally observe any criminal or suspicious activity on the part of Appellee. However, once the vehicle was stopped, he did detect a strong smell of alcohol emanating from the vehicle. He also conducted several field sobriety tests which Ap-pellee failed. The officer then searched Appellee’s person and found thirty-eight (38) Oxycontin pills, $2,800 in cash, and another pill bottle. A search of the vehicle revealed more pills and a gun. At this point, Appellee was arrested and later indicted on three counts of trafficking and one count of driving under the influence. The trial court found that the initial stop of Appellee’s vehicle was unlawful and dismissed the indictments. The Commonwealth now appeals the trial court’s ruling to this Court. For the reasons set forth below, we vacate the trial court’s order and remand for further proceedings.

I. LAWFULNESS OF THE INVESTIGATORY STOP

It is well-established that investigatory stops, such as the one performed by Officer Hastings in this case, are permissible if the officer has reasonable and articu-lable suspicion that a violation of the law is occurring. Collins v. Commonwealth, 142 S.W.3d 113, 115 (Ky.2004) (citing Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660, 673 (1979)). When reviewing a trial court’s order regarding whether certain evidence should be suppressed, we defer to the trial court’s factual findings unless they are clearly erroneous and we review de novo the trial court’s application of the law to the facts found. Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky.2004).

In this case, there seems to be no dispute as to the facts as they have been recounted herein. Rather, the parties dispute whether the facts amount to “reasonable suspicion,” and specifically, whether the tip should be classified as “anonymous.” Both of these determinations involve applying law to the facts found, and thus, we review these questions de novo. See, e.g., Commonwealth v. Banks, 68 S.W.3d 347, 349 (Ky.2001), United States v. Pasquarille, 20 F.3d 682, 687 (6th Cir.1994).

We find that the setting and circumstances of this case do not support a conclusion that the tip was truly “anonymous.” While the tipsters did not give their names, they (1) identified themselves as employees of the Waffle House restaurant; and (2) provided the location of the particular restaurant where they worked. This information alone raises a strong presumption that these informants could likely be located in the event that their tip was determined to be false or made for the purpose of harassment. However, in addition to the identifying information given over the telephone, Officer Hastings reasonably believed that he had face-to-face contact with the actual tipsters when he pulled into the parking lot of the restaurant and observed two people (1) waiting outside for him; and (2) pointing toward a vehicle that had the same description as the one provided in the dispatch broadcast. Cf. State v. Ramey, 129 Ohio App.3d 409, 717 N.E.2d 1153, 1158 (Oh.App.1998) (“There is nothing even remotely anonymous, clandestine, or surreptitious about a citizen stopping a police officer on the street to report criminal activity.”). When all these facts are considered in their totality (including and especially the pre-detention investigation which verified most of the information given by the tipsters), it is clear to us that this tip was generated from identifiable informants as opposed to anonymous informants.

The significance of whether this tip was generated from “anonymous” informants or not bears upon our overall determination of reliability. In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court stated that “an informant’s ‘veracity,’ ‘reliability’ and ‘basis of knowledge’ are all highly relevant in determining the value of his report.” Id. at 230, 103 S.Ct. at 2328. When determining whether a set of facts is sufficient to generate reasonable suspicion, we must look at the totality of the circumstances in each case. Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).

In cases involving identifiable informants who could be subject to criminal liability if it is discovered that the tip is unfounded or fabricated, such tips are entitled to a greater “presumption of reliability” as opposed to the tips of unknown “anonymous” informants (who theoretically have “nothing to lose”). See Florida v. J.L., 529 U.S. 266, 276, 120 S.Ct. 1375, 1381, 146 L.Ed.2d 254 (2000) (Kennedy, concurring) (“the ability of the police to trace the identity of anonymous telephone informants may be a factor which lends reliability to what, years earlier, might have been considered unreliable anonymous tips”). Moreover, the tip in this case is entitled to even greater deference than it normally might be accorded due to its status as a “citizen informant” tip. See Gates, supra at 233, 103 S.Ct. at 2330 (“rigorous scrutiny of the basis of [a citizen informant’s] knowledge [is] unnecessary”). What distinguishes a “citizen informant” tip from other types of tips is the fact that such tipsters are almost always bystanders or eyewitness-victims of the alleged criminal activity. Pasquarille, supra, at 689 (“Thus, because the informant’s account was based on firsthand observations as opposed to idle rumor or irresponsible conjecture, we presume that the statements are reliable.”) (internal quotations and citations omitted); see also, Gates, supra, at 233-35, 103 S.Ct. 2317 (“[E]ven if we entertain some doubt as to an informant’s motives, his explicit and detailed description of wrongdoing, along with a statement that the event was observed firsthand, entitles his tip to greater weight than might otherwise be the case.”). “Whereas other informants, who are often intimately involved with the persons informed upon and with the illegal conduct at hand, may have personal reasons for giving shaded or otherwise inaccurate information to law enforcement officials, such is not true of bystanders or eyewitness-victims who have no connection with the accused.” United States v. Phillips, 727 F.2d 392, 397 (5th Cir.1984) (internal quotations and citations omitted).

Indeed, many federal and state jurisdictions have held that tips provided by citizen informants who either (1) have face-to-face contact with the police; or (2) may be identified are generally competent to support a finding of reasonable suspicion (and in some cases, probable cause) whereas the same tip from a truly anonymous source would likely not have supported such a finding. See, e.g., Pasquarille, supra, at 687-88 (face-to-face contact with police by an anonymous citizen informant who simply identified himself as “a transporter of prisoners” was sufficient to support a finding of probable cause where informant claimed he had just witnessed an individual attempting to sell drugs at a truck stop); United States v. Perkins, 363 F.3d 317, 323 (4th Cir.2004) (“Where the informant is known or where the informant relays information to an officer face-to-face, an officer can judge the credibility of the tipster firsthand and thus confirm whether the tip is sufficiently reliable to support reasonable suspicion.”); United States v. Tucker, 305 F.3d 1193, 1201 (10th Cir.2002) (tips from identifiable citizen informants are presumed to be reliable); Pasiewicz v. Lake County Forest Preserve Dist., 270 F.3d 520, 524 (7th Cir.2001) (‘When police officers obtain information from an eyewitness or victim establishing the elements of a crime, the information is almost always sufficient to provide probable cause for an arrest in the absence of evidence that the information, or the person providing it, is not credible.”); Frazer v. State, 80 Ark.App. 231, 94 S.W.3d 357, 361 (2002) (telephone tip by a citizen informant who gave his name was sufficient to support an investigatory stop of a vehicle that the informant suspected was being operated by an intoxicated person); State v. Larson, 135 Idaho 99, 15 P.3d 334, 336 (App.2000) (“Where the information comes from a known citizen informant rather than an anonymous tipster, the citizen’s disclosure of her identity, which carries the risk of accountability if the allegations turn out to be fabricated, is generally deemed adequate to show veracity and reliability.”); State v. Manuel, 796 So.2d 602, 605 (Fla.App.2001) (“A tip by a citizen-informant, as opposed to an anonymous tipster, is entitled to a presumption of reliability and does not require further corroboration to provide the requisite reasonable suspicion for a stop.”).

Finally, the reliability and veracity of the tip in this case was corroborated by Officer Hastings to the extent that: (1) he was able to verify most of the details given in the tip, including the identity of the tipsters; and (2) he was able to personally observe the tipsters. When all of these circumstances are considered in their totality, we are unable to conclude that Officer Hastings lacked the requisite reasonable suspicion to justify his stop of Appellee that night.

Appellee argues, nonetheless, that this case may be distinguished on the following fact: at the hearing, Officer Hastings admitted that it is police department policy to stop any vehicle or person that is identified through an “attempt to locate” message which is broadcast over the dispatch. Thus, he argues that even if Officer Hastings did not identify and personally observe the actual tipsters in this case, he would have conducted the stop anyway once he was able to verify the identifying information broadcast over the dispatch. Assuming that this is true, it is of no consequence to this decision since the subjective intentions of police officers are irrelevant to judicial determinations of reasonableness. Wilson v. Commonwealth, 37 S.W.3d 745, 749 (Ky.2001) (citing Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)).

For all of the foregoing reasons, the judgment of the Court of Appeals is reversed; the trial court’s order of dismissal is vacated and the case is remanded for proceedings consistent with this opinion.

LAMBERT, C.J., GRAVES, ROACH, SCOTT, and WINTERSHEIMER, JJ. concur.

COOPER, and JOHNSTONE, JJ. concur in result only.

      . Judge Combs dissented.


author: MINTON, Judge.

text:
    Homer BAKER, Appellant, v. CAMPBELL COUNTY BOARD OF EDUCATION, Appellee.
    No. 2004-CA-001928-MR.
    Court of Appeals of Kentucky.
    Oct. 28, 2005.

      Kenneth W. Scott Florence, KY, for appellant.
    Jason V. Reed, Garry L. Edmondson, Covington, KY, for appellee.
    Before MINTON, SCHRODER, and TAYLOR, Judges.
   OPINION

MINTON, Judge.

Homer Baker appeals the order of the Campbell Circuit Court granting the Campbell County Board of Education’s motion to dismiss. Baker’s suit was based upon his claim that the Board refused to hire him as punishment for his having successfully sued the Board in federal court. In dismissing the action, the circuit court correctly ruled that Kentucky does not recognize a common law cause of action for retaliatory failure to hire. We decline Baker’s invitation to adopt the cause of action in Kentucky and we affirm the dismissal.

The relevant facts are largely undisputed. Baker, a former teacher, was terminated from his job as a bus driver for the Board in April 2000 for allegedly coercing or inducing other bus drivers into staying home from work. Later in 2000, Baker filed an action in the United States District Court for the Eastern District of Kentucky, alleging, among other things, that the Board violated his due process rights by not affording him a proper post-termination hearing. In April 2002, the Board’s motion for summary judgment was denied, at which time the federal court explicitly found that Baker’s procedural due process rights were violated when Campbell County School Superintendent Roger Brady served as Baker’s post-termination hearing officer after having also previously signed Baker’s letter of dismissal.

Meanwhile, in July 2002, while Baker’s federal case was heading toward trial, Ann Painter, Principal of A.J. Jolly Elementary School, offered Baker a position as a part-time physical education teacher, an offer that Baker accepted. When Painter told Superintendent Brady of her intention to hire Baker, Brady allegedly replied, “No. [N]ot that one.... ” Ultimately, Baker was not hired for the part-time teacher position.

In September 2002, Baker’s federal case went to trial before a jury, which found in his favor. In November 2003, before the Sixth Circuit ruled on the Board’s appeal, the parties reached a settlement in which Baker received $60,000 from the Board in exchange for waiving his right to reinstatement as a bus driver.

Four months later, Baker filed this action in the Campbell Circuit Court, alleging that the Board wrongfully refused to hire him as a part-time teacher in retaliation for his federal lawsuit. Baker’s amended complaint contended that “[s]uch retaliation is contrary to well defined public policy embodied in, and guaranteed by the First Amendment to the United States Constitution and by Section 1 and Section 14 of the Constitution of the Commonwealth of Kentucky.” In lieu of an answer, the Board filed a motion to dismiss the original complaint and a supplemental motion to dismiss the amended complaint. Among the many arguments for dismissal set forth by the Board, the one the trial court relied upon was the Board’s contention that Kentucky does not recognize a common law cause of action for retaliatory failure to hire.

Before we reach the merits of Baker’s appeal, we must first address the Board’s contention that Baker’s brief should be stricken for failure to comply with Kentucky Rules of Civil Procedure (“CR”) 76.12(4)(c)(v), which requires an appellant’s brief to contain a statement as to whether the arguments in the brief were preserved for appellate review. Baker’s brief clearly does not contain a statement regarding how (or if) his arguments were preserved for appellate review. But dismissal based upon a failure to comply with CR 76.12 is not automatic. In fact, as the record in this case is sparse and it is clear that Baker vigorously opposed the Board’s motion to dismiss, sanctions for Baker’s technical violation of CR 76.12 are not warranted.

As we review the propriety of the trial court’s grant of summary judgment, we are mindful that summary judgment was appropriate only if the Board showed that Baker “could not prevail under any circumstances.” In ruling on a motion for summary judgment, we must view the evidence in the light most favorable to the non-movant. An appellate court reviewing a grant of summary judgment must determine whether the trial court correctly found that there were no genuine issues of material fact. As findings of fact are not at issue, the trial court’s decision is entitled to no deference.

The issue before us is whether Kentucky should recognize a common law cause of action for retaliatory refusal to hire that is based upon only public policy. Baker concedes that his proposed cause of action is not expressly permitted by any statute or reported decision by any Kentucky court. Since Baker’s complaint does not reference any statutes creating such a cause of action, he is left to argue that retaliatory refusal to hire is prohibited by the public policy of Kentucky, as expressed in Sections 1 and 14 of the Kentucky Constitution.

The parties have not cited, nor have we independently located, any cases recognizing or refusing to recognize a cause of action for retaliatory refusal to hire. The most analogous cases are the wrongful discharge cases. So we must use those wrongful discharge cases as a guide to resolving the public policy arguments presented in this appeal.

Employment in Kentucky is, generally, at-will, meaning that “ordinarily an employer may discharge [an] at-will employee for good cause, for no cause, or for a cause that some might view as morally indefensible.” By analogy, an employer should be able to refuse to hire an employee for any cause not specifically prohibited by applicable state or federal authorities. But the Kentucky Supreme Court has recognized narrow public-policy-based exceptions to the at-will employment doctrine. For example, that Court found that “implicit in the Workers’ Compensation Act ⅛ a public policy that an employee has a right to be free to assert a lawful claim for benefits without suffering retaliatory discharge.’ ” And the Supreme Court established very specific limitations on “ ‘any judicial exceptions to the employment-at-will doctrine.’ ” Those limitations are as follows:

1) The discharge [or, presumably, failure to hire] must be contrary to a fundamental and well-defined public policy as evidenced by existing law.
2) That policy must be evidenced by a constitutional or statutory provision.
3) The decision of whether the public policy asserted meets these criteria is a question of law for the court to decide, not a question of fact.

Baker’s proposed cause of action cannot meet those criteria. The Kentucky Supreme Court has already rejected a claim of wrongful discharge based on the First Amendment to the United States Constitution and its counterpart, Section 1 of the Kentucky Constitution. Thus, Section 1 must also be an inappropriate vehicle for Baker’s proposed retaliatory failure to hire claim. Furthermore, the Kentucky Supreme Court has specifically rejected a wrongful discharge claim based upon Section 14, holding that “Section 14 has nothing to do with employment rights as such.” And Baker has not pointed to any authority from this Commonwealth showing that any public policy involving retaliatory failure to hire exists, much less exists in a “well-defined” state, as required by Grzyb. Finally, the existence of an established relationship between an employer and an employee creates certain expectations of conduct and trust that simply do not exist between an employer and a job applicant. So it is logical that public policy would afford more protections to an employee than to a prospective employee.

Lest this opinion be misconstrued, we do not pass upon the propriety of Brad/s alleged refusal to permit Baker to be hired. Rather, we hold only that no cause of action exists for retaliatory failure to hire under the public policy of Kentucky.

For the foregoing reasons, the judgment of the Campbell Circuit Court is affirmed.

ALL CONCUR.

      .Although the trial court styled its order as one granting the Board’s motion to dismiss, it appears that the order actually granted summary judgment because the trial court’s order did not recite that it had excluded the exhibits attached to Baker’s response to the Board's motion to dismiss (which consisted of portions of the record in Baker’s previously decided federal action). See, e.g., Vigue v. Underwood, 139 S.W.3d 168, 169-170 (Ky.App.2004). ("Since the trial court apparently considered matters outside of the pleadings ... in arriving at its decision to dismiss Vigue's petition for declaration of rights, we must treat the ruling as a summary judgment.")

      . To the extent that any facts- recited herein may be disputed, they are presented in the light most favorable to Baker, as is required in resolving a motion for summary judgment. See Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.1991). ("The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor.”)

      . That federal case caus.e number is Civil Action No. 2000-253.

      . Judge Bertlesman’s order states: ”[T]his Court believes that Superintendent Brady was not an impartial hearing officer because he signed the plaintiff's termination letter, and this termination decision was the subject of the hearing- over which he presided. Therefore, this Court holds that the plaintiff was denied procedural due process because the decisionmaker at his hearing was not impartial.”

      . A.J. Jolly Elementary is within the Campbell County School District.

      . Section 1 of the Kentucky Constitution provides, among other things, that all people have the right to free speech, as well as to "apply[] to those invested with the power of government for redress of grievances or other proper purposes, by petition, address or remonstrance.” Section 14 provides in its entirety that: "[a]ll courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”

      . The amended complaint added a reference to Section 14 of the Kentucky Constitution, as well as a reference to the First Amendment to the United States Constitution.

      . The trial court’s order granting the Board’s motion states that ”[t]he cause of action asserted by the Plaintiff has never been recognized as existing under Kentucky law.”

      . CR 76.12(4)(c)(v) provides that an appellant’s brief shall contain ”[a]n ‘ARGUMENT’ conforming to the Statement of Points and Authorities, with ample supportive references to the record and citations of authority pertinent to each issue of law and which shall contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.”

      . See Cornette v. Holiday Inn Express, 32 S.W.3d 106, 109 (Ky.App.2000).

      . The Board inexplicably and erroneously contends that Baker did not argue below that his claims were not based directly on the Kentucky and United States Constitutions, but that those documents were cited merely as examples of public policy. However, Baker’s brief in opposition to the Board’s motion to dismiss clearly states that "Plaintiff, while relying on constitutional provisions, is not suing under those provisions, but instead is citing them as evidence of an accepted public policy.”

      . Cornette, 32 S.W.3d at 109. ("Finally, ap-pellees argue that this court should not consider the arguments advanced for reversal because of appellant’s failure to demonstrate in her brief how the issues were preserved for review as required by CR 76.12(4)(c).... We are convinced that the failure to comply with the rule is not fatal in this instance because the record consists of only a few pleadings, a few brief hearings related to the motions for summary judgment, and a few very brief depositions. Reference to the specific portion of this brief record is not essential where the propriety of summary disposition was clearly joined at every stage of the proceeding.")

      . Steelvest, 807 S.W.2d at 480 (citing Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255 (Ky.1985)).

      . Id.

      . Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App.1996).

      . Id.

      . A retaliatory refusal to hire could, theoretically, be encompassed by 42 U.S.C. § 1983, which prevents someone acting under color of state law from infringing with another person’s rights. But in Kentucky, the statute of limitations for filing a § 1983 claim is one year, as is the period for filing a personal injury claim. See, e.g., Million v. Raymer, 139 S.W.3d 914, 919 (Ky.2004). Inexplicably, Baker did not file the current action until well after the one-year statute of limitations for § 1983 claims had expired. Thus, his only recourse is to aver that his claim is based upon the Board's violation of a public policy. Baker contends that the statute of limitations for a retaliatory refusal to hire claim should be five years in accordance with that provided for wrongful discharge cases. See Bednarek v.

        United Food and Commercial Workers Int'l. Union, Local Union 227, 780 S.W.2d 630, 632 (Ky.App.1989). Although Baker’s statute of limitations argument is superficially attractive, we need not decide what statute of limitations applies to a non-existent cause of action.

      .Although referenced in Baker’s amended complaint, the First Amendment to the United States Constitution affords him no relief because it is necessary for a plaintiff to cite and utilize 42 U.S.C. § 1983 to bring a cause of action under that constitutional provision. See Henderson v. Corrections Corp. of America, 918 F.Supp. 204, 208 (E.D.Tenn.1996). ("A plaintiff must allege a cause of action under 42 U.S.C. § 1983 in order to bring a claim of a constitutional violation of the First or Fourteenth Amendments.”) Consequently, as Baker did not (and now cannot) reference § 1983 in his complaint or amended complaint, his claim must rise or fall solely based upon Sections 1 and 14 of the Kentucky Constitution.

      . Firestone Textile Co. Div. v. Meadows, 666 S.W.2d 730, 731 (Ky.1983).

      . For example, KRS 342.197(2)(a) prohibits an employer from failing to hire a prospective employee solely because the employee has been diagnosed with occupational pneumoco-niosis.

      . Boykins v. Housing Authority of Louisville, 842 S.W.2d 527, 529 (Ky.1992) (quoting Firestone, 666 S.W.2d at 732).

      . Grzyb v. Evans, 700 S.W.2d 399, 401 (Ky.1985) (quoting Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 335 N.W.2d 834, 835 (1983)).

      . Id. at 401.

      . Id. at 402.

        .Boykins, 842 S.W.2d at 530. Baker unsuccessfully attempts to get around that very specific holding by apparently arguing that there was no adverse employment action in Boykins but that such a condition existed in his case. See Reply Brief, p. 3. ("We agree with the majority opinion in Boykins [citation omitted] that Section 14 of the Kentucky Constitution has nothing to do with employment rights as such. But here there is an adverse employment action. There should be sufficient grounds to support a constitutional basis for his instant claim as a matter of public policy.”) Baker’s conclusoiy argument is curious in that the plaintiff in Boykins was terminated, which was undoubtedly an adverse employment action. Furthermore, although the ultimate holding in Boykins is, on its face, specifically limited to the fact pattern presented, the discussion of public policy exceptions to the at-will employment doctrine is quite helpful in resolving the issues presented in the case at hand.

      . See n. 22. See also Firestone, 666 S.W.2d at 733. ("Employers as a group have a legitimate interest to protect by having the cause of action for wrongful discharge clearly defined and suitably controlled.”)

      . We also express no opinion as to whether Baker could have prevailed if he had timely filed his action seeking relief under federal law, such as § 1983.

      . Having found that no common law cause of action for retaliatory failure to hire exists under Kentucky law, we decline to address any ancillary issues presented in the briefs, such as whether Baker has met the prima facie elements of a retaliation claim, or whether Brady had the ultimate authority to hire employees (or veto the hiring of employees) on behalf of the Board.